Commonwealth v. Ralph R.

• Docket Number: SJC-13249
• Decision Date: 10 November 2022
• Parties: COMMONWEALTH v. RALPH R., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

490 Mass. 770

197 N.E.3d 403

COMMONWEALTH

v.RALPH R., a juvenile.¹

SJC-13249

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 7, 2022

Decided November 10, 2022

Lisa M. Lana, Committee for Public Counsel Services, for the juvenile.

Monica J. DeLateur, Assistant District Attorney, for the Commonwealth.

Chauncey B. Wood & Sara E. Silva, Boston, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

LOWY, J.

The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights guarantee a criminal defendant the right to a trial by a fair and impartial jury. The juvenile asserts that this right was twice undermined at his trial: first, when the judge failed to respond adequately to two jurors sleeping; and second, when the judge failed to conduct a preliminary inquiry into a preverdict report by the jury foreperson that "discriminating comments" were made during jury deliberations. We conclude that the judge did not abuse his discretion in addressing the sleeping juror issues. On the other hand, we conclude that, in light of the judge's statement that he did not know what the foreperson meant by her report, it was an abuse of the judge's discretion not to conduct a preliminary inquiry to determine whether the foreperson's statement amounted to a credible report of racial, ethnic, or other improper bias in the deliberation room. Because we cannot be certain that such bias did not materially influence the verdicts, the juvenile's conviction as a youthful offender and his adjudications of delinquency must be vacated and set aside.²

1. Background. The juvenile was charged by delinquency complaint with several firearm-related offenses, and subsequently he was indicted as a youthful offender for two of those offenses.³ At the juvenile's trial, a number of jury issues arose, three of which are relevant to this appeal.

First, during the Commonwealth's direct examination of its first witness, the judge called the prosecutor, defense counsel, and juror no. 8 to sidebar because he had observed that juror sleeping.

At sidebar, the judge asked the juror whether she was sleeping, and if she had missed the entirety of the witness's testimony. The juror confirmed that she had fallen asleep, stating that she had "asthma

and bronchitis." She stated that her "eyes just went," but she denied sleeping through all of the witness's testimony. The judge emphasized the importance of the juror's attention to the evidence, and ultimately allowed her to return to her seat on the jury. The judge informed the parties that it would "be a live, fluid issue" that he would continue to monitor.

That afternoon, after the jury had retired for the day, the judge informed counsel that he was satisfied with juror no. 8's attentiveness. The judge inquired whether either attorney wished to be heard on the issue. The prosecutor stated that he had not "noticed anything of note since the initial sidebar," and defense counsel agreed, commenting: "She was awake the rest of the time." The judge then clarified for the record that juror no. 8 was "right in [his] line of sight" and was sleeping for "really a fleeting ... moment." The judge further stated that he had "been watching [juror no. 8] very closely throughout just to be sure," as well as another juror who had earlier claimed she was not feeling well, and discerned no additional problems. He continued: "If counsel has anything different than that, please let me know, otherwise, we'll just continue as we are with our [fourteen] jurors." Neither voiced any concerns about juror no. 8 or any other juror.

The second issue arose the following morning and concerned a different juror. Before the jury were brought into the court room, the judge met with counsel to discuss unrelated issues concerning two other jurors.⁴ During this discussion, defense counsel remarked, "If we had those two jurors excused, then we have two other jurors sitting there intermittently falling asleep because the gentleman with the white hair at times he'll just be asleep; yesterday, he was snoring. I -- it -- it's going to be tricky excusing jurors." This was the first mention of anyone other than juror no. 8 sleeping. In that moment, the prosecutor interjected that he had not observed the "gentleman with the white hair having issues." The "gentleman with the white hair" presumably was juror no. 3.⁵ The judge and defense counsel then had the following exchange:

THE JUDGE : "Well, I'll say this, I've -- I was eyeballing [the] juror in seat 8 the whole -- one eye did not leave her.... And after we had our discussion at sidebar if that continued. Then, at one point, I noticed the gentleman, whether it's three or four I'm not sure, and this is the point when the first witness you had -- you put up the video -- you had put up the video, and I looked down and his eyes were closed and his head was down, and I actually made sort of an announcement to the jury, ‘Can everyone see the video?’ something like that, and [thirteen] of the [fourteen] nodded or said ‘yes.’ He didn't. And then within seconds of that, though, he was then looking at the screen. So, in my mind, was this someone that was just kind of putting their head down and kind of concentrating and then looking up? So that's what I observed. Now, if you think that's worth inquiry?"

