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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


     1
       The defendant was tried jointly with three codefendants,
one of whom pleaded guilty on the ninth day of trial. The
                                                                     2


of involuntary manslaughter of Jose Alicea and two counts of

assault and battery, one on Gregory Pimental2 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



appeals of the two remaining codefendants were severed from
Villalobos's appeal.
     2
       We spell the victim's name as it appears in the parties'
briefs.
     3
       The defendant originally was   charged with murder in the
second degree. The jury also found    him not guilty of assault
and battery by means of a dangerous   weapon on both Omar Castillo
and Gregory Pimental and not guilty   of assault and battery on
Japhet Mendoza.
                                                                    3


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 left the club and walked by some of the

defendant's group standing by the Porsche limousine.    Jose

Alicea yelled insults at the defendant's group, igniting a

violent altercation between the two groups.   There was testimony

that between six and twenty men from the defendant's group were

involved in the fight; none were seen to be "holding back" from

the initial fray with Alicea, Castillo, and Pimental, nor did

anyone attempt to stop the fight in general, or the beating of

any particular individual.   However, one of the limousine

drivers, Kevin Fulcher, and a member of Club 33's security team,

Joseph Cirino, unsuccessfully attempted to break up the brawl.




    4
       The victims were Jose Alicea (who later died from severe
head trauma), Omar Castillo (who suffered a perforated eardrum
and contusion to the left eye), Gregory Pimental (who suffered
multiple abrasions and a cut on the back of his head), Japhet
Mendoza (who suffered a cut to the face and minor swelling), and
Andres Sheppard (who suffered only a minor injury to his right
hand).
                                                                   4


    At some point after the assault on Alicea, the group

pursued Pimental, got him down on the ground, and, together,

proceeded to kick and beat him.    Part of this assault on

Pimental was captured on Club 33's security cameras.

    When the police arrived, some of the defendant's group

fled, while others ran to each of the two limousines.     The

occupants of the Porsche limousine were identified and briefly

interviewed by the police, and then released.    After Cirino

informed the police detectives that he could identify the

individuals involved in the fight, the eighteen occupants of the

Cadillac limousine, including the defendant, were subjected to

an impromptu identification procedure.    Cirino identified the

defendant and three other men as the "more aggressive"

participants in the fight; the defendant and eleven others were

arrested at the scene.

    Discussion.   1.     Sufficiency of the evidence.   The

defendant first argues that the evidence was insufficient to

prove his participation as a joint venturer in the charged

offenses and, therefore, the judge erred in declining to allow

his motion for a required finding of not guilty at the close of

the Commonwealth's case.    The defendant contends that none of

the testifying witnesses specifically observed him participating

in the assaults; there was conflicting testimony as to whether

any member of the group that attacked the victims was "holding
                                                                      5


back" from the brawl; and there was no physical evidence

connecting the defendant to any of the assaults.

     "We review the denial of a motion for a required finding of

not guilty to determine 'whether the evidence viewed in the

light most favorable to the Commonwealth could have "satisfied a

rational trier of fact" of each element of the crimes charged

beyond a reasonable doubt.'"   Commonwealth v. Deane, 458 Mass.

43, 50 (2010), quoting from Commonwealth v. Garuti, 454 Mass.

48, 54 (2009) (citation omitted).   Under the theory of joint

venture, the Commonwealth was required to prove beyond a

reasonable doubt that the defendant "was present at the scene of

the [incident], with the knowledge that another intends to

commit a crime or with intent to commit the crime and by

agreement was willing and available to assist if necessary."

Deane, supra at 50.   "However, the Commonwealth is not required

to prove exactly how a joint venturer participated."   Ibid.

