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SJC-11571

                 COMMONWEALTH   vs.   THE NGOC TRAN.



       Middlesex.       December 5, 2014. - April 10, 2015.

    Present:    Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.


Homicide. Assault and Battery by Means of a Dangerous Weapon.
     Constitutional Law, Admissions and confessions,
     Voluntariness of statement. Evidence, Admissions and
     confessions, Voluntariness of statement. Mental
     Impairment. Practice, Criminal, Admissions and
     confessions, Voluntariness of statement, Instructions to
     jury, Duplicative convictions, Jury and jurors, Conduct of
     juror, Capital case. Jury and Jurors.



     Indictments found and returned in the Superior Court
Department on June 16, 2011.

    The cases were tried before David Ricciardone, J.


     Stephen Neyman for the defendant.
     Michael A. Kaneb, Assistant District Attorney, for the
Commonwealth.


    CORDY, J.    On April 28, 2011, Son Ngoc Tran was found dead

in her home.    The cause of her death was multiple blunt-impact

injuries to her head and brain inflicted by a rubber-headed
                                                                     2


mallet.     Dispatched to the scene to investigate, Lowell police

officers discovered the victim in a pool of blood in her

bathroom and her husband, the defendant, sobbing in the living

room.    As one officer approached, the defendant raised his hands

and said, "I killed my wife."

     The defendant was charged with murder in the first degree

and assault and battery by means of a dangerous weapon on a

person sixty years of age or older.     He filed a motion to

suppress statements he made in an interview with police

investigators shortly after his arrest, which was denied

following an evidentiary hearing.    At trial, the Commonwealth

proceeded with respect to the murder charge on theories of

deliberate premeditation and extreme atrocity and cruelty.     The

defense was not lack of criminal responsibility, but the

defendant's lack of the mental capacity to specifically intend

his actions or to act in a cruel or atrocious manner.     A

Middlesex County jury found the defendant guilty on both

charges.1

     On appeal, the defendant claims several errors.     We reject

each contention and find no reversible error arising from the


     1
       The defendant was sentenced consecutively for a term of
life without the possibility of parole on the conviction of
murder in the first degree, and to a sentence of not less than
nine and not more than ten years on the conviction of assault
and battery by means of a dangerous weapon on a person sixty
years of age or older.
                                                                      3


defendant's various claims.     Further, we conclude that there is

no basis for exercising our authority under G. L. c. 278, § 33E,

to reduce the verdict of murder to a lesser degree of guilt or

order a new trial.    Accordingly, we affirm the defendant's

convictions.

     Background.     We recite the facts in the light most

favorable to the Commonwealth, reserving certain details for our

analysis of the issues raised on appeal.

     At approximately 7 P.M. on April 28, 2011, the defendant

called Man Le,2 a family friend, and asked her to come to his

house the following day with his son, McKinley Tran.     There was

nothing unusual in the defendant's tone of voice, and when Man

asked the defendant why he wanted her to visit he told her,

"It's a secret."     The defendant also called McKinley directly

and asked him to come to his house the next day, stating, "You

will find out [why] when you come over."

     Sometime after these telephone calls, the defendant entered

the bathroom of the home he shared with the victim in Lowell,

armed with a metal-shafted, rubber-headed hammer.     The defendant

proceeded to use the mallet to attack the victim with repeated

blows to her head.    After the victim was knocked to the floor,

the defendant continued to strike her with the hammer on her

     2
       Where appropriate the defendant's family members and
family friend are referred to by their first names given their
common last names.
                                                                     4


face, skull, neck, arms, and legs until she was dead. The attack

caused fractures to her skull, eye sockets, and cheekbones,

multiple contusions to her brain, and numerous other injuries to

her arms, legs, and extremities.   Each of these injuries was

inflicted while the victim was still alive.

    At approximately 9 P.M., the defendant telephoned Man a

second time and said, "I killed her dead."     He then asked Man to

inform his son of this by telephone.    At this point, the

defendant's voice sounded "different," and he instructed Man,

"[C]all the police.   Come cuff me."    He explained that he

attempted to report the murder at a nearby police station, but

it was closed.

