Opinion
19-P-171
09-20-2019
COMMONWEALTH v. Jessica D. FAIRCLOTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Jessica D. Faircloth, of operating a motor vehicle while under the influence of alcohol, and negligent operation of a motor vehicle. The defendant then pleaded guilty to the second offense portion of the complaint charging operating under the influence. See G. L. c. 278, § 11A. On appeal, the sole issue raised by the defendant concerns the adequacy of the judge's response to an issue raised by defense counsel during the final instructions to the jury.
After the close of the evidence and during the judge's instructions, defense counsel asked to approach sidebar as the judge began to explain a defendant's right not to testify. At sidebar, defense counsel stated that one juror "looks like she's falling asleep." Defense counsel requested that the judge start the instruction over, and the judge agreed. Defense counsel added "she's been nodding" and "it just started." The trial judge then invited the jury "to stand up and stretch for a moment" to "[g]et that blood pumping" before restarting the instruction on a defendant's right not to testify and continuing with the remainder of the instructions. The jury returned a verdict of guilty on the charges of operating a motor vehicle while under the influence of alcohol and negligent operation of a motor vehicle.
Discussion. Defendants and the public at large have a "right to decisions made by alert and attentive jurors." Commonwealth v. Beneche, 458 Mass. 61, 78, 933 N.E.2d 951 (2010), quoting Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181, 912 N.E.2d 525 (2009). As such, "a judicial observation that a juror is asleep, or a judge's receipt of reliable information to that effect, requires prompt judicial intervention." Beneche, supra, quoting Dancy, supra. The judge's obligation to intervene arises only if the judge first determines that the information is reliable. Thus, "not every complaint regarding juror attentiveness requires a voir dire." Commonwealth v. McGhee, 470 Mass. 638, 644, 25 N.E.3d 251 (2015), quoting Beneche, supra.
Here, as in Beneche, the report that a juror may be nodding off or could be sleeping was a tentative report, and did not mandate a voir dire. See Beneche, 458 Mass. at 79, 933 N.E.2d 951. See also Commonwealth v. Alleyne, 474 Mass. 771, 777-778, 54 N.E.3d 471 (2016) (finding information to be tentative where judge was alerted that juror "appears to be struggling to remain awake through the entire testimony"). As in Beneche, the judge "responded immediately to counsel's concerns." Beneche, supra at 78-79, 933 N.E.2d 951. In fact, in the case before us, the judge went beyond simply agreeing to monitor the juror as the judge agreed to do in Beneche. See id. at 79, 933 N.E.2d 951. Here, the judge intervened by inviting jurors to stand and take a stretch, and by adopting defense counsel's suggestion to restart his instructions concerning the defendant's right not to testify. "The burden is on the defendant to show that the judge's decision in the matter was ‘arbitrary or unreasonable.’ " Id. at 78, 933 N.E.2d 951, quoting Commonwealth v. Brown, 364 Mass. 471, 476, 305 N.E.2d 830 (1973). The defendant has not met this burden.
Judgments affirmed.