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Appeals Court of Massachusetts.



Decided: April 29, 2021

By the Court (Blake, Hanlon & Shin, JJ.1)


Following a jury trial, the defendant, Alex D. Jean, was convicted of operating a motor vehicle while under the influence of alcohol (OUI).2 On appeal, he contends that the judge erred by failing to conduct a voir dire of an allegedly sleeping juror, and by allowing inadmissible evidence at the subsequent offense trial. We affirm.

Background. At approximately 1:30 a.m. on January 8, 2019, Brockton Police Officers James Parker and Daniel MacIntosh were approached by a person who reported that he had just seen his recently stolen car on Main Street. Upon locating the stolen car in a parking lot, the officers activated their cruiser's lights and sirens and parked behind the car. The driver, later identified as the defendant, moved the car in an attempt to leave but was blocked by the cruiser.

When the officers approached the car, they asked the driver to turn off the ignition. When the driver did not do so, Officer MacIntosh reached inside the car and turned it off. The officers observed a large, open can of Natural Light beer and a half-full bottle of Mike's Hard Lemonade inside the car.

The officers asked the defendant to get out of the car, but he did not move or acknowledge the officers. Officer MacIntosh then helped him out of the car at which time the defendant was searched and handcuffed. The defendant was informed that he was under arrest because he was in a car that had been reported stolen. The officers observed that the defendant was unsteady on his feet, his eyes were glassy and bloodshot, his speech was slurred, and his breath smelled of alcohol. As the officers brought him to the cruiser, the defendant leaned toward Officer Parker, who supported the defendant with his arm. When the officers opened the door to the cruiser, the defendant struggled with the officers and tried to pull away. He was eventually transported to the police station.

The OUI trial. After the first witness testified, the prosecutor -- at the suggestion of the court clerk -- told the judge about a juror whom they both noticed falling asleep. According to the clerk, the juror was asleep for “three or four minutes.” The prosecutor told the judge that the juror was “nodding off a little bit.” The judge stated that he did not notice the juror sleeping and asked the prosecutor and the defense attorney if either of them wanted him to question the juror; both said they did not.

After the judge gave his final instructions to the jury, the judge called the attorneys to the sidebar to see whether they were satisfied with the instructions. The court clerk reported that the same juror was sleeping again. The clerk said the juror was “out like a light from 3:33 to 3:36.” The clerk continued that the juror was in and out from 3:36 to 3:39 and then “out for about two minutes from 3:41 to 3:43.” The judge discussed the issue with the parties and again asked counsel if they wanted him to conduct a voir dire; both declined. He also suggested utilizing the juror as the alternate. After some discussion, both counsel reported that they were satisfied.

Discussion. a. Sleeping juror. The defendant first claims that the judge erred in failing to conduct a voir dire of the allegedly sleeping juror. “A fundamental right enjoyed by all citizens is the right to trial before an impartial jury․ Inherent in that right is the requirement that an impartial juror must also be attentive.” Commonwealth v. Dyous, 79 Mass. App. Ct. 508, 513 (2011). Accordingly, where a judge observes a sleeping juror, or where a judge becomes aware of reliable information indicating that a juror is asleep,3 the judge is required to act promptly “to protect the rights of the defendant and the rights of the public.” Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). The judge's obligation to intervene is only triggered if the judge first determines that the information is reliable. If the information is not reliable, the judge has no obligation to act on it. See Commonwealth v. Villalobos, 478 Mass. 1007, 1007 (2017).

Here, both reports were made by the officers of the court. Although the judge did not make a specific finding, it is reasonable to infer that the judge considered the reports to be reliable, and neither party claims otherwise. In so finding, the judge must then “take further steps to determine the appropriate intervention” typically through a “voir dire of the potentially inattentive juror” (quotations and citations omitted). Villalobos, 478 Mass. at 1008. However, “[t]his is not to say that a voir dire is always necessary; there may be circumstances where a judge received reliable information that a juror is sleeping and properly exercises his or her discretion to intervene without conducting a voir dire.” Id. at 1008 n.1.

Here, the judge immediately intervened. After each report, the judge discussed the situation with the attorneys. The discussions included the observations of the juror by the judge, the clerk, and the attorneys. After the first report, the prosecutor said that she did not think the juror “would have missed much.” The judge stated that he was “watching the jurors, [and] didn't see that.” The judge offered to conduct a voir dire of the jurors; both parties declined his invitation to do so, and the judge indicated his intention to “keep a closer eye” on the juror.

After the second report, the judge once again immediately intervened by discussing the report with the attorneys. The prosecutor said that she thought the juror was “nodding on and off” but noticed that the juror's eyes were open. Defense counsel stated that he “noticed that [the juror] might have been concentrating,” but that he really did not know. The judge again offered to conduct a voir dire of the jurors, and again, both parties declined. Having previously been made aware of the concerns about the juror, and the second report coming immediately after the judge's final instructions to the jury, the judge was in the best position to assess the situation. Additionally, after the first report, the judge indicated that he would keep a closer eye on the juror. And, following the second report, the judge raised the possibility of having the juror serve as the alternate juror. Although the judge made suggestions as to how to handle the situation, ultimately, both attorneys told the judge that they were satisfied.