    Alerted by Man, McKinley and his wife, Chan Le,3 drove to

the defendant's house and arrived shortly after 9 P.M.       On

entering the house, Chan found the defendant sitting on the

living room couch.    The defendant was surrounded by several

chairs, which bore hand-lettered signs in both English and

Vietnamese warning of the risk of electric shock.     The victim

was found dead on the bathroom floor.     There was blood all over

the bathroom, as well as on the defendant's pants, shirt, face,

and hands.   The defendant told Chan that he had killed the

victim and asked not to be touched because he was "someone with

guilt."

    3
        Chan Le is also the niece of Man Le.
                                                                     5


    The defendant had planned to kill himself after killing the

victim.   He had written his children a five-page letter, blaming

the victim for treating him poorly and for "heartlessly

shatter[ing] the happiness of [the] family."    He wrote, "Now the

time has come for me to leave and take this wife with me. . . ."

The remainder of this letter provided his children with details

concerning the family automobiles and bank accounts.    After

killing the victim, the defendant wrapped the exposed ends of an

electrical cord, which he had previously spliced open, around

his two thumbs, and plugged the cord into an electrical outlet.

He received minor burns to his skin.

    Lowell police Officer Philip Valliant and his partner were

dispatched to the scene at approximately 9:30 P.M.     They found

the defendant, still seated on the living room couch, sobbing.

When Officer Valliant approached the defendant, he raised his

hands and told Officer Valliant, "I killed my wife.    I killed my

wife."    The defendant was placed under arrest and instructed to

walk to the kitchen and sit while the officers awaited the

arrival of additional police officers and medical personnel.

The defendant complied with these instructions and appeared

"calm" and "rational."

    The defendant insisted that the victim did nothing to

provoke him on the night of the killing.    Rather, he admitted to

killing her out of a deep hostility that developed over the
                                                                     6


course of their long and unhappy marriage.     The victim and the

defendant, both immigrants from Vietnam, were married for more

than thirty years at the time of the killing.     Throughout their

marriage, the defendant verbally and mentally abused the victim.

In the weeks leading up to the killing, the defendant and the

victim faced particular financial strain.     Moreover, the

defendant was convinced that the victim was "poison[ing] the

minds of [his] children" against him and blamed her for causing

him "endless suffering and anguish."      On the day of the killing,

the victim had announced to the defendant, their children, and

her friend that she was leaving him.

    Discussion.    1.   Miranda waiver.   The Commonwealth

presented evidence at trial that the defendant, after being

transported to the Lowell police station, agreed to speak with

Lowell police Sergeant Joseph Murray and State police Trooper

Erik Gagnon.   Sergeant Murray began advising the defendant of

the Miranda rights by reading from the Lowell police

department's preprinted Miranda advisement and waiver form.

Although the defendant had told the officers that he understood

them and read and spoke English, at some point it became

apparent that the defendant, a native Vietnamese speaker, had

some difficulty responding to Sergeant Murray's questions in

English.   Sergeant Murray asked the defendant if he would like

the assistance of a Vietnamese translator, to which the
                                                                    7


defendant indicated he would.   At this point, the interview

stopped.   After a series of telephone calls, Sergeant Murray was

able to obtain translation assistance from two Boston police

officers, Diep Nguyen and Hoang Nguyen.

     With the assistance of both a written Miranda advisement

printed in Vietnamese and a running translation provided by the

Boston police officers, the defendant was provided with complete

Miranda warnings both in English and Vietnamese.   After Sergeant

Murray read each of the enumerated warnings in English, the two

Boston police officers asked the defendant, who was consulting

the written Vietnamese translation, to confirm that he

understood Sergeant Murray's warning, either by asking the

defendant to explain the warning to them in Vietnamese or by

restating the warning in Vietnamese and asking if the defendant

understood.   On cross-examination at trial, Officer Diep Nguyen

acknowledged that these translations from English to Vietnamese

were "probably . . . not word for word."4   After receiving his

Miranda warnings, the defendant signed the Vietnamese language




     4
       At trial, the only discussion of the distinctions between
the English and Vietnamese advisements was on cross-examination
of Boston police Officer Diep Nguyen. For example, Officer
Nguyen testified that the English on the Lowell police
department form states, "You have the right to remain silent,"
whereas the translated Vietnamese form states, "You have the
right to remain silent, which means you don't have to answer any
questions."
                                                                     8


form, which indicated that he understood his rights, and told

the officers that he would speak with them.

