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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]

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