COMMONWEALTH v. HALL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In June 2017, a Superior Court jury convicted the defendant of assault and battery, assault and battery on a household or family member, and two counts of violating an abuse prevention order. The defendant was acquitted of stalking, an additional count of assault and battery on a household or family member, strangulation or suffocation, another count of violating an abuse prevention order, and two counts of threatening to kill the victim, his former girlfriend. After closing arguments had taken place, and before the judge gave his final instructions on the law, the jury stepped out for a break and the judge advised trial counsel, “I was trying to assess follow [sic] all the jurors are alert and awake. And you [defense counsel] are closer than I am. I was trying to observe juror [fourteen]. Anyone have any concern about juror [fourteen]? I believe during the prosecution closing he was alert as far as I can tell. But I was a little concerned during the defense closing. Do you have any concern?” Defense counsel stated, “I didn't have. I saw he had his head down, but I don't think he was sleeping.” The judge responded that trial would continue in the normal course “if you don't have a concern.” Hearing none, the trial proceeded.

The defendant's sole contention on appeal is that the judge was required to conduct a voir dire of juror fourteen and that his failure to do so is structural error. We disagree and affirm.

Discussion. A judge who is presented with “information suggesting that a juror was asleep or otherwise inattentive ․ must first determine whether that information is ‘reliable.’ ” Commonwealth v. McGhee, 470 Mass. 638, 644 (2015). Only if the judge reaches a preliminary conclusion that the information is reliable are they required to “take further steps to determine the appropriate intervention.” Id. “[N]ot every complaint regarding juror attentiveness requires a voir dire,” id., quoting Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), “and a judge has substantial discretion in this regard.” Commonwealth v. Alleyne, 474 Mass. 771, 778 (2016). We will find an abuse of discretion only where we conclude that “the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

Here, the judge “was a little concerned” about juror fourteen's attention level during defense counsel's closing argument, so he inquired of counsel to determine if that concern was substantiated. Defense counsel did not think it was. “In light of this, there was no error in the judge's decision ․ that no further action was required.” Commonwealth v. Bois, 476 Mass. 15, 28 (2016). See Alleyne, 474 Mass. at 778 (no voir dire required where “judge has only tentative information that juror may be sleeping”). Where juror fourteen deliberated and the jury acquitted the defendant of several serious charges, we are not persuaded that any potential inattentiveness during defense counsel's closing argument “distorte[d] the lens through which the jury properly consider[ed] the evidence,” as the defendant claims.

Judgments affirmed.