Heard: September 10, 2015.
found and returned in the Superior Court Department on
November 9, 2009.
cases were tried before Patrick F. Brady, J., and a
motion for a new trial was heard by him.
S. James for the defendant.
Teo, Assistant District Attorney (David J. Fredette,
Assistant District Attorney, with her) for the Commonwealth.
Present: Green, Rubin, & Hanlon, JJ.
joint jury trial,  the defendant, Anthony Villalobos, was
convicted of the lesser included offense of involuntary
manslaughter of Jose Alicea and two counts of assault and
battery, one on Gregory Pimental and one on Omar
Castillo. He appeals from the convictions and also
from the denial of his motion for a new trial, arguing that
(1) the evidence was insufficient to support his convictions;
(2) the judge erroneously failed to conduct a voir dire of
allegedly sleeping jurors; (3) the prosecutor made improper
and prejudicial statements during closing argument; and (4)
trial counsel was ineffective in attempting to exclude at
trial statements the defendant had made to the police,
because counsel failed to raise the issue of whether the
defendant had invoked his right to remain silent. We affirm.
jury could have found the following facts. On August 20,
2009, the defendant and a large group of others attended the
funeral of a friend in Lynn; many of the funeral attendees
wore red and black tuxedos to honor the deceased. Later that
night, a group of the attendees went to Club 33 in Boston,
arriving in two limousines, a Porsche and a Cadillac, with
most still wearing the red and black tuxedos. The defendant
was part of this group but, instead of a tuxedo, he was
wearing a white T-shirt, a black button down shirt with a
picture of his deceased friend on the back, and black pants;
the defendant also had long braided (or corn-rowed) hair.
Club 33 that night were the five victims. At closing time,
they left the club and walked by some of the defendant's
group standing by the Porsche limousine. Jose Alicea yelled
insults at the defendant's group, igniting a violent
altercation between the two groups. There was testimony that
between six and twenty men from the defendant's group
were involved in the fight; none were seen to be
"holding back" from the initial fray with Alicea,
Castillo, and Pimental, nor did anyone attempt to stop the
fight in general, or the beating of any particular
individual. However, one of the limousine drivers, Kevin
Fulcher, and a member of Club 33's security team, Joseph
Cirino, unsuccessfully attempted to break up the brawl.
point after the assault on Alicea, the group pursued
Pimental, got him down on the ground, and, together,
proceeded to kick and beat him. Part of this assault on
Pimental was captured on Club 33's security cameras.
the police arrived, some of the defendant's group fled,
while others ran to each of the two limousines. The occupants
of the Porsche limousine were identified and briefly
interviewed by the police, and then released. After Cirino
informed the police detectives that he could identify the
individuals involved in the fight, the eighteen occupants of
the Cadillac limousine, including the defendant, were
subjected to an impromptu identification procedure. Cirino
identified the defendant and three other men as the
"more aggressive" participants in the fight; the
defendant and eleven others were arrested at the scene.
Sufficiency of the evidence.
defendant first argues that the evidence was insufficient to
prove his participation as a joint venturer in the charged
offenses and, therefore, the judge erred in declining to
allow his motion for a required finding of not guilty at the
close of the Commonwealth's case. The defendant contends
that none of the testifying witnesses specifically observed
him participating in the assaults; there was conflicting
testimony as to whether any member of the group that attacked
the victims was "holding back" from the brawl; and
there was no physical evidence connecting the defendant to
any of the assaults.
review the denial of a motion for a required finding of not
guilty to determine 'whether the evidence viewed in the
light most favorable to the Commonwealth could have
"satisfied a rational trier of fact" of each
element of the crimes charged beyond a reasonable
doubt.'" Commonwealth v.
Deane, 458 Mass. 43, 50 (2010), quoting from
Commonwealth v. Garuti, 454 Mass.
48, 54 (2009) (citation omitted). Under the theory of joint
venture, the Commonwealth was required to prove beyond a
reasonable doubt that the defendant "was present at the
scene of the [incident], with the knowledge that another
intends to commit a crime or with intent to commit the crime
and by agreement was willing and available to assist if
necessary." Deane, supra at 50.
"However, the Commonwealth is not required to prove
exactly how a joint venturer participated."
on the testimony of the witnesses who observed the brawl, and
from the surveillance video recording that the jury viewed,
the jury reasonably could have concluded that the defendant
actively participated in the victims'
beatings. That is, viewing the evidence in the light
most favorable to the Commonwealth, the jury could have found
that the defendant "was at least a participant [in the
brawl], even if he was not the sole perpetrator, and that he
possessed the state of mind required for guilt."
Commonwealth v. Semedo, 456 Mass.
1, 8 (2010), quoting from Commonwealth v.