    In the approximately forty-minute recorded interview that

followed, the defendant gave Sergeant Murray and Trooper Gagnon

a detailed account of the killing.    He again admitted to killing

his wife by hitting her in the head "[m]any times" with a

hammer.    He explained to the officers how he stopped his attack

at one point to muffle the victim's cries with toilet paper, and

then resumed.    The defendant explained to the officers how many

years of unhappiness led him to "plan[] to kill [the victim] and

then commit suicide."

    The judge instructed the jury, both when the recording was

played at trial and in his final charge, that they could

consider the defendant's statements only if the Commonwealth had

proved the voluntariness of the statements beyond a reasonable

doubt.    The judge did not instruct the jury that they should

specifically consider whether the defendant's Miranda waiver was

valid.    As the defendant did not request such an instruction,

and did not object to the form of the humane practice

instruction the judge issued, we review this claim to determine

whether any error created a substantial likelihood of a

miscarriage of justice.    See Commonwealth v. Sunahara, 455 Mass.

832, 836 (2010).
                                                                     9


    The defendant contends that it was error for the jury not

to be explicitly instructed that when considering whether to

accept the defendant's statements as evidence under the humane

practice rule, see Commonwealth v. Tavares, 385 Mass. 140, 149-

153, cert. denied, 457 U.S. 1137 (1982), they were entitled to

evaluate the validity of his Miranda waiver as a factor.    In

Tavares, we explained that, "[o]ur humane practice requires that

when statements amounting to a confession are offered in

evidence, the question whether they were voluntary is to be

decided at a preliminary hearing in the absence of the jury.

. . . If the judge decides that they are admissible, he should

then instruct the jury not to consider the confession if, upon

the whole evidence in the case, they are satisfied that it was

not the voluntary act of the defendant" (citations and

quotations omitted).   Id. at 149-150.   The defendant grounds his

argument in a footnote in Tavares in which we explained that

evidence bearing on whether Miranda warnings were properly given

and waived is relevant to the determination whether a

defendant's confession was voluntary and therefore may be

considered by the jury when making its over-all evaluation.      Id.

at 153 n.19.   We find the defendant's argument unpersuasive.

    In Commonwealth v. Cryer, 426 Mass. 562, 572 (1998), we

rejected the argument that a judge is obligated to instruct the

jury on specific factors they should consider when assessing
                                                                   10


voluntariness.    Moreover, "[i]n determining the propriety of a

jury instruction, we must consider the instruction in the

context in which it was delivered, in order to determine its

probable effect on the jury's understanding of their function."

Id.   Here, the judge, both when the recording of the interview

was played and in his final charge, detailed various factors the

jury could consider in their determination whether the

defendant's statements were voluntary, including "the nature of

the conversations" the defendant had with the police, as well as

whether the defendant was "confused to any extent" at the time

of the interview.     Additionally, the evidence presented at

trial, especially defense counsel's cross-examination of Officer

Diep Nguyen, "made clear to the jury what factors they should

consider in weighing whether the defendant's statements were

voluntary."   Id.    Further, the judge instructed the jury

repeatedly to consider the "totality of the surrounding

circumstances."     These instructions exceeded the minimum

required under Cryer, and provided sufficient direction for a

reasonable jury to disregard the defendant's statements if they

had a reasonable doubt about the voluntariness of his

statements.