     Based on the testimony of the witnesses who observed the

brawl, and from the surveillance video recording that the jury

viewed, the jury reasonably could have concluded that the

defendant actively participated in the victims' beatings.5     That


     5
       Specifically, Cirino had identified the defendant at the
scene as having been involved in the brawl and as being among
the "more aggressive" of the participants; his identification
was corroborated by the surveillance video as well as by other
eye witnesses. Another witness, Tracy Contreras, identified the
defendant from the surveillance video as the person wearing a
                                                                    6


is, viewing the evidence in the light most favorable to the

Commonwealth, the jury could have found that the defendant "was

at least a participant [in the brawl], even if he was not the

sole perpetrator, and that he possessed the state of mind

required for guilt."   Commonwealth v. Semedo, 456 Mass. 1, 8

(2010), quoting from Commonwealth v. Dyer, 389 Mass. 677, 683

(1983).   As in Commonwealth v. Chhim, 447 Mass. 370, 380 (2006),

"[A] vicious beating of one man by several assailants creates an

inference of intent to do grievous bodily harm or, at least, to

do an act which would create a plain and strong likelihood of

death."

    "The jury 'may consider circumstantial evidence of guilt

together with inferences drawn therefrom that appear reasonable

and not overly remote.'"   Commonwealth v. Lao, 443 Mass. 770,

779 (2005), quoting from Commonwealth v. Andrews, 427 Mass. 434,

440 (1998).   "If, from the evidence, conflicting inferences are

possible, it is for the jury to determine where the truth lies,

for the weight and credibility of the evidence is wholly within



long sleeve black shirt with a light-colored square on his back
standing behind the Cadillac limousine. Witness Johanna Pena
specifically placed the defendant in the midst of the red and
black-attired group approaching the victims; very shortly
afterwards, she saw Alicea on the ground. She went to him and
he spoke to her briefly before losing consciousness. Cirino,
Brian Jacobs and Dennis Lavita (other bouncers at Club 33), and
Ceol Miguel Soto each testified that the entire group charged
the victims, with none holding back or acting as peacemaker.
                                                                            7


their province."     Lao, supra.   We are satisfied that there was

no error in the denial of the defendant's motion for a required

finding of not guilty.

    2.   Failure to conduct a voir dire.      The defendant next

argues that the convictions should be reversed because "the

judge's failure to conduct a voir dire of two sleeping jurors

was error."   On the eleventh day of trial, the prosecutor said

to the judge that one juror had fallen asleep "several times"

during the testimony.    The judge promised to "keep an eye on

her" and to take action if necessary.     None of the defense

counsel made any comment at all.     At the end of the court day,

the judge raised the issue again, seeking clarification about

which juror the prosecutor had been describing.      Once the

prosecutor described her more particularly, the judge stated

that he had watched the juror in question (and another) and

"they both appear to be alert and taking notes . . . .      But if

you see anything like that, bring it to my attention, and I'll

pay special attention."    The defendant's lawyer said nothing.         A

codefendant's lawyer stated that he had paid attention to the

juror and "she seemed to be alert throughout the afternoon."

The judge responded, "Yes.    She seems to be smiling. . . .       So

I'll keep watching and we'll see."

    The following day, the prosecutor spoke to the judge about

a different juror.    "Front row, third from the left.   He's got a
                                                                        8


newborn baby.    I mean, he was sound asleep during the cross-

examinations.    I don't know what you want me to do, Judge.     I'll

call the Court Officers [sic] attention to it."     The judge

asked, "[W]hat do you want me to do about it?"    The prosecutor

said, "I'm just raising the Court's attention to it."     The judge

responded, "I'll do my best if I notice it to take a stretch

break or something."    The prosecutor replied, "I think that both

sides deserve to have jurors that are able to stay awake," and

the judge stated, "Obviously, but I have to notice it."     The

prosecutor stated, "If they can't stay awake, then I want them

excused.    That's what I want."   The judge responded, "Okay.

That gentleman I have not noticed at any time prior to today

falling asleep.    I didn't notice it a half hour ago or hour

ago."   None of the three defense counsel said anything at all.

Thereafter, the court took a break so that one of the defendants

could go to the bathroom.

    At the end of the court day, the judge called counsel to

side bar, and said, "Okay.    I was paying close attention to the

juror."    The prosecutor responded, "Everybody was good this

afternoon, Judge, I agree.    I think it helps with the window

open, too."     The judge then said, "And if I do see something, I

will just take a stretch break."     Again, all three defense

counsel were silent.
                                                                      9


         "'A judicial observation that a juror is asleep, or a

judge's receipt of reliable information to that effect, requires

prompt judicial intervention to protect the rights of the

defendant and the rights of the public, which for intrinsic and

instrumental reasons also has a right to decisions made by alert

and attentive jurors.'     Commonwealth v. Dancy, 75 Mass. App. Ct.