Dyer, 389 Mass. 677, 683 (1983). As in
Commonwealth v. Chhim, 447 Mass.
370, 380 (2006), "[A] vicious beating of one man by
several assailants creates an inference of intent to do
grievous bodily harm or, at least, to do an act which would
create a plain and strong likelihood of death."
jury 'may consider circumstantial evidence of guilt
together with inferences drawn therefrom that appear
reasonable and not overly remote.'"
Commonwealth v. Lao, 443 Mass.
770, 779 (2005), quoting from Commonwealth
v. Andrews, 427 Mass. 434, 440 (1998).
"If, from the evidence, conflicting inferences are
possible, it is for the jury to determine where the truth
lies, for the weight and credibility of the evidence is
wholly within their province." Lao,
supra. We are satisfied that there was no error in
the denial of the defendant's motion for a required
finding of not guilty.
Failure to conduct a voir dire.
defendant next argues that the convictions should be reversed
because "the judge's failure to conduct a voir dire
of two sleeping jurors was error." On the eleventh day
of trial, the prosecutor said to the judge that one juror had
fallen asleep "several times" during the testimony.
The judge promised to "keep an eye on her" and to
take action if necessary. None of the defense counsel made
any comment at all. At the end of the court day, the judge
raised the issue again, seeking clarification about which
juror the prosecutor had been describing. Once the prosecutor
described her more particularly, the judge stated that he had
watched the juror in question (and another) and "they
both appear to be alert and taking notes .... But if you see
anything like that, bring it to my attention, and I'll
pay special attention." The defendant's lawyer said
nothing. A codefendant's lawyer stated that he had paid
attention to the juror and "she seemed to be alert
throughout the afternoon." The judge responded,
"Yes. She seems to be smiling. ... So I'll keep
watching and we'll see."
following day, the prosecutor spoke to the judge about a
different juror. "Front row, third from the left.
He's got a newborn baby. I mean, he was sound asleep
during the cross-examinations. I don't know what you want
me to do, Judge. I'll call the Court Officers
[sic] attention to it." The judge asked,
"[W]hat do you want me to do about it?" The
prosecutor said, "I'm just raising the Court's
attention to it." The judge responded, "I'll do
my best if I notice it to take a stretch break or
something." The prosecutor replied, "I think that
both sides deserve to have jurors that are able to stay
awake, " and the judge stated, "Obviously, but I
have to notice it." The prosecutor stated, "If they
can't stay awake, then I want them excused. That's
what I want." The judge responded, "Okay. That
gentleman I have not noticed at any time prior to today
falling asleep. I didn't notice it a half hour ago or
hour ago." None of the three defense counsel said
anything at all. Thereafter, the court took a break so that
one of the defendants could go to the bathroom.
end of the court day, the judge called counsel to side bar,
and said, "Okay. I was paying close attention to the
juror." The prosecutor responded, "Everybody was
good this afternoon, Judge, I agree. I think it helps with
the window open, too." The judge then said, "And if
I do see something, I will just take a stretch break."
Again, all three defense counsel were silent.
"'A judicial observation that a juror is asleep, or
a judge's receipt of reliable information to that effect,
requires prompt judicial intervention to protect the rights
of the defendant and the rights of the public, which for
intrinsic and instrumental reasons also has a right to
decisions made by alert and attentive jurors.'
Commonwealth v. Dancy, 75
Mass.App.Ct. 175, 181 (2009). The judge has 'discretion
regarding the nature of the intervention, ' j_d., and not
every complaint regarding juror attentiveness requires a voir
dire, see Commonwealth v. Braun,
74 Mass.App.Ct. 904, 905 (2009). The burden is on the
defendant to show that the judge's decision in the matter
was 'arbitrary or unreasonable.'
Commonwealth v. Brown, 364 Mass.
471, 476 (1973)." Commonwealth v.
Beneche, 458 Mass. 61, 78 (2010) .
Supreme Judicial Court addressed this issue in three recent
cases. See Commonwealth v.
McGhee, 470 Mass. 638 (2015); Commonwealth
v. The Ngoc Tran, 471 Mass. 179 (2015);
Commonwealth v. Vaughn, 471 Mass.
398 (2015). In McGhee, a juror reported to
the court on the second day of trial that one of the jurors
had been sleeping the day before during the testimony of two
of the three victims in the case. Neither the prosecutor nor
defense counsel had seen the juror sleeping and the judge
"pointed out that '[s]ome people, when they
concentrate, they close their eyes.' The reporting juror
'I agree with that, and that's why I questioned it
for a while. But when the snoring came; and there was one
other thing that came after that. It was -- you know when you
wake up after a nap, the head nod, the bad breath. That's
what really hit me, ...