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SJC-11716

                   COMMONWEALTH   vs.   CRAIG McGHEE.



      Worcester.      December 1, 2014. - February 13, 2015.

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


Confining for Purpose of Stealing. Jury and Jurors.       Practice,
     Criminal, Jury and jurors, Conduct of juror.



     Indictments found and returned in the Superior Court
Department on August 20, 2010.

    The cases were tried before Richard T. Tucker, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Elizabeth Dembitzer for the defendant.
     Brett F. Dillon, Assistant District Attorney (Donna-Marie
Haran, Assistant District Attorney, with him) for the
Commonwealth.


    LENK, J.   The defendant appeals from his convictions on two

counts of "confin[ing] . . . or put[ting] any person in fear,

for the purpose of stealing from a building, bank, safe, vault

or other depository of money."     G. L. c. 265, § 21.   Evidence
                                                                   2


was presented at trial that the defendant and another man

intimidated victims into withdrawing funds from an automated

teller machine (ATM) and handing those funds over to the

defendant and the unidentified coventurer.   The defendant argues

that these facts do not support a finding that he had the

purpose required by G. L. c. 265, § 21.   We reject this

argument.   We agree, however, with the defendant's alternative

assertion that the trial judge erred by failing to inquire into

credible information that one of the jurors had slept through

important portions of the evidence.   Because this was a

structural error, we vacate the defendant's convictions and

remand for a new trial.

    1.   Background.   The facts supported by the evidence at

trial included the following.   In May, 2010, the defendant and

his coventurer accosted the victims, James Fletcher, Thomas

Brown, and John Wentworth, as they were walking toward their

vehicle in a Worcester parking lot.   The defendant and his

coventurer accused the victims, in a hostile and menacing

manner, of being "up to trouble" and selling drugs.    They then

ordered the victims to get into the vehicle.   The victims were

frightened, and they cooperated with the defendant and his

accomplice in the hope that they would not be hurt.

    Fletcher drove.    The defendant, who was aggressive and

intermittently yelling, directed Fletcher to an ATM.   The
                                                                     3


defendant told Fletcher to get out of the vehicle, led Fletcher

to the ATM, and ordered Fletcher to withdraw $150 from it.

Fletcher was scared; he withdrew $140 and gave it to the

defendant, stating that was all the money he had.    The defendant

said, "[T]hat's good enough."    The defendant and Fletcher

returned to the vehicle.    While they had been gone, the

coventurer had told Brown and Wentworth that the defendant would

shoot them if they did not cooperate.

       The coventurer then instructed Brown to get out of the

vehicle.   He grabbed Brown's arm and forced Brown toward the

ATM.    Brown withdrew twenty dollars and gave it to the

coventurer, who told Brown to "get back in there" and to give

him one hundred dollars.    Brown testified that he complied,

overdrawing his account in so doing.    Brown and the coventurer

returned to the vehicle.    The defendant again directed Fletcher

where to drive, and at some point the defendant and the

coventurer got out of the vehicle.

       Fletcher telephoned the Worcester police department that

night and reported the incident in person the next day.       The

three victims subsequently identified the defendant from a

photographic array.

       The defendant was tried on three counts of aggravated

kidnapping, G. L. c. 265, § 26; two counts of armed robbery,

G. L. c. 265, § 17; and two counts of "confining to commit a
                                                                    4


felony," G. L. c. 265, § 21.1   At the close of the Commonwealth's

case, the defendant moved for required findings of not guilty as

to all the charges.   The motion was denied.   The jury acquitted

the defendant on all counts of aggravated kidnapping and armed

robbery, and convicted him on the two counts of confining to

commit a felony.   The defendant appealed, and we granted his

application for direct appellate review.

     2.   G. L. c. 265, § 21.   At the prosecution's request, the

jury instructions concerning G. L. c. 265, § 21, were based on

the first part of that statute,2 which subjects to imprisonment

          "[w]hoever, with intent to commit larceny or any
     felony, confines, maims, injures or wounds, or attempts or
     threatens to kill, confine, maim, injure or wound, or puts
     any person in fear, for the purpose of stealing from a
     building, bank, safe, vault or other depository of money,
     bonds or other valuables . . . ."

