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Commonwealth v. Villalobos

Appeals Court of Massachusetts, Suffolk

May 27, 2016


          Heard: September 10, 2015.

         Indictments found and returned in the Superior Court Department on November 9, 2009.

         The cases were tried before Patrick F. Brady, J., and a motion for a new trial was heard by him.

          Elda S. James for the defendant.

          Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, with her) for the Commonwealth.

          Present: Green, Rubin, & Hanlon, JJ.

          HANLON, J.

         After a joint jury trial, [1] 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[2] and one on Omar Castillo.[3] 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.


         The 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.

         Also at Club 33 that night were the five victims.[4] 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.

         At some 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.

         When 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.


         1. Sufficiency of the evidence.

         The 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.

         "We 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." Ibid.

         Based 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.[5] 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."

         "The 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.

         2. Failure to conduct a voir dire.

         The 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."

         The 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.

         At the 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) .

         The Supreme Judicial Court addressed this issue in three recent cases.[6] See Commonwealth v. McGhee, 470 Mass. 638 (2015); Commonwealth v. The Ngoc Tran, 471 Mass. 179 (2015); Commonwealth v. Vaughn, 471 Mass. 398 (2015).[7] 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.[8] 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 responded:

'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, ...

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