DEFENSE COUNSEL : "Yeah, [(indiscernible)] but I think that happened twice and, I mean, I --"⁶

THE JUDGE : "I didn't see the other. I didn't see the other one. Just as an offer of proof, what did you see?"

DEFENSE COUNSEL : "Same thing that you just described. I --"

THE JUDGE : "No, but you said, you heard -- you said it's --"

DEFENSE COUNSEL : "I don't remember exactly but I do remember you were trying to wake him up by -- I -- because I assume that's what you were trying to do."

THE JUDGE : "That obvious, huh?"

Thereafter, the judge instructed the court officer to alert him if she noticed any jurors sleeping, and the discussion reverted to unrelated matters. The trial proceeded with no further discussion of sleeping jurors.

The third juror issue occurred during deliberations, which began on a Thursday afternoon. On Friday morning, the jury sent the judge a note that they "ha[d] not reached a unanimous decision." As the judge instructed the jury to continue deliberating, the jury foreperson raised her hand to speak to the judge. At sidebar, with counsel present, the foreperson told the judge she had "concerns" that any decision would be "based on individual[s] who are using personal issues, personal matters into this case -- dominating the conversations and just not trying to put -- look at the case with an open mind"; she expressed doubt that the jury were going to reach a unanimous decision. The judge instructed the foreperson to continue deliberating, and he noted privately to counsel that a Tuey-Rodriquez ⁷ instruction might be warranted. Shortly thereafter, the judge called the jury back into the court room to adjourn for the day, with instructions to return on Monday. The foreperson again requested to speak with the judge.

Prior to speaking to the foreperson, the judge consulted with counsel, noting that he wanted to avoid discussing deliberations, but he recalled that the foreperson may have had a work conflict preventing her from serving after Monday. At sidebar, the judge prefaced his conversation with the foreperson: "[I]f you have a question that's personal to you regarding any situation that you might have relative to family or otherwise, I will -- I'll address that with you right now. What I don't want to do is address anything relative to any deliberations." In response, the foreperson stated,

"It just -- my work obligation and I -- I can't be on this jury, on this case. There is a lot of discriminating comments among us.... A lot of discriminating comments among the group and they won't -- they not gonna reach a decision [(indiscernible)], doesn't matter. It's not a time problem."

At this point, the judge interrupted the foreperson's explanation and asked about her work commitments. The foreperson reiterated:

"I cannot afford to go on this jury for more than it should right now. One, for my personal, I can't be here next week and, two, from what I am hearing from this group, we're not gonna reach a decision on Monday. There has to be some shoveling on this group. We not gonna reach a decision on Monday."

The judge conferred with counsel, and all agreed that the foreperson should be instructed to return on Monday.

In their discussion, defense counsel remarked that the foreperson's concerns "sound[ed] like a combination of things." The judge agreed, and the prosecutor noted, "[I]t makes a difference if it's one person because there is case law on removing a disruptive juror, and if she says there's discriminating statements being thrown out, but I don't know what she means." The judge responded, "I have no idea." After the foreperson left for the day, the judge stated to counsel, "She struck me as being not sincere with the concern that she expressed." Neither disagreed or objected.

On Monday, the jury resumed deliberations. Two hours into deliberations, the jury sent a note to the judge that they were deadlocked. The prosecutor requested that the judge inquire which jurors the foreperson was speaking about the previous Friday, seemingly referencing the foreperson's report of "discriminating comments," and requested that he ask those jurors "if they [were] able to deliberate based on the facts and circumstances of this case." The judge declined to do so, but he agreed to provide a Tuey-Rodriquez instruction. After the instruction was given, the jury resumed deliberations.

Just a few hours later, the jury submitted another note asking whether they were required to be unanimous on all of the charges. While the judge was conferring...