The defendant argues that the evidence was insufficient to

support a finding that the final requirement of this statute,

namely, a "purpose of stealing from a building, bank, safe,

     1
       The defendant was tried separately on charges of assault
with intent to rob, G. L. c. 265, § 20, and assault and battery,
G. L. c. 265, § 13A (a). He also had been charged with unarmed
robbery, G. L. c. 265, § 19 (b), and possession of cocaine,
G. L. c. 94C, § 34, but the Commonwealth filed a nolle prosequi
on these charges.
     2
       The second part of G. L. c. 265, § 21, applies to whoever
"by intimidation, force or threats compels or attempts to compel
any person to disclose or surrender the means of opening any
building, bank, safe, vault or other depository of money, bonds,
or other valuables."
                                                                        5


vault or other depository of money, bonds or other valuables,"

was satisfied.    His argument is, in essence, that the phrase

"stealing from" a "bank, safe, vault, or other depository"

denotes, in this case, stealing property owned by the ATM.        The

evidence, according to the defendant, supported only a finding

that the defendant had a purpose of stealing property owned by

the victims, not the ATM.

    "We review a question of statutory interpretation de novo

. . . ."   Commonwealth v. Perella, 464 Mass. 274, 276 (2013),

quoting Commonwealth v. George W. Prescott Publ. Co., 463 Mass.

258, 264 n.9 (2012).     "[C]riminal statutes must be construed

strictly against the Commonwealth," but "[t]his does not mean

that we read unambiguous statutory language to favor defendants;

it means simply that . . . ambiguity must be resolved in favor

of a defendant" (citations omitted).     Commonwealth v. Ruiz, 426

Mass. 391, 394 (1998).

    "[S]tatutes must be read as [a] whole to produce internal

consistency."    Commonwealth v. Perella, 464 Mass. at 279-280,

citing Wheatley v. Massachusetts Insurers Insolvency Fund, 456

Mass. 594, 601 (2010), S.C., 465 Mass. 297 (2013).     See

Commonwealth v. Williamson, 462 Mass. 676, 681 (2012);

Commonwealth v. Galvin, 388 Mass. 326, 328 (1983).     Read as a

whole, the "purpose of stealing" required by G. L. c. 265, § 21,
                                                                      6


cannot reasonably be understood to be limited to stealing

property owned by a bank or an ATM.

    The purpose required by G. L. c. 265, § 21, encompasses not

only theft from a bank or an ATM, but also theft from a

"building," a "safe," or a "vault."     A "building," in this

context, includes a dwelling.    See Commonwealth v. Devlin, 335

Mass. 555, 566-567 (1957); Commonwealth v. Skalberg, 333 Mass.

255, 255-256 (1955); Commonwealth v. Jackson, 37 Mass. App. Ct.

940, 941 (1994), quoting Black's Law Dictionary 194–195 (6th ed.

1990) (defining "building" as "a structure or edifice inclosing

a space within its walls and usually . . . covered with a roof"

[omission in original]).    A person stealing "from" a building or

a safe necessarily would not be stealing the property of a

building or a safe.    It is thus unambiguous that the phrase

"stealing from" in G. L. c. 265, § 21, does not mean "stealing

the property of."     Rather, a purpose of stealing property "from"

a location, in this context, indicates that the property was

situated in that location when it was to be stolen.     General

Laws c. 265, § 21, thus admits of no ambiguity that need be

resolved in the defendant's favor.

    The defendant argues further, however, that his purpose,

according to the evidence, also was not to steal property

situated at the ATM.    According to the defendant, the evidence

showed that he had no intention of taking any money until after
                                                                   7


it had been extracted from the ATM; by that time, the defendant

argues, the money was to be located on the victims' persons, not

at any of the locations enumerated in G. L. c. 265, § 21.

     Several of the circuit courts of the United States Court of

Appeals have reached conflicting conclusions when presented with

analogous arguments under 18 U.S.C. § 2113(a) (2012), the

Federal offense of bank robbery.3   Compare United States v.

McCarter, 406 F.3d 460, 463 (7th Cir. 2005), overruled on other

grounds, United States v. Parker, 508 F.3d 434 (7th Cir. 2007),

with United States v. Burton, 425 F.3d 1008, 1010-1012 (5th Cir.

2005).   We share the view, articulated by the United States

Court of Appeals for the Seventh Circuit, that "[i]f the

depositor is robbed of the money he has just withdrawn after he

leaves the bank, that is not a [robbery from the bank].     But

if . . . the robber forces the bank's customer to withdraw the

money, the customer becomes the unwilling agent of the

robber . . . ."   United States v. McCarter, supra, citing United

States v. Van, 814 F.2d 1004, 1006–1008 (5th Cir. 1987), and

Embrey v. Hershberger, 131 F.3d 739 (8th Cir. 1997) (en banc),

     3
       The pertinent part of 18 U.S.C. § 2113(a) (2012) applies
to "[w]hoever, by force and violence, or by intimidation, takes,
or attempts to take, from the person or presence of another, or
obtains or attempts to obtain by extortion any property or money
or any other thing of value belonging to, or in the care,
custody, control, management, or possession of, any bank, credit
union, or any savings and loan association . . . ."
                                                                  8


cert. denied, 525 U.S. 828 (1998).   See United States v. Durham,

645 F.3d 883, 893 (7th Cir. 2011), cert. denied, 132 S.

Ct. 1537, 132 S. Ct. 1538 (2012); United States v. Smith, 670 F.