175, 181 (2009).     The judge has 'discretion regarding the nature

of the intervention,' id., and not every complaint regarding

juror attentiveness requires a voir dire, see Commonwealth v.

Braun, 74 Mass. App. Ct. 904, 905 (2009).     The burden is on the

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

'arbitrary or unreasonable.'     Commonwealth v. Brown, 364 Mass.

471, 476 (1973)."     Commonwealth v. Beneche, 458 Mass. 61, 78

(2010).

     The Supreme Judicial Court addressed this issue in three

recent cases.6    See Commonwealth v. McGhee, 470 Mass. 638 (2015);

Commonwealth v. The Ngoc Tran, 471 Mass. 179 (2015);

Commonwealth v. Vaughn, 471 Mass. 398 (2015).7    In McGhee, a


     6
       Both parties in this appeal filed their briefs before the
opinions in those cases were released.
     7
       In The Ngoc Tran, 471 Mass. at 189, both the prosecutor
and the judge noticed that a juror appeared to be sleeping "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 argue[d] that this
decision violated the statute concerning alternate jurors, which
provides that 'the court shall direct the clerk to place the
                                                                  10


juror reported to the court on the second day of trial that one

of the jurors had been sleeping the day before during the

testimony of two of the three victims in the case.8   Neither the

prosecutor nor defense counsel had seen the juror sleeping and

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."'"



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 the proper
number of members required for deliberation in the particular
case.' G. L. c. 234A, § 68." The court ruled that the argument
was "unavailing. 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.
[at] 643-646 . . . , the 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" (footnote omitted). The Ngoc Tran,
supra at 189-190.
     8
       The juror in McGhee told the judge, "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." McGhee, 470 Mass. at 642.
                                                                    11


470 Mass. at 643.   Both the prosecutor and defense counsel asked

the judge to "inquire" of the juror.    Instead, the judge

determined that he 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 present at this discussion, 'Are you okay

with that . . . ?' [and] 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.'"   Ibid.

    On appeal, the defendant argued to the court 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 necessitate[d] a new trial."    Ibid.   The

court agreed, concluding that "[t]here was no apparent cause to

doubt the reliability of the account.    The judge's reason for

taking no further action, except to 'observe [the identified

juror] now, and see what happens,' was essentially that he had
                                                                    12


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."

(Footnotes omitted.)     McGhee, supra at 645.     In a footnote,

citing Dancy, supra, the McGhee court also observed that "[t]he

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.'"     McGhee, supra at 645 n.5.

    In Vaughn, 471 Mass. at 412, issued three months later,

"[d]efense counsel first reported during a bench conference that

he had observed a juror sleeping, including sleeping during the

judge's instructions.    He also offered that the prosecutor had

seen it as well.   Nothing in the record indicates the

prosecutor's observations of the juror or his agreement or

disagreement with defense counsel's observations.       Defense

counsel offered no further description of why he thought the

juror was sleeping beyond the excuse that he had not brought up

the issue earlier in light of the possibility he may have

observed a 'nervous reaction.' . . .     In his affidavit in
                                                                    13


support of the defendant's motion for a new trial, defense

counsel did not elaborate any further on his report at trial."9

     The Vaughn court concluded that "[t]he defendant has failed

to meet his burden.   Although it is true that a judge must take

action when confronted with evidence of a sleeping juror, the

nature of that action is within the judge's discretion. . . .

Beneche, 458 Mass. [at] 78 . . . .    The defendant must show that

the judge abused his discretion by making an arbitrary or

unreasonable decision.   Id."   Vaughn, 471 Mass. at 412.     The

court noted that "counsel did not request any further action at

the time of the initial report.   In response to defense

counsel's reports, the judge made his own observations of the

juror.   The judge did not observe the juror sleeping.   He

promised to continue his observations and to act should defense

counsel's concerns prove founded.    The next day, defense counsel

revisited the issue, offering no further description of the

asserted fact that the juror was sleeping and offering no new

evidence that the juror had fallen asleep since the initial


     9
       In Vaughn, the issue of the "sleeping juror" was raised in
the context of a motion for a new trial on the grounds of
ineffective assistance of counsel. 471 Mass. at 411. Before
applying the standard in Commonwealth v. Saferian, 366 Mass. 89,
96 (1974), the Vaughn court first considered whether the trial
judge's response to counsel's report of a sleeping juror
constituted an abuse of discretion. Id. at 412-413. The issue
in our case is presented in the defendant's direct appeal, and
we apply the latter standard.
                                                                    14


