Opinion
21-P-152
02-10-2022
COMMONWEALTH v. Durvalino BATISTA-DASILVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following oral argument held on December 14, 2021, we issued an order on December 20, 2021, remanding the matter to the Superior Court "for further proceedings to determine whether the juror described as possibly sleeping during portions of the trial participated in deliberations," and directed that court to "conduct such proceedings as may be appropriate to clarify the record, [to] enter a finding on whether the juror in question deliberated or was an alternate, and [to] report that finding to this court, on or before January 31, 2022." By order entered in the Superior Court and in this court on January 13, 2022, a judge of the Superior Court (who was also the trial judge) found, based on consistent representations made by counsel for both the Commonwealth and the defendant at a hearing held on January 13, 2022, that "the only juror who was asleep or possibly asleep at any time during the trial sat in Seat #10 and did not deliberate." There is, accordingly, no basis for the defendant's contention on appeal that he was deprived of a fair trial because one of the jurors was observed to be sleeping during portions of the trial, yet was allowed to continue serving as a juror. The defendant's other claims having been addressed in our order of December 20, 2021, the judgments are affirmed and the order denying the motion for a new trial is affirmed.
We note, with appreciation, the Superior Court's prompt action on our request.
So ordered.
affirmed