Supp. 2d 1316, 1321 (M.D. Fla. 2009), aff'd, 385 F. App'x 977

(11th Cir. 2010).

    In essence, the evidence indicated that the defendant's

purpose was to steal money that was located in the ATM.   The

fact that he planned to do so by forcing Fletcher to take the

money out for him does not negate the existence of the purpose

required by G. L. c. 265, § 21, just as this purpose would not

have been undermined if the defendant had planned to have a

confederate remove the money from the ATM.

    3.   Sleeping juror.   On the first day of trial, testimony

was taken from two of the three victims, Fletcher and Brown.

The next morning, juror no. 6 (reporting juror) told a court

officer that there had been an issue with juror no. 7

(identified juror) on the previous day.   The reporting juror was

brought before the judge and the parties, and she provided the

following account:

         "My concern was [that] through most of the morning
    proceedings I heard a lot of snoring going on; and I looked
    at the person, and the person wasn't paying any attention
    to the testimony going on. After lunch when we came in,
    the snoring continued extremely loudly, to the point where
    it was interrupting me listening. I kind of went like this
    [indicating] to the person next to me to show the person --
    'Look at this person,' and they were sound asleep through
    most of the afternoon trial."
                                                                     9



    Both the prosecutor and defense counsel stated that they

had not noticed that a juror had been sleeping; but they both

noted that they had not been focused on the jury.    The reporting

juror repeated that the woman next to her also had noticed the

identified juror sleeping.   The judge pointed out that "[s]ome

people, when they concentrate, they close their eyes."    The

reporting juror responded:

         "I agree with that, and that's why I questioned it for
    a while. But when the snoring came; and there was one
    other thing that came after that. It was -- you know when
    you wake up after a nap, the head nod, the bad breath.
    That's what really hit me, was 'Wow, he's really sleeping
    there.'"

    After hearing from the reporting juror, the judge said,

"Maybe I should examine him," referring to the identified juror.

The judge then explained, however, "I have questioned jurors

before, if I've observed them [sleeping].    I haven't; so I'm

kind of hesitant."   The prosecutor said, "I think her

description is fairly clear as to snoring.    I think it may be

something we want to ask."   Defense counsel said, "I would ask

that you inquire."

    After hearing from the parties, the judge said, "Well, I

would rather observe this individual now, and see what happens.

If he looks like he's not paying attention, we can take steps

right now."   Defense counsel asked the defendant, who was
                                                                  10


present at this discussion, "Are you okay with that . . . ?" to

which the defendant responded, "I'm good."

    At the end of the trial, the prosecutor stated that he had

observed the identified juror "throughout the course of the

trial, and he appeared to be awake and paying attention, taking

notes."    The judge remarked that he had tried to watch the

identified juror but had not been able to because of the juror's

position in the jury box.    The judge added for the record,

"[B]ecause of basically my failing to observe any sleepiness

during the evidence, we have done nothing with him in that

regard."

    The defendant argues that the judge's failure to inquire

into the identified juror's ability to deliberate and decide the

case on the evidence was a structural error that necessitates a

new trial.   We agree.

    Defendants, as well as the public, have "a right to

decisions made by alert and attentive jurors."   Commonwealth v.

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

75 Mass. App. Ct. 175, 181 (2009).   Accordingly, "[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. Beneche, supra, quoting

Commonwealth v. Dancy, supra.
                                                                  11


    It is true that "not every complaint regarding juror

attentiveness requires a voir dire."   Commonwealth v. Beneche,

458 Mass. at 78.   See Commonwealth v. Braun, 74 Mass. App. Ct.

904, 905 (2009).   Rather, if 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."   See Commonwealth v. Beneche,

supra, quoting Commonwealth v. Dancy, 75 Mass. App. Ct. at 181.

In making this determination, the judge must consider the nature

and source of the information presented, as well as any relevant

facts that the judge has observed from the bench.   See

Commonwealth v. Morales, 453 Mass. 40, 47 (2009), citing

Commonwealth v. Rzepphiewski, 431 Mass. 48, 54 (2000), and

Commonwealth v. Keaton, 36 Mass. App. Ct. 81, 86–88 (1994).

    If 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, 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."   See Commonwealth v. Dancy, 75 Mass. App. Ct. at 181.