report.   He asked that the juror be removed.   The judge declined

to do so."   Ibid.   Compare Commonwealth v. Fritz, 472 Mass. 341,

353-354 (2015) (no abuse of discretion in declining to conduct

voir dire where "trial judge found that he had been watching the

jury and did not see any jurors sleeping").

    Reading these cases together, along with Dancy and Beneche,

it is clear that the issue is whether the defendant has met his

burden of proving that the judge abused his "substantial

discretion" by responding in an "arbitrary or unreasonable" way

to a complaint that the juror was sleeping.     McGhee, 470 Mass.

at 644.   In McGhee, the court ruled:   "[T]he judge must first

determine whether that information is 'reliable.'    See

Commonwealth v. Beneche, supra [at 78], 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."   McGhee, supra.    In addition, the

substance of the report that the juror was sleeping is also

significant.   As this court noted in Dancy, "If the sleeping is

observed at the outset or when the juror is beginning to 'nod

off,' it is likely that a break or a stretch will suffice."

Dancy, supra at 181.

    Finally, we consider whether the parties asked the judge to

take any action and what response the judge gave.    We recognize
                                                                    15


that "[t]he 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)."     McGhee, 470 Mass. at 645-646.

Nonetheless, counsels' responses during the trial, based upon

their personal observations and conclusions, are at least some

indication of the seriousness of the possibility that the juror

in question was in fact asleep for a significant portion of the

trial.    Cf. Commonwealth v. Miller, 457 Mass. 69, 80 (2010) (In

a prosecutor's closing argument, "while the statement should not

have been made, the defendant was not deprived of a fair trial.

. . .    Again, there was no objection by the defendant's trial

counsel, suggesting that the tone of the remark was not a call

to arms").

    On balance, we are persuaded that the defendant has failed

to meet his burden of showing that the judge abused his

substantial discretion.    Specifically, the facts here fall

closer to those in Vaughn than those in McGhee, although the

allegation was made initially by the prosecutor, rather than

defense counsel.    First, if the jurors in question did fall

asleep, it appears to have been short-lived, brought as it was
                                                                     16


to the immediate attention of the court by an alert prosecutor.

Second, this defendant's lawyer said nothing at all about the

issue; one codefendant's lawyer said only that one of the two

jurors had appeared alert to him.     Despite the judge's explicit

inquiry about what the prosecutor wanted him to do, no one

requested that the judge conduct a voir dire, or excuse either

juror -- or do anything other than monitor the situation.

Thereafter, the record is clear that the judge did monitor the

situation, as well as take at least one break, and offer to take

others.10    As in Beneche, 458 Mass. at 78-79, "[t]he judge

responded immediately to counsel's concerns, closely watched the

juror, and monitored the situation.     Given the tentativeness of

the information that the juror was sleeping, the judge's

decision was reasonable."

     3.     Closing argument.   The defendant also argues that the

prosecutor made several prejudicial misstatements of the

evidence during closing argument, improperly shifting the burden

of proof to the defendant.      Because the defendant did not object

to the closing argument at trial, we review for a substantial

risk of a miscarriage of justice.      Commonwealth v. Grandison,

433 Mass. 135, 142 (2001).



     10
       In addition, apparently, an open window may have helped
to keep the jurors alert during this very long trial.
                                                                    17


    The defendant claims that the prosecutor improperly argued

matters outside the scope of the evidence, claiming that the

defendant was part of "the entire group" that beat the victims,

when none of the testifying witnesses had observed the defendant

specifically hit, punch, or kick the victims.    On the contrary,

several eye witnesses identified the defendant as a member of

the red and black-attired group that together participated in

beating the victims, and an employee of the club, Cirino,

identified the defendant as one of the three "more aggressive"

persons in the group.    Video surveillance corroborated some of

this testimony.