      The defendant's argument rests on his contention that an

instruction directing the jury to consider the validity of his

Miranda waiver would have led them to consider that the
                                                                     11


Vietnamese translation of the Miranda advisements did not track

the English advisements "word for word," thereby casting real

doubt on the voluntariness of his statement.     As an initial

matter, we note that the judge found that the defendant

understood his Miranda rights prior to making his statement to

the police, and we discern no error in this finding.     In any

event, while "[t]he four warnings Miranda [v. Arizona, 384 U.S.

436, 444-445 (1966),] requires are invariable," the United

States Supreme Court "has not dictated the words in which the

essential information must be conveyed."     Florida v. Powell, 559

U.S. 50, 60 (2010).   See California v. Prysock, 453 U.S. 355,

359 (1981) ("no talismanic incantation" required to satisfy

Miranda's strictures).    "[R]eviewing courts are not required to

examine the words employed 'as if construing a will or defining

the terms of an easement.    The inquiry is simply whether the

warnings reasonably "conve[y] to [a suspect] his rights as

required by Miranda."'"     Powell, supra at 60, quoting Duckworth

v. Eagan, 492 U.S. 195, 203 (1989).     See Commonwealth v. Bins,

465 Mass. 348, 358 (2013) ("No prescribed set of words must be

used to provide the [Miranda] warnings . . ." [citation

omitted]).

    There is nothing to indicate that this standard was not

satisfied here, as the four essential Miranda warnings were
                                                                    12


reasonably conveyed to the defendant in his native language.5

The sufficiency of this translation is not diminished by the

fact that the precise Vietnamese words employed did not

completely mirror their English counterparts.    See Bins, 465

Mass. at 362-363 (waiver voluntary where Portuguese translation

that varied from precise English advisement still adequately

conveyed required warnings).    Here, no warning was omitted from

either recitation and none was "misstated to the point of being

contradictory."   Id. at 363.   Where the defendant has not shown

a substantive deficiency in the warnings he received, and the

four required warnings were reasonably conveyed in the

defendant's native language before he agreed to speak with the

police, the fact that the Vietnamese translation did not track

the English warnings "word for word" is of no legal consequence.

The totality of the circumstances demonstrates that the

defendant was advised of his rights in a meaningful way and

voluntarily waived them, and, in any event, the judge's

instructions on the issue of voluntariness did not give rise to

a substantial likelihood of a miscarriage of justice.6


     5
       Specifically, the defendant was advised that he had a
right to remain silent, anything he said may be used against
him, he had a right to speak to an attorney, and if he could not
afford an attorney one would be appointed for him.
     6
       Although we conclude that there was no substantial
likelihood of a miscarriage of justice in this case, a judge's
humane practice instruction should ordinarily advise the jury
                                                                   13


     2.   Mental impairment instruction.   The defendant also

argues that the judge provided deficient instructions regarding

his defense of mental impairment.    More specifically, he

contends that the instructions failed to define "mental

impairment," and failed to sufficiently emphasize the

Commonwealth's burden of proof.7    Yet, the model jury

instructions on homicide do not include a definition of the term

"mental impairment."   We have also not required or offered such

a definition.   "'All that we have ever required' be said to

juries about the effect of mental impairment on a defendant's

intent or knowledge is 'satisfied by a simple instruction that

the jury may consider credible evidence' of the mental

impairment 'in deciding whether the Commonwealth had met its


that among the many factors they may consider in determining
whether a statement allegedly made by the defendant is voluntary
is whether the Miranda warnings were given to and understood by
the defendant.
     7
       In his brief, the defendant quotes extensively from the
model jury instruction on lack of criminal responsibility, yet
he does not contend that the judge should have given such an
instruction. See Commonwealth v. Urrea, 443 Mass. 530, 535
(2005) (explaining distinction between mental impairment
doctrine and test regarding lack of criminal responsibility).
Although some of the defense expert's testimony arguably
supported a defense of lack of criminal responsibility, such an
instruction was not required, as it was not requested. See
Commonwealth v. Johnson, 422 Mass. 420, 424 (1996) ("Such an
instruction must be given if requested and supported by the
evidence"). Moreover, the defendant did not argue lack of
criminal responsibility in his closing argument. Finally, the
judge specifically asked defense counsel to confirm that she was
"not asking for an instruction on criminal responsibility," to
which she responded in the affirmative.
                                                                  14


burden of proving the defendant's state of mind beyond a

reasonable doubt.'"   Commonwealth v. Mercado, 456 Mass. 198, 207

(2010), quoting Commonwealth v. Sires, 413 Mass. 292, 300

(1992).

