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Commonwealth v. Villalobos (Lawyers Weekly No. 10-171-17)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12185 COMMONWEALTH vs. ANTHONY VILLALOBOS. October 26, 2017. Practice, Criminal, Jury and jurors, Conduct of juror, Voir dire. Anthony 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 trial. Sleeping jurors. The 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.’”[1] 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. Villalobos has met his burden. Indeed, this case is much like McGhee, in which we determined that the […]

Commonwealth v. Villalobos (Lawyers Weekly No. 11-059-16)

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 14-P-497 Appeals Court COMMONWEALTH vs. ANTHONY VILLALOBOS. No. 14-P-497. Suffolk. September 10, 2015. – May 27, 2016. Present: Green, Rubin, & Hanlon, JJ. Homicide. Assault and Battery. Practice, Criminal, Required finding, Voir dire, Jury and jurors, Conduct of juror, Argument by prosecutor, New trial, Assistance of counsel, Admissions and confessions, Motion to suppress. Evidence, Joint venturer, Admissions and confessions. 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. 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. Background. 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 […]