    "A 'prosecutor is entitled to argue the evidence and fair

inferences to be drawn therefrom.'"    Commonwealth v. Deane, 458

Mass. at 55-56, quoting from Commmonwealth v. Paradise, 405

Mass. 141, 152 (1989).    Based on the testimony, it was a fair

inference that the defendant was an active participant in the

crimes charged, and the prosecutor was permitted to "marshal the

evidence and suggest inferences that the jury may draw from it."

Commonwealth v. Roy, 464 Mass. 818, 829 (2013) (quotation

omitted).    "Those inferences need only be reasonable and

possible."   Ibid.   Considering, as we must, the "context of the

whole argument, the evidence admitted at trial, and the judge's

instructions to the jury," Commonwealth v. Shanley, 455 Mass.

752, 773 (2010) (quotation omitted), we see no error and
                                                                     18


certainly no substantial risk of a miscarriage of justice.     See

Commonwealth v. Johnson, 461 Mass. 1, 3 (2011).

    4.     Motion for a new trial/ineffective assistance.    The

defendant finally argues that the judge erred in denying his

motion for a new trial based on ineffective assistance of

counsel.    The basis of his motion is that, during the hearing on

the motion to suppress, counsel failed to argue that, when the

defendant stated, "I just don't wanna talk about it because --,"

he was invoking his right to remain silent, yet the police

continued to question him.    The defendant contends that counsel

instead argued that the defendant did not receive the full

Miranda warnings.   It is clear, in the defendant's view, that

counsel did not listen to the audio tape of the defendant's

police interview, but, rather, relied on an incomplete

transcript in making his argument.   In fact, the complete

transcript showed that the officer had given the full warnings

required.

    The defendant's argument fails for several reasons.      First,

in November, 2009, counsel was given a copy of the audio

recording of the police interview as part of the Commonwealth's

discovery, and the full audio recording was played at the voir

dire hearing on the defendant's midtrial motion to suppress.       It

is clear that counsel had an opportunity to hear the recording
                                                                    19


in its entirety at least at the time of the hearing.11     After

hearing the recording, the judge concluded that the defendant

had been advised of his rights and that "the statements that he

made were made voluntarily.   The statements that he made were

essentially[,] from his perspective[,] exculpatory, which

reflect[ed] a mind that [was] aware of some self interest.     He

clearly heard and understood his rights.   The detective

explained them very clearly and made clear that he didn't have

to talk if he didn't want to."

     Second, at the hearing on the motion for new trial, the

judge found that the statement in question was "in the context

of not wanting to put his initials on the Miranda form.     That's

the way [the detective] understood it, it appears from the

transcript."12


     11
       The voir dire transcript also indicates that counsel did,
in fact, bring to the judge's attention the defendant's
statement at issue, albeit briefly. Counsel stated, "There was
a point in the interview where he says, 'I don't want to talk
about this,' . . . [a]nd that entreaty was completely ignored by
the police officer."

     12
       The transcript of the police interview with the defendant
included the following:

          Q.: "Can you -- See a pen right there? See where it
     says initials? Can you place your initials at the end of
     that line?"

          A.:    "Do I have to?"

          Q.:    "You don't have to do anything."
                                                                  20


    To succeed on a claim of ineffective assistance in pursuing

a motion to suppress, the defendant "must demonstrate that the

evidence would have been suppressed if properly challenged, and

that counsel's failure to pursue such a challenge created a

substantial [risk] of a miscarriage of justice."   Commonwealth




         A.:   "Mm-hmm.   Well, --"

         Q.: "If you prefer not to put your initials there,
    you don't have to put your initials there."

         A.: "No, I don't want to write it because it's -- I
    just don't wanna talk about it because --"

         Q.: "Okay. Well, I'11 read through and you don't
    have to do -- do anything. [The detective then read the
    defendant's Miranda rights, concluding,] Okay. With that
    in mind, I'd like to talk about what happened last night.
    You can talk to me if you want to, and you don't have to."

Thereafter, the detective explained that he wanted to tape the
interview.

