Commonwealth v. Gonzalez (Lawyers Weekly No. 11-109-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1912 Appeals Court COMMONWEALTH vs. LUIS GONZALEZ. No. 11-P-1912. Essex. January 15, 2014. – September 5, 2014. Present: Cypher, Rubin, & Hines, JJ.[1] Jury and Jurors. Practice, Criminal, Jury and jurors, Deliberation of jury, Question by jury, Voir dire. Constitutional Law, Delay in appeal. Robbery. Intimidation of Witness. Indictments found and returned in the Superior Court Department on May 31, 2006. The cases were tried before David Lowy, J., and a motion for postconviction relief, filed on April 5, 2013, was heard by him. Sharon Fray-Witzer for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. RUBIN, J. Background. The defendant was convicted after a jury trial of armed carjacking, armed robbery, and intimidation of a witness. See G. L. c. 265, §§ 21A, 17; G. L. c. 268, § 13B. This is his direct appeal. During deliberations, the jurors sent the judge a question which read: ”It has come to the group’s attention that one juror fell asleep during the presentation of evidence and is not willing to accept others’ recollection of what was missed. Is this grounds to have the juror dismissed?” Although the prosecutor sought a voir dire, the judge declined to conduct one. He reasoned, “[I]f I were to voir dire this issue the only way to voir dire it would be to ask questions that get into the deliberative process.” The judge did say that he had “looked at the jury numerous times.” And, apparently assuming he knew which juror the question referred to, he said, “Every time I looked over . . . he never had his eyes shut for a significant period of time. And every time I looked at him it seemed that he was alert [and] paying attention . . . . I made a decision every time I looked over that he didn’t seem to me to be asleep. I gave it serious [consideration] numerous times.” A subsequent jury question read, “We have a juror (#1) who seems to be biased towards police in general. He laughs every time the word police even comes up and refuses to even contemplate a witness’s testimony because he believes the police gave a deal. Is this grounds for an alternate juror to be used?” The judge seems to have concluded that the […]