     Here, four times during his final charge, the judge

instructed the jury that they could consider "any credible

evidence" that the defendant suffered from a mental impairment

in determining whether the charges had been adequately proven

against him.8   Twice, the judge also reminded the jury of the

Commonwealth's burden of proof, which he discussed at length in

the general portion of his instructions.   These instructions

mirrored the model jury instructions on homicide, as well as the

instructions requested by the defendant, and they appropriately

explained the relationship between the Commonwealth's burden of

proof and the defendant's defense of mental impairment.

     Moreover, in assessing the adequacy of the language

employed in a jury charge, "we consider the jury charge as a

whole, looking for the interpretation a reasonable juror would

place on the judge's words" (citation and quotation omitted).

Commonwealth v. Harbin, 435 Mass. 654, 658 (2002).   Here, we


     8
       The judge gave this instruction once when addressing the
intent required for a conviction of murder in the first degree
on a theory of deliberate premeditation, twice when addressing
the intent required for a conviction of murder on a theory of
extreme atrocity or cruelty, and once more when addressing the
intent required for a conviction of murder in the second degree.
                                                                   15


cannot say that the term "mental impairment" is so obscure that

a reasonable jury would be unable to rely on the usual and

accepted meanings of these words to determine whether the

defendant was capable of informing the required intent.

Further, the jury heard testimony from two expert witnesses

regarding the defendant's claim of mental impairment and his

capacity to intend his actions at the time of the murder.

Accordingly, it was not error for the judge to leave the term

"mental impairment" undefined.

    Last, the judge was correct to abstain from stating that

the Commonwealth must prove beyond a reasonable doubt that the

defendant was not mentally impaired.   Evidence of impairment is

a "mere subsidiary fact[] that the jury consider in sifting the

circumstantial evidence as to [the defendant's] mental state."

Mercado, 456 Mass. at 207, quoting Commonwealth v. Waite, 422

Mass. 792, 805 (1996).   There is "no requirement that the jury

find these subsidiary facts and inferences beyond a reasonable

doubt."   Waite, supra at 806.   In sum, the judge's instruction

on mental impairment, particularly in light of the substantial

evidence offered to demonstrate the defendant's criminal intent,

did not give rise to a substantial likelihood of a miscarriage

of justice.

    3.    Duplicative convictions.   The defendant additionally

contends that his convictions of murder and assault and battery
                                                                  16


by means of a dangerous weapon on a person sixty years of age or

older were duplicative.    The defendant's argument relies on a

theory that convictions are duplicative if they arise out of a

single criminal episode.    We considered and rejected this theory

in Commonwealth v. Vick, 454 Mass. 418, 430-436 (2009), and the

defendant's reliance on pre-Vick case law is misplaced.     In

Vick, the defendant was convicted of, among other things,

assault and battery by means of a dangerous weapon causing

serious bodily injury and armed assault with intent to murder.

Id. at 419.   He argued that "the two offenses were so closely

related in fact as to constitute in substance but one crime."

Id. at 430-431.   There, while recognizing that a series of cases

provided some support for the view on which this argument

rested, see id. at 433-434, we ultimately rejected this theory

of merger and "affirmed the traditional elements-based

approach."    Commonwealth v. McCoy, 456 Mass. 838, 853 (2010).

See Vick, supra at 431.    Moreover, in Commonwealth v. Anderson,

461 Mass. 616, 632-634, cert. denied, 133 S. Ct. 433 (2012), we

invoked Vick to explicitly overrule Commonwealth v. Santos, 440

Mass. 281, 293-294 (2003), a case on which the defendant's brief

and theory of merger substantially relies.