         Q.: "I prefer, as do the courts and the judges, that
    everything get taped because then there's no -- no --"

         A.:   "Well, --"

         Q.:   "-- trickery involved --"

The defendant agreed, and a short conversation followed, with
the defendant denying being part of the fight.

         Q.:   "Now, are you saying that you weren't up in
    that?"

         A.:   "No, I wasn't."

The defendant then said that he wanted to speak with a lawyer
and the detective ended the interview immediately.
                                                                  21


v. Cavitt, 460 Mass. 617, 626 (2011).   "A motion for a new trial

will be allowed 'if it appears that justice may not have been

done.'"   Id. at 625, quoting from Mass.R.Crim.P. 30(b), as

appearing in 435 Mass. 1501 (2011).

    After a hearing on the defendant's motion to exclude the

challenged statement, the judge found, based on the audio

recording, that the defendant was given the full Miranda

warnings and that he "clearly heard and understood his rights."

Shortly after the challenged statement was made, the defendant

exercised his right to speak with an attorney, and the interview

ended immediately; in the judge's opinion, this was "reflective

of a mind that is aware of what is going on, understands his

rights, [and] is able to make voluntary decisions."

    "In reviewing a ruling on a motion to suppress evidence, we

accept the judge's subsidiary findings of fact absent clear

error.    The weight and credibility to be given oral testimony is

for the judge."   Commonwealth v. Murphy, 442 Mass. 485, 492

(2004).   Here, the judge's findings are supported by the

evidence and he correctly applied the law to the facts.

Counsel's failure to pursue at the hearing the challenge the

defendant now puts forth on appeal did not create a substantial

risk of a miscarriage of justice.   See Cavitt, 460 Mass. at 626.

In addition, based on the foregoing, counsel's behavior did not

fall "measurably below that which might be expected from an
                                                                 22


ordinary fallible lawyer."   Commonwealth v. Kolenovic, 471 Mass.

664, 673 (2015), quoting from Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).   We see no error in the denial of the

defendant's motion for a new trial, and discern no abuse of

discretion.   See Commonwealth v. Diaz, 75 Mass. App. Ct. 347,

350 (2009).

                                    Judgments affirmed.

                                    Order denying motion for
                                      new trial affirmed.
    RUBIN, J. (dissenting).    With respect to the reports of

sleeping jurors, this case is controlled in all material

respects by Commonwealth v. McGhee, 470 Mass. 638 (2015), under

which it must be reversed or, at the very least, remanded for

further proceedings.

    McGhee applied the rule that "a judge's receipt of reliable

information" to the effect that a juror is asleep "requires

prompt judicial intervention."     Id. at 644 (emphasis added),

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

in turn quoting from Commonwealth v. Dancy, 75 Mass. App. Ct.

175, 181 (2009).   In McGhee, the judge received information from

a juror that another juror had been asleep during testimony.

Rather than taking "any . . . steps to determine if [the] juror

was fit to deliberate," id. at 645, the judge decided simply to

observe the juror going forward.    The judge explained later that

"because of basically my failing to observe any sleepiness

during the evidence, we have done nothing with [the juror]" in

terms of addressing the report that he was asleep.     Id. at 643.

    The Supreme Judicial Court held that in the face of a

reliable account of a juror sleeping, "prompt judicial

intervention" was required, regardless whether the judge himself

had seen the juror sleeping.   The court held that "[b]ecause the

judge conducted no further inquiry to determine whether and, if
                                                                    2


so, when the identified juror was sleeping, 'there is a serious

doubt that the defendant received the fair trial to which he is

constitutionally entitled.'"   Id. at 645, quoting from

Commonwealth v. Braun, 74 Mass. App. Ct. 904, 906 (2009).    The

court held that even though the defendant had acquiesced in the

procedure utilized by the judge, "[t]he 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.'"   McGhee, supra at 645-646, quoting

from Commonwealth v. Dancy, supra at 182.   The court vacated the

convictions and remanded the case for a new trial.

    This case presents essentially the same fact pattern.     On

the eleventh day of trial, the prosecutor said to the judge that

one juror had fallen asleep several times during the testimony.

