Opinion
16-P-731
04-25-2017
COMMONWEALTH v. Roderick James TAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Roderick James Taylor, was convicted of murder in the second degree after a jury trial in 2008. He then filed a motion for new trial, which was denied. The appeal from this denial was consolidated with the direct appeal of his conviction. This court affirmed the defendant's conviction and the denial of his motion for new trial. See Commonwealth v. Taylor, 83 Mass. App. Ct. 1106 (2013). The Supreme Judicial Court took further appellate review, limited to issues raised on direct appeal, and affirmed the conviction as well. Commonwealth v. Taylor, 469 Mass. 516 (2014).
On September 16, 2015, the defendant filed a second motion for new trial, claiming that the trial judge improperly failed to conduct voir dire of reportedly sleeping jurors. The motion further alleged that both trial and original appellate counsel were ineffective in failing to challenge the trial judge's resolution of this issue. The motion was denied without evidentiary hearing after careful consideration by the motion judge, who was not the trial judge. The defendant now appeals the denial of his second motion for new trial. We affirm.
The defendant's claim arises from a single sidebar conference initiated by a note from a juror reporting that another juror, juror no. 10, had been sleeping during testimony. The judge stated that he had noticed that juror no. 10 "appeared to me to be, along with [j]uror [n]o. 15, one of those individuals who I think may close his eyes when he is thinking or listening, but [did] not appear to be sleeping." No attorney raised a concern about juror no. 10.
The judge then indicated that he had "some concerns" about juror no. 8, but did not specify them further. Neither counsel nor any other court personnel noted any concerns or other observations regarding the attentiveness of juror no. 8. Defense counsel at this point stated that he was "worrying about" juror no. 16, who struck defense counsel "as falling asleep a fair amount." No other parties indicated any observations of juror no. 16.
Initially, the judge thought defense counsel was referring to juror no. 15. The clerk corrected the judge. Whether the juror was no. 15 or 16 does not change our analysis.
At the conclusion of this discussion, the judge offered to address the issue "directly with the group or with specific jurors." In response, defense counsel suggested offering the jurors coffee in the mornings, or having the jurors stand. Without objection, the judge instructed the jurors on several options for ensuring continued alertness, including asking for breaks, standing during sidebars, asking for assistance from court officers, and "nudging [their] neighbor[s]." The issue was not raised again in the twelve remaining days of trial.
Because the defendant's claim was readily known and available from the trial transcripts at the time of his consolidated direct appeal, his claim is waived. See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). We therefore limit our review to examining whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
"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 trial judge has discretion as to the nature of any intervention, however, and "not every complaint regarding juror attentiveness requires a voir dire." Commonwealth v. Beneche, 458 Mass. 61, 78 (2010). "The burden is on the defendant to show that the judge's decision in the matter was ‘arbitrary or unreasonable.’ " Ibid. (quotation omitted).
In evaluating the reliability of a claim that a juror has been sleeping, a 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." Commonwealth v. Bois, 476 Mass. 15, 28 (2016) (quotation omitted). A judge may rely on his or her personal observations of the juror in question in determining that a report of a sleeping juror is unreliable. See Commonwealth v. Morales, 453 Mass. 40, 47 (2009) ; Commonwealth v. Vaughn, 471 Mass. 398, 413 (2015).
Here, the trial judge explicitly relied on his own observations of juror no. 10 to determine that he had not been sleeping. In doing so, it is clear that the trial judge did not find the reporting juror's note regarding juror no. 10 reliable enough to warrant further action, particularly in light of the judge's independent observations of juror no. 10 and conclusion that he was not sleeping. Accordingly, no further action was necessary. See Vaughn, 471 Mass. at 413 ("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").
As to juror no. 8, the judge expressed "concerns" regarding the juror, but did not detail or specify further the nature or extent of the concerns, nor did counsel, court staff, or other jurors express any apprehension about the juror. Concerns about juror inattentiveness do not necessarily require voir dire, and may permit other remedies. See Dancy, 75 Mass. App. Ct. at 181 (where "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"). At the conclusion of the relevant sidebar conference, the judge instructed the jury on the issue of wakefulness and offered several options to assist them in remaining alert. Given the tentativeness of the judge's expressed concern as to juror no. 8, there is insufficient record evidence to demonstrate that this response to any observed inattentiveness was arbitrary or unreasonable.
As to juror no. 16, defense counsel indicated that he worried the juror was "falling asleep a fair amount," but offered no further description or detail as to this observation, and did not indicate during which portions of testimony he believed the sleeping to have occurred. No other person in the court room expressed concern about juror no. 16, and defense counsel advocated a group remedy for the issue, despite the judge's express offer to address the matter individually with jurors. In the context of this particular discussion, during which the judge demonstrated his close observation of the jurors during the course of the trial, it is reasonable to infer that the judge relied on his observations in finding defense counsel's conclusory report to lack reliability. The judge's reliance on his own observations was proper. Vaughn, 471 Mass. at 413.
We note that though trial counsel provided an affidavit in support of the defendant's second motion for new trial, the affidavit is silent as to any observations counsel may have made of inattentive or sleeping jurors at trial.
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There was therefore no error in the judge's determination that juror voir dire was not required as to any of the jurors challenged by the defendant. "As there was no error, there can be no ineffective assistance of trial counsel" or appellate counsel. Commonwealth v. Dykens, 438 Mass. 827, 837 (2003). The defendant's second motion for new trial was accordingly properly denied.
Order denying motion for new trial affirmed.