    In Vick, 454 Mass. at 431, we explained, "[an] elements-

based approach remains the standard for determining whether

multiple convictions stemming from one criminal transaction are
                                                                   17


duplicative."    See Morey v. Commonwealth, 108 Mass. 433, 434-436

(1871).   "As long as each offense requires proof of an

additional element that the other does not, neither crime is a

lesser-included offense of the other, and convictions on both

are deemed to have been authorized by the Legislature and hence

not [duplicative]" (citation and quotation omitted).   Vick,

supra at 431.9   See Commonwealth v. Torres, 468 Mass. 286, 288-

289 (2014) (following Vick); Commonwealth v. Johnson, 461 Mass.

44, 52 (2011) (same).10

     As the defendant recognizes, under an elements-based

approach, each of his convictions requires proof of an element

not required by the other:    murder requires, among other things,

the death of the victim; the assault and battery charge requires

     9
       As explained in Commonwealth v. Vick, "[t]he question
whether two offenses are 'so closely related in fact as to
constitute in substance but a single crime' . . . becomes
pertinent in a single criminal proceeding where one crime is a
lesser included offense of the other, or where there are
multiple counts of the same offense." 454 Mass. 418, 435
(2009), quoting Commonwealth v. St. Pierre, 377 Mass. 650, 662-
663 (1979).
     10
        A distinct merger rule is available in felony-murder
cases. See Commonwealth v. Gunter, 427 Mass. 259, 275-276
(1998), S.C., 456 Mass. 1017 (2010), and S.C., 459 Mass. 480,
cert. denied, 132 S. Ct. 218 (2011); Commonwealth v. Berry, 420
Mass. 95, 113-114 (1995). The defendant was not convicted of
murder on a felony-murder theory, and "[w]e decline to
categorize this case as one of the 'rare circumstances where the
purposes of our lesser included offense jurisprudence are not
served by a strict application of the [elements-based]
doctrine." Commonwealth v. Torres, 468 Mass. 286, 290 n.5
(2014), quoting Commonwealth v. Porro, 458 Mass. 526, 532
(2010).
                                                                   18


a touching of the victim with a deadly weapon and that the

victim was sixty years of age or older, neither of which is

required to prove murder under any theory.   See G. L. c. 265

§ 15A (a); Commonwealth v. Campbell, 375 Mass. 308, 312 (1978).

"Neither crime is a lesser included offense of the other, and,

therefore, the Legislature has authorized punishment for both."

Vick, 454 Mass. at 433.    See Morey, 108 Mass. at 434-436.

Accordingly, the defendant's convictions and sentences were not

duplicative and did not result in a substantial likelihood of a

miscarriage of justice.

    4.   Sleeping juror.   The Commonwealth noticed that one of

the jurors appeared to be sleeping during presentation of the

video recording of the defendant's police interview, and the

judge noticed that this same juror appeared to be sleeping

during a portion of the jury charge.   The judge suggested

potential remedies at sidebar prior to the jury's deliberation,

and the defendant's trial counsel, deferring to the judge,

requested that the juror be made an alternate.   The judge

instructed the clerk to do so.   On appeal, the defendant argues

that this decision violated the statute concerning alternate

jurors, which provides that "the court shall direct the clerk to

place the names of all of the available jurors except the

foreperson into a box . . . and to select at random the names of

the appropriate number of jurors necessary to reduce the jury to
                                                                    19


the proper number of members required for deliberation in the

particular case."   G. L. c. 234A, § 68.

