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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.




     1
       Justice Hines participated in the deliberation on this
case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
                                                                     2


    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
                                                                      3


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 juror

referred to in the first question was the same juror referred to

in the second question, although there is no basis in the record

for a conclusion that both notes refer to the same juror.

Nonetheless, the judge stated, "[I]f you read between the lines

here . . . the reason for the disagreement isn't that somebody

might be asleep but has a different [view] of the evidence."

    Discussion.    1.   The first jury question.   We turn first to

the jury question about a sleeping juror. Our appellate courts

have had a substantial amount to say about this in the past

several years, and of course we recognize that the trial judge

in this case did not have the benefit of this teaching.

    "[A] judge's receipt of reliable information" that a juror

was asleep during evidence requires a voir dire of the jurors.

Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), quoting from

Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009).     See

Commonwealth v. Braun, 74 Mass. App. Ct. 904, 905 (2009).     The

failure to conduct a voir dire in the face of a substantial

reason to think a juror is sleeping during trial is reversible

error because it prevents the judge from determining the extent

of the sleeping and so from having the ability to properly

exercise his or her discretion in handling the issue.
                                                                  4


    Notwithstanding the judge's observations and his concerns

about juror disagreement, none of his conclusions amounts to a

finding that the juror was not asleep.    In the face of a

question from the jury, of which the juror in question was a

member, reporting that a juror was in fact asleep during

evidence -- receipt of reliable information that a juror was

asleep -- the judge was required under Braun to conduct a voir

dire.   "By not conducting a voir dire, the judge prevented

himself from obtaining the information necessary to a proper

exercise of discretion."   Commonwealth v. Braun, 74 Mass. App.

Ct. at 905.

    Indeed, part of the reason a voir dire has been held

necessary in circumstances such as these is that "[u]ncertainty

that a juror is asleep is not the equivalent of a finding that

the juror is awake."   Ibid.   The judge's concerns about juror

deliberations were appropriate, but, subsequent to the trial in

this case, we have explained how to conduct a "sensitive" voir

dire of the jurors about sleeping during trial without getting

into questions about deliberations.    As we explained in

Commonwealth v. Dancy, 75 Mass. App. Ct. at 181, "the inquiry

must," of course, "stay clear of the juror's personal

recollections of the substance of the evidence he saw or

observed.   Inquiry into that area would inevitably reveal

aspects of the juror's thought processes, thus entering an area
                                                                     5


where judicial exploration is prohibited.    Instead, the inquiry

should focus on how much of the evidence the juror has heard and

witnessed and any impediments he or she may have to hearing and

seeing the rest."   (Citation omitted.)

     The Commonwealth puts forward an independent argument that

reversal is unwarranted because there was no objection from the

defendant to the failure to voir dire the jury.   In Dancy, we

indicated that a sleeping juror was "a structural error . . . that

so infringes on a defendant's right to the basic components of a

fair trial that it can never be considered harmless."   75 Mass.

App. Ct. at 182, quoting from Commonwealth v. Villanueva, 47 Mass.

App. Ct. 905, 906 (1999).   And in Commonwealth v. Dyous, 79 Mass.

App. Ct. 508, 512-514 (2011), we reversed in a case where the

defendant did not object to the trial judge taking no action in

the face of a report of a possibly sleeping juror, and neither

party sought voir dire in the trial court.   Although structural

rights may be waived -- even the right to a trial may be waived

through a guilty plea colloquy -- Dyous stands for the proposition

that, in the face of a judge's receipt of reliable information a

juror was asleep, failure to request a voir dire is not sufficient

to waive the protections that insure "the defendant's and the

public's right" to a conscious jury.   Id. at 513.

