Com. v. Braun
Decision Date | 30 April 2009 |
Docket Number | No. 08-P-505.,08-P-505. |
Citation | 74 Mass. App. Ct. 904,905 N.E.2d 124 |
Parties | COMMONWEALTH v. Olivio C. BRAUN. |
Court | Appeals Court of Massachusetts |
A jury found the defendant guilty of two counts of distribution of cocaine. On appeal, the defendant's principal claim is that he was denied a fair trial because the trial judge failed to take appropriate steps to ascertain that a juror was sufficiently attentive during the trial. We agree that under the circumstances it was incumbent on the judge to conduct a voir dire of the juror. We reverse the defendant's convictions.
1. Background. Because the jury venire had been exhausted, the judge, the prosecutor, and defense counsel agreed that only six jurors would be seated, with no alternate. See G.L. c. 234, § 26B. Trial commenced, and by the end of the first day, the Commonwealth had presented three witnesses: (1) Abby Brack, a professional photographer who photographed the undercover purchase; (2) State police Sergeant Mark Kiley, the lead officer in the undercover drug investigation; and (3) Trooper Francis Walls, who conducted a measurement for purposes of a school zone complaint.
After the jury were dismissed for the day with instructions from the judge, defense counsel voiced concern to the judge that the juror in seat number 2 had "slept through most, if not all, of the testimony, and certainly some of the Court's instructions."1
The judge responded:
Trial resumed the next day, and upon conclusion, the jury found the defendant guilty.
2. Discussion. Commonwealth v. Keaton, 36 Mass.App.Ct. 81, 87, 628 N.E.2d 1286 (1994). "Both the Commonwealth and the defendant are entitled to a sober, conscious jury." Commonwealth v. Rock, 429 Mass. 609, 614, 710 N.E.2d 595 (1999). To effectuate this fundamental right it is incumbent on the trial judge to insure that all the jurors hear the evidence, the arguments, and the judge's legal instructions. See Commonwealth v. Keaton, supra.
We do not expect a trial judge to be omniscient, but when the judge is alerted to a significant problem of juror attentiveness, he is required to address the problem. There is no simple formula governing when a judge must inquire and what the judge must do. The circumstances that confront trial judges on a daily basis are varied and unique. We also recognize that "[m]editation may be mistaken for somnolence." Commonwealth v. Keaton, supra. A judge has considerable discretion in addressing such a problem. See G.L. c. 234A, § 39 ( ).
In this case, we conclude that the judge abused his discretion by failing to conduct a voir dire where there was a very real basis for concluding that the juror was sleeping during testimony and the judge's instructions, thereby calling into question that juror's ability to fulfil her oath to try the issues according to the evidence. Contemporaneous observations from three separate sources—a court...
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