Commonwealth v. Garcia (Lawyers Weekly No. 11-008-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑831 Appeals Court COMMONWEALTH vs. PEDRO GARCIA, JR. No. 11‑P‑831. Hampden. September 10, 2013. ‑ February 4, 2014. Present: Cohen, Katzmann, & Agnes, JJ. Jury and Jurors. Practice, Criminal, Jury and jurors, Deliberation of jury, Substitution of alternate juror. Indictment found and returned in the Superior Court Department on February 25, 2009. The case was tried before Peter A. Velis, J., and a motion for a new trial, filed on August 30, 2011, was considered by him. Ellen A. Jawitz for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth. COHEN, J. After a Superior Court jury trial, the defendant and a codefendant were found guilty of armed robbery, in violation of G. L. c. 265, § 17.[1] The charges arose from the theft at knifepoint of four dollars and two packages of cigarettes from a resident of a homeless shelter. In this appeal from his conviction, the defendant’s sole contention is that the judge’s discharge of a deliberating juror was procedurally defective.[2] We agree that the applicable protocols were not followed, and conclude that reversal is required. Background. On December 17, 2009, at 12:31 P.M., the jury were sent out to begin their deliberations. After the jurors left the courtroom, the judge was informed that a court officer had observed a juror taking notes during the charge. The juror in question, no. 31 (Juror 31), was brought into the courtroom. In response to questioning by the judge, Juror 31 acknowledged that he had taken notes during the judge’s instructions, explaining that he “didn’t think [he] would actually have the chance to remember much of it, and [he] was trying real hard to stay awake.” He also stated that, although he had not taken notes while witnesses were actually testifying, he had “jot[ted] down a few things” during breaks. He told the judge that he had not shared his notes with the other jurors and that he had never fallen asleep during the trial. He also said that on the first day of trial, the jury had asked one of the court officers whether they could take notes, but that no one had gotten back to them. He stated that they had discussed how they were “going to remember all these things and the jargon and all […]