See also Commonwealth v. Wood, 469 Mass. 266, 281 (2014);

Commonwealth v. Ray, 467 Mass. 115, 139 (2014); Commonwealth v.
                                                                    12


Braun, 74 Mass. App. Ct. at 905.    Judges have substantial

discretion in this area, however.     See Commonwealth v. Beneche,

458 Mass. at 78, quoting Commonwealth v. Dancy, 75 Mass. App.

Ct. at 181.

    The burden is on the defendant to show that the judge's

response to information about a sleeping juror was "arbitrary or

unreasonable."   See Commonwealth v. Beneche, 458 Mass. at 78,

quoting Commonwealth v. Brown, 364 Mass. 471, 476 (1973).     See

also Commonwealth v. Ray, 467 Mass. at 138-139.    The judge's

decision can best be assessed if the judge makes a record of his

or her findings, initially as to the reliability of the

information presented, and subsequently -- if the judge finds

the information reliable -- as to whether the juror in question

was indeed asleep or inattentive, and what portions of the

evidence the juror may have missed.     Cf. Commonwealth v. Dancy,

75 Mass. App. Ct. at 182 (where record did not reveal details of

judge's observations concerning sleeping juror, record was to be

developed by way of motion for new trial).

    In the current case, the judge declined to conduct a voir

dire of the identified juror, or to take any other steps to

determine if that juror was fit to deliberate.    So far as the

record reveals, the information relayed by the reporting juror

showed reliably that the identified juror had slept through

important portions of the trial.    The reporting juror stated
                                                                   13


that the identified juror had been snoring loudly during the

portion of the trial at which two of the three victims

testified, and had later nodded his head as if awakening; a

third juror reportedly had confirmed the reporting juror's

observations.    There was no apparent cause to doubt the

reliability of this account.4   The judge's reason for taking no

further action, except to "observe [the identified juror] now,

and see what happens,"5 was essentially that he had not himself

seen the juror sleeping.    But other reliable information besides

a judge's observations also "requires prompt judicial

intervention."   Commonwealth v. Beneche, 458 Mass. at 78,

quoting Commonwealth v. Dancy, 75 Mass. App. Ct. at 181.     See

Commonwealth v. Gonzalez, 86 Mass. App. Ct. 253, 255 (2014),



     4
       On appeal, the Commonwealth suggests that the reliability
of the account offered by juror no. 6 (reporting juror) is
diminished by the fact that she spoke of juror no. 7 (identified
juror) sleeping through the "morning proceedings," when in fact
the jury was not sworn in until 12:21 P.M. In context, however,
it is clear that the reporting juror referred to the session
that had preceded the jury's lunch break as the "morning
proceedings," and to the session that had followed the lunch
break as the "afternoon trial."
     5
       The decision to observe the identified juror further was
not an effective response to information that the juror had been
sleeping. If the identified juror missed important testimony on
the first day of the trial, it is unlikely that, even if he was
fully alert thereafter, he would "remain[] capable of fulfilling
his . . . obligation to render a verdict based on all of the
evidence." See Commonwealth v. Dancy, 75 Mass. App. Ct. 175,
181 (2009).
                                                                  14


quoting Commonwealth v. Braun, 74 Mass. App. Ct. at 905;

Commonwealth v. Dyous, 79 Mass. App. Ct. 508, 513 n.4 (2011).

     Because the judge conducted no further inquiry to determine

whether and, if so, when the identified juror was sleeping,

"there is serious doubt that the defendant received the fair

trial to which he is constitutionally entitled."   See

Commonwealth v. Braun, 74 Mass. App. Ct. at 906.   The serious

possibility that a juror was asleep for a significant portion of

the trial is "[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" (omission in original).

Commonwealth v. Dancy, 75 Mass. App. Ct. at 182, quoting

Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 906 (1999).

See Commonwealth v. Gonzalez, 86 Mass. App. Ct. at 255-256;

Commonwealth v. Dyous, 79 Mass. App. Ct. at 513-514;

Commonwealth v. Braun, 74 Mass. App. Ct. at 905-906.6




     6
       The Commonwealth notes that the defendant "expressly
agreed to the judge's remedy." As explained supra, the relevant
sequence of events ran as follows: the prosecutor suggested
that the issue of the sleeping juror "may be something we want
to ask"; defense counsel requested that the judge "inquire"; the
judge stated that he "would rather observe this individual now,
and see what happens"; and the defendant, when consulted by his
attorney, stated, "I'm good." In the circumstances, neither the
defendant nor his counsel conveyed an intention to waive any
right, as opposed to acquiescence in the judge's ruling.
                                                                 15


    4.   Conclusion.   The defendant's convictions are vacated

and set aside and the matter is remanded for a new trial.

                              So ordered.
