Criminal, Jury and jurors, Conduct of juror, Voir dire.
S. James (Mathew B. Zindroski also present) for the
Teo, Assistant District Attorney (David J. Fredette,
Assistant District Attorney, also present) for the
Villalobos appeals from his convictions of involuntary
manslaughter, as a lesser included offense of murder in the
second degree, and assault and battery and from the denial of
his motion for a new trial. The Appeals Court affirmed his
convictions in a divided opinion. Commonwealth v.
Villalobos, 89 Mass.App.Ct. 432 (2016) . See id. at
444-447 (Rubin, J., dissenting). We granted Villalobos's
application for further appellate review, 475 Mass. 1102
(2016), and now reverse the convictions and remand for a new
issue that divided the Appeals Court was the trial
judge's failure to conduct a voir dire after the
prosecutor reported that some jurors fell asleep during the
trial. "[A] judicial observation that a juror is asleep,
or a judge's receipt of reliable information to that
effect, requires prompt judicial intervention."
Commonwealth v. McGhee, 470 Mass. 638,
643-644 (2015), quoting Commonwealth v.
Beneche, 458 Mass. 61, 78 (2010). "[I]f a judge
receives a complaint or other information suggesting that a
juror was asleep or otherwise inattentive, the judge must
first determine whether that information is
'reliable.'" McGhee, supra at
644. If the judge determines that the information is not
reliable, no intervention is necessary. See Commonwealth
v. Vaughn, 471 Mass. 398, 412-413 (2015) (where
counsel's assertions that juror was sleeping during
charge were not found reliable, judge did not abuse
discretion by taking no further action). If, however, the
judge does find the information reliable, he or she
"must take further steps to determine the appropriate
intervention." McGhee, supra.
"Typically, the next step is to conduct a voir dire of
the potentially inattentive juror, in an attempt to
investigate whether that juror 'remains capable of
fulfilling his or her obligation to render a verdict based on
all of the evidence.'" Id., quoting
Commonwealth v. Dancy, 75 Mass.App.Ct. 175,
181 (2009). The judge has "substantial discretion in
this area, " and on appeal, "[t]he burden is on the
defendant to show that the judge's response to
information about a sleeping juror was 'arbitrary or
unreasonable.'" McGhee, supra,
quoting Beneche, supra.
has met his burden. Indeed, this case is much like
McGhee, in which we determined that the judge's
failure to intervene gave rise to "serious doubt that
the defendant received the fair trial to which he [was]
constitutionally entitled." McGhee, 470 Mass.
at 645, quoting Commonwealth v. Braun, 74
Mass.App.Ct. 904, 906 (2009) . As the Appeals Court
explained, during Villalobos's trial, the prosecutor
reported one day that one juror "had fallen asleep
'several times' during the testimony, " and the
next day, that a different juror "was sound asleep
during the cross-examinations." Villalobos, 89
Mass.App.Ct. 435-436. The judge, who did not have the benefit
of McGhee, did not give any indication that he
doubted the reliability of the prosecutor's reports, yet
he did not question the jurors to determine whether they had
in fact fallen asleep and, if so, what portions of the
evidence they might have missed. Instead, the judge simply
observed each juror for the rest of the day. I_d. Similarly,
in McGhee, supra at 642-645, one juror
reported that another juror had fallen "sound
asleep" and was even snoring, but the trial judge
declined to take action.
like in McGhee, the trial judge appears to have been
under the mistaken impression that he could not intervene
unless he personally observed a juror sleeping. See
Villalobos, 89 Mass.App.Ct. at 436 ("The
prosecutor [stated], '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'" [emphasis added]). Cf. McGhee, 470
Mass. at 645 ("The judge's reason for taking no
further action . . . was essentially that he had not himself
seen the juror sleeping"). On the contrary, the receipt
of reliable information from any source, not just
the judge's own observation, that a juror is sleeping
requires prompt judicial intervention. The judge's
apparent belief that he lacked discretion to do anything
other than observe the jurors was itself an error of law. Cf.
Commonwealth v. Ramos, 402 Mass. 209, 216
(1988), and cases cited ("A ruling that the court has no
power to direct an act, when in fact the act is
discretionary, is an error of law").
Commonwealth argues that the sleeping jurors missed minimal
and relatively inconsequential portions of the testimony.
Based on only the record before us, however, we cannot be
sure that this is true. The purpose of a voir dire is to
investigate the report that one or more jurors were sleeping
and to determine what, if anything, the sleeping jurors
missed. Because the judge did not conduct a voir dire, we do
not have these essential findings.
circumstances of this case, the judge's response to the
prosecutor's reports leaves us with "serious doubt
that the defendant received the fair trial to which he is
constitutionally entitled." McGhee, 470 Mass.
at 645, quoting Braun, 74 Mass.App.Ct. at 906.
"The serious possibility that a juror was asleep for a
significant portion of the trial" is a structural error
and can never be considered harmless. McGhee,
supra at 645-646. The convictions must be vacated.
also argues that the evidence was insufficient to support his
convictions. For the reasons explained by the Appeals Court,
Villalobos, 89 Mass.App.Ct. at 433-435, we disagree.
Accordingly, Villalobos may be retried for the offenses of
which he was convicted. Because of our disposition, we need
not reach the other issues decided by the Appeals Court.