The judge said he would "keep an eye on her."   Later the judge

said that he had watched the juror in question as well as

another one and "they both appear[ed] to be alert and taking

notes."   The judge said he would "keep watching."   The next day

the prosecutor spoke to the judge about a different juror

stating that "he was sound asleep during the cross-

examinations."   The prosecutor said, "[B]oth sides deserve to

have jurors that are able to stay awake," which is correct.
                                                                       3


Just like the judge in McGhee, the judge said, "Obviously, but I

have to notice it."

    Assuming the prosecutor's reports were reliable, the

judge's failure to take any action with respect to the

prosecutor's reports of a sleeping juror amounts to precisely

the error that required a new trial in McGhee.     Indeed, the

misunderstanding of the judge, who of course did not have the

benefit of McGhee, which was decided during the pendency of this

appeal, that he was not to take action unless he personally

observed a juror sleeping was exactly the same mistake that led

to the Supreme Judicial Court's decision in McGhee itself.       See

McGhee, 470 Mass. at 645 ("The judge's reason for taking no

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

and see what happens,' 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" [quotation and citation omitted]).

    The majority apparently concludes that the Supreme Judicial

Court's unanimous opinion in Commonwealth v. Vaughn, 471 Mass.

398 (2015), amounted to a modification of the unanimous opinion

in McGhee issued just three months earlier.   The majority states

that Vaughn means that mere future observation of a juror by a

judge is an adequate response to reliable evidence of a juror

sleeping, and that the judge's decision simply to observe the
                                                                    4


juror going forward rather than taking any action to determine

whether the juror was asleep must be upheld unless it is an

abuse of discretion in the sense of an arbitrary or unreasonable

decision.

       This is a misreading of Vaughn.   In Vaughn, the Supreme

Judicial Court did not qualify its ruling in McGhee.     Rather,

Vaughn was a case about determining whether a report about a

sleeping juror is sufficiently reliable that the rule requiring

intervention is triggered.

       As the court explained in McGhee, "[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, 470 Mass. at

644.    In Vaughn, the report of a sleeping juror came from

defense counsel, who reported during a bench conference that he

had observed a juror sleeping.    As the court described in

Vaughn, "Defense counsel offered no further description of why

he thought the juror was sleeping beyond the excuse that he had

not brought up the issue earlier in light of the possibility he

may have observed a 'nervous reaction.'"    471 Mass. at 412.

       The Supreme Judicial Court understood the judge's actions

to mean that "the trial judge did not find defense counsel's

assertions reliable enough to warrant further action,

particularly where counsel said that the juror slept during the
                                                                      5


judge's instructions to the jury and the judge would necessarily

have been looking at the jury."    Ibid.   As the Supreme Judicial

Court explained, "Defense counsel's report gave no description

of the characteristics of the juror's alleged slumber beyond

likening it to a 'nervous reaction,' an empty illustration

explained by myriad possibilities.    More importantly, defense

counsel did not ask for a voir dire.    In fact, he initially

requested the judge do nothing at that time.      The judge was

entitled to rely on his own observations to reach the conclusion

that the report of a sleeping juror was not sufficiently

reliable to warrant further action when made only by defense

counsel without a request for a voir dire."       Id. at 412-413.

Because there was no error in finding the report insufficiently

reliable, there was no error in the failure to intervene.

       In this case it was the prosecutor rather than defense

counsel who raised the issue.    In McGhee, the Supreme Judicial

Court concluded that a report from another juror was

sufficiently reliable that no express finding with respect to

reliability was required.    The court concluded that there was

"no apparent cause to doubt the reliability of this account" and

therefore the judge was required to intervene.      470 Mass. at

645.

       The exact same thing could be said here.    I can understand

an argument, however, that the correct course in this case might
                                                                   6


be to remand the case for a finding by the trial judge

concerning the reliability of the prosecutor's report.   And in

order to ensure that justice is done, I could go along with such

a disposition of this case.   The court majority, however,

concludes that the judge's failure to intervene in the face of a

reliable report of a sleeping juror was within his discretion.

It therefore simply affirms the defendant's convictions.

Although I agree with all other portions of the majority

opinion, because the disposition of the sleeping-juror claim

appears to me to contravene clear Supreme Judicial Court

precedent, I respectfully dissent.