     This argument is unavailing.     While the nonrandom selection

of the juror as an alternate was irregular, the applicable

statute specifically states that such an irregularity "shall not

be sufficient . . . to set aside a verdict . . . unless the

objecting party has been specially injured or prejudiced

thereby."   G. L. c. 234A, § 74.    While it may have been better

practice for the judge to conduct a hearing to determine

definitively whether the juror had been asleep and to what

extent the juror was no longer capable of deliberating, see

Commonwealth v. McGhee, 470 Mass. 638, 643-646 (2015),11 the


     11
       On the second day of evidence, the Commonwealth notified
the judge that the juror in question had closed his eyes "for a
matter of just [a] couple of seconds" while viewing the video
recording of the defendant's police interview. Defense counsel
agreed with the Commonwealth's assessment. At the close of the
trial, the judge told counsel that the same juror appeared to
have been sleeping during a part of his jury charge. He stated
that the juror had "the appearance that he was falling asleep"
during "some key portions," but noted that he "can't be in [the
juror's] head and make the absolute conclusion that [the juror]
was in fact sleeping, -- he could have had his eyes closed and
still listened." In Commonwealth v. McGhee, 470 Mass. 638, 644
(2015), we explained that "[i]f a judge reaches a preliminary
conclusion that information about a juror's inattention is
reliable, the judge must take further steps to determine the
appropriate intervention. Typically, the next step is to
conduct a voir dire of the potentially inattentive juror."
However, "not every complaint regarding juror attentiveness
requires a voir dire," Commonwealth v. Beneche, 458 Mass. 61, 78
(2010), and "[j]udges have substantial discretion in this area."
McGhee, supra at 644. Here, the judge had a reliable basis to
believe the juror had been asleep, and the lack of such a
                                                                   20


defendant did not object at trial, and there is no indication

that the designation of the sleeping juror as an alternate

amounted to a substantial likelihood of a miscarriage of

justice.   Conversely, "[i]t is obviously not in the interest of

justice to have a juror deliberate who has not heard the

evidence or parts of the judge's charge."   Commonwealth v.

Stokes, 440 Mass. 741, 751 (2004), S.C., 460 Mass. 311 (2011),

(proper for judge to dismiss "dozing" juror to prevent

participation in deliberations); United States v. Bradley, 173

F.3d 225, 230 (3d Cir.), cert. denied, 528 U.S. 963 (1999)

(judge "had a legitimate basis to dismiss [snoring juror] . . .

[and] had sufficient information to support the dismissal and so

did not have to voir dire her").

    The defendant argues that the judge's action effectively

discharged the sleeping juror.   We disagree, as an alternate

remains available to replace a deliberating juror should the

need arise.   Nevertheless, "[a] judicial observation that a

juror is asleep . . . requires prompt judicial intervention,"

and "[t]he judge has discretion regarding the nature of the

intervention" (citations and quotations omitted).   Commonwealth

v. Beneche, 458 Mass. 61, 78 (2010).   "The burden is on the


hearing is most problematic in cases in which a judge, despite
being alerted to a significant problem of jury attentiveness,
takes no action. See id. at 645-646; Commonwealth v. Braun, 74
Mass. App. Ct. 904, 905-906 (2009). Such was not the case here,
as the juror did not deliberate.
                                                                     21


defendant to show that the judge's decision in the matter was

'arbitrary or unreasonable.'"   Id., quoting Commonwealth v.

Brown, 364 Mass. 471, 476 (1973).   In the instant case, the

defendant has presented no evidence to meet this burden.        In

fact, he takes no position on whether the juror should have been

dismissed or permitted to deliberate.   He only takes issue with

the juror being given the label of "alternate."   We cannot say,

given that the judge and both parties observed that the juror

appeared to be asleep at two distinct and key portions of the

trial, that the judge's decision was "arbitrary or

unreasonable," see Brown, supra, or that he abused his

discretion in designating the juror as an alternate.      See

Beneche, supra.   Accordingly, where the judge had both

discretion in choosing the remedy best suited to address the

situation and ample grounds to justify action, designating the

sleeping juror as an alternate did not amount to a substantial

likelihood of a miscarriage of justice.

    5.   G. L. c. 278, § 33E.   We have reviewed the entire

record of the defendant's trial pursuant to G. L. c. 278, § 33E,

and we find no reason to exercise our authority to reduce the

jury's verdict of murder to a lesser degree of guilt or order a

new trial.

                                    Judgments affirmed.