The judge took the “further steps” that Villalobos requires. He discussed the reports, elicited the attorneys' observations, shared his own observations, twice offered to conduct a voir dire, and offered to name the juror as an alternate. Given that “[j]udges have substantial discretion in this area” and that “[t]he burden is on the defendant to show that the judge's response to information about a sleeping juror was ‘arbitrary or unreasonable,’ ” Commonwealth v. McGhee, 470 Mass. 638, 644 (2015), quoting Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), the question becomes: how does the rejection of the judge's proposed remedies, particularly by defense counsel, impact our analysis? Put another way, where he rejected the judge's proposed remedies, did the defendant fail to meet his burden of showing that the judge's actions were arbitrary or unreasonable? See id.

With the benefit of hindsight, the defendant contends on appeal that the judge should have conducted a voir dire, over his objections. But not every reliable complaint requires a voir dire, and a judge who takes no action in response to such a complaint is not necessarily acting arbitrarily or unreasonably. See Villalobos, 478 Mass. at 1008 n.1. Compare Commonwealth v. Bois, 476 Mass. 15, 27-28 (2016) (no error where judge took no further action in response to reports of sleeping juror at defense counsel's request). This is particularly true where, as here, the judge proposed various remedies, including twice offering a voir dire, but took no further action at the parties' request.

Whether considered an invited error 4 or a strategic decision on the part of defense counsel, we conclude that the defendant failed to meet his burden.

b. Evidence at the subsequent offense trial. The defendant claims the judge erred in admitting the Registry of Motor Vehicles photograph and driving history because the copy was not certified and attested. This claim is belied by the record as all three pages of the exhibit state that “[t]he information is a true representation of the information contained [ ] Registry of Motor Vehicle records,” and, the registrar's name is printed on each of the three pages. And, an attestation may be accomplished by the “act of signing ․ by print, by stamp, or by the hand of another” (quotation and citation omitted). Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 (2010). Furthermore, at trial, the defendant objected to these documents only on the basis that the documents were prepared after his arrest; on appeal, he now contends that the documents were not properly certified. “Where the defendant advanced precise grounds at trial in support of his objection, he may not rely on a different ground in his appeal.” Commonwealth v. Sherman, 481 Mass. 464, 478 (2019), quoting Commonwealth v. Carlson, 448 Mass. 501, 506 (2007). There was no error.

The defendant next contends that the judge erred in admitting uncertified docket sheets from the Taunton District Court. We note that the defendant did not object at trial when the prosecutor offered what she described as “a certified docket.” However, even if not certified, the admission of the Taunton docket sheets did not create a substantial risk of a miscarriage of justice because two certified, prior convictions from the Brockton District Court were sufficient to prove the fourth offense.5 See Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014) (when there is no objection, we review to determine whether error created substantial risk of miscarriage of justice).6

Finally, the defendant argues that the judge erred in admitting Officer Parker's testimony in the subsequent offense trial. We disagree. It is true that the judge could not consider evidence presented in the earlier OUI trial in the subsequent offense trial to prove the defendant's identity. See Commonwealth v. Koney, 421 Mass. 295, 302 (1995). However, to meet its burden of proof in the subsequent offense trial, the Commonwealth had to call a witness to identify the defendant. It could not simply rely on the officer's testimony in the first trial. This is precisely what occurred. There was no error.

Judgment affirmed.


2.   The defendant was found not guilty of use of a motor vehicle without authority. A judge convicted the defendant at a jury-waived trial of the fourth-offense portion of the OUI charge.

3.   A judge's obligation to act on a reliable report of a sleeping juror does not depend on the judge's own observation of the juror's inattention. See Commonwealth v. Villalobos, 478 Mass. 1007, 1008 (2017) (“[T]he receipt of reliable information from any source, not just the judge's own observation, that a juror is sleeping requires prompt judicial intervention”).

4.   See, e.g., Commonwealth v. Leary, 92 Mass. App. Ct. 332, 342 (2017) (“[A]n error in the giving of ․ a jury instruction, if occasioned by the defendant's own request, is regarded as an invited error, and is reviewable only to the extent necessary to prevent a substantial risk of a miscarriage of justice”); Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 142 (2008), quoting Commonwealth v. Grant, 49 Mass. App. Ct. 169, 171 (2000) (“Where the error was invited by the defendant, our review is limited to whether a substantial risk of a miscarriage of justice occurred”). See also E.B. Cypher, Criminal Practice and Procedure § 34:10 (4th ed. 2014).

5.   The defendant was charged with OUI, second offense with an offense date of May 17, 2015. Subsequently, he was also charged with OUI, second offense with an offense date of April 3, 2016. The defendant pleaded guilty to both charges on September 18, 2017. Based on this timeline, the 2015 case cannot be the underlying OUI for the 2016 case, and the 2016 case cannot be the underlying OUI for the 2015 case. As a result, a separate and distinct OUI conviction served as the underlying offense in both the 2015 and 2016 OUI, second offense cases. Thus, the Commonwealth presented evidence of three prior OUI convictions.

6.   For the same reasons, there was no substantial risk of a miscarriage of justice in the admission of the court activity record information.

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