     Further, even if an objection were otherwise required, in

the circumstances of this case we would not insist upon it.      The
                                                                    6


prosecutor asked for a voir dire, and the defendant did not

oppose the Commonwealth's motion.   The judge ruled that he would

not conduct a voir dire because he concluded that he could not

do so without improperly invading the jury's deliberative

process.   In light of that reasoning, a further objection by the

defendant would have been futile.   At least in these

circumstances -- where the judge had an opportunity to consider

the question, the defendant did not oppose the voir dire, and

the judge explained that he did not believe he could properly

conduct a voir dire -- it would elevate form over substance to

require the defendant to interpose a futile objection in order

to preserve his rights.   Cf. Commonwealth v. Vasquez, 456 Mass.

350, 357 n.9 & 358-359 (2010) (surveying futility jurisprudence

and holding that "because an objection to the admission of a

drug certificate would have been futile, the rationale for

denying the defendant a more favorable standard of review is not

applicable").

    "Because there was no voir dire hearing and there were no

findings establishing that the juror had been attentive and was

capable of rendering a verdict based on all of the evidence, the

defendant is entitled to the benefit of the doubt as to the

juror's attentiveness and is therefore entitled to a new trial."

Commonwealth v. Dyous, 79 Mass. App. Ct. at 514.
                                                                      7


    2.   Other issues.   a.    Our conclusion obviates the need to

address most of the defendant's other claims.     We must, however,

address the alleged insufficiency of the evidence to prove

intent permanently to deprive the victim of his car at the time

of the assault.   The evidence included the following:    The

defendant's car was a "fully loaded" 1995 beige Acura Integra,

described by the victim as a "high profile" car with custom

paint, rims, and exhaust.     Prior to the alleged carjacking, the

defendant, a passenger in a red vehicle driven by Steve Kenney,

a friend of the victim in this case, left the red car,

approached the victim outside a convenience store, and asked

details about the car.   When the victim drove away from the

convenience store, Kenney, at the defendant's instigation

followed him.   And, immediately before the carjacking, when the

Acura stopped in front of the house of a friend of the victim,

the red car pulled up alongside it and Kenney asked the victim

details about the vehicle, if it was for sale, and how much it

was worth.   Given these questions showing interest in the car,

the evidence with respect to intent permanently to deprive the

victim of his car was sufficient under the familiar Latimore

standard to support the defendant's conviction.     See

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

    b.   As to the judge's allowing eighteen or nineteen prior

convictions to be introduced for impeachment should the
                                                                   8


defendant choose to testify, which the defendant asserts was an

abuse of discretion, we trust that should there be a retrial the

judge will be attentive to insure that convictions allowed for

impeachment purposes will not present a risk that the jury will

conclude that the defendant is of a criminal character,

warranting punishment because of that character rather than

because of the evidence at trial.

    c.   Finally, we must address an appeal from denial of a

motion by the defendant seeking relief on the basis of undue

delay in the appeal.   The longest delay, from 2007 to 2010,

which was apparently related to the ordering and production of

transcripts, does not appear to have been the result of any

intentional act.   Commonwealth v. Swenson, 368 Mass. 268, 279-

280 (1975) ("[D]eliberate blocking of appellate rights or

inordinate and prejudicial delay without a defendant's consent,

may rise to the level of constitutional error").   The defendant

focuses his challenge on a stay of appeal obtained by the

Commonwealth in 2013 to allow it to expand the record to include

a document that was before the judge during sentencing and that

was necessary to allow this court to understand the judge's

ruling with respect to the use of prior convictions for

impeachment.   As to this delay, we cannot conclude, absent a

showing that the procedure undertaken by the Commonwealth was

designed deliberately to interpose a delay in the appeal, that,
                                                                  9


as the defendant suggests, the Commonwealth was required to

explain the relevance of the document to the defendant and to

seek a stipulation to its inclusion in the record, rather than

going through the formal procedure for expansion of the record.

Consequently, the denial of the motion is affirmed.

                                   Judgments reversed.

                                   Verdicts set aside.

                                   Order denying motion to
                                     vacate convictions due
                                     to appellate delay
                                     affirmed.
