Commonwealth v. John G. Kenney.

• Court: Massachusetts Appeals Court
• Decided: February 22, 2023
• Docket: 22-P-0094
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-94

COMMONWEALTH

vs.

JOHN G. KENNEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted in the District Court of

operating a motor vehicle while under the influence of alcohol

(OUI), fifth offense, and negligent operation of a motor

vehicle. For the reasons that follow, we vacate so much of the

OUI conviction as finds the defendant guilty of a fifth offense

but otherwise affirm the convictions.

Sleeping juror. The defendant was tried on the OUI and

negligent operation charges before a jury.1 After the close of

the evidence and during the judge's final instructions, the

judge called counsel to a sidebar. He told the attorneys that

he had noticed that "one of the jurors seem[ed] to be nodding

off," and informed them he would have the jurors stand up and

1 The judge properly bifurcated the OUI charge from the subsequent offense allegation. See G. L. c. 278, § 11A. stretch. The judge explained that he did not "think it [was] a

problem," he "just saw it a couple of times." Neither attorney

objected to the proposed course of action or requested a voir

dire of the juror. The judge invited the jurors to stand and

stretch, then continued with his instructions. On appeal, the

defendant argues that the judge erred in failing to conduct a

voir dire of a juror who appeared to be nodding off. We

disagree.

"[A] judicial observation that a juror is asleep . . .

requires prompt judicial intervention." Commonwealth v. McGhee,

470 Mass. 638, 643-644 (2015), quoting Commonwealth v. Beneche,

458 Mass. 61, 78 (2010). However, "[n]ot every complaint

regarding juror attentiveness requires a voir dire."

Commonwealth v. Bois, 476 Mass. 15, 28 (2016), quoting McGhee,

supra at 644. "A judge has considerable discretion in

addressing such a problem." Commonwealth v. Braun, 74 Mass.

App. Ct. 904, 905 (2009). Where, as here, the defendant

contends that the judge's response was inadequate, "[t]he burden

is on the defendant to show that the judge's response to

information about a sleeping juror was 'arbitrary or

unreasonable.'" McGhee, supra, quoting Beneche, supra.

The defendant has not satisfied his burden in this case.

After observing the juror appearing to "nod off," the judge

reacted promptly by inviting the jurors to stand and stretch.

2 As the Commonwealth correctly notes, this case is factually

similar to Commonwealth v. Dancy, 75 Mass. App. Ct. 175 (2009),

in which we endorsed a similar response under similar

circumstances. See id. at 181 ("If the sleeping is observed at

the outset or when the juror is beginning to 'nod off,' it is

likely that a break or stretch will suffice").2 The cases on

which the defendant relies are readily factually

distinguishable. E.g., Braun, 74 Mass. App. Ct. at 905 ("The

juror's inattentiveness was not a momentary lapse, but an

inattention that spanned all or portions of the testimony of two

witnesses and the judge's instructions to the departing jury").

To the extent the defendant argues that the juror in question

slept through important instructions regarding the jury's use of

opening and closing arguments, the contention is speculative.

The record does not indicate that the judge had observed the

juror to have been inattentive over a lengthy period, see Dancy,

supra at 182, nor that the juror had indeed been "sleeping."

See Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 433-434

(2005) ("Absent from the record is any mention of a juror

actually being asleep. The trial judge stated that the juror

'appear[ed] to be nodding off'"). In any event, only a few

2 The defendant's attempt to frame Dancy as inapplicable based on some distinction between "nodding off" and "beginning to nod off," is unconvincing.

3 hours earlier in the one-day trial, the judge had given the

jurors preliminary instructions in which he cautioned them about

the distinction between evidence and the advocates' opening and

closing arguments. Moreover, the defendant points to nothing in

the opening or closing arguments that would have impacted a

juror absent this instruction. We conclude that the judge was

in a superior position to observe and assess the juror's

attentiveness, and his chosen intervention was within his

discretion.

Stipulation to subsequent offense. After the jury returned

with a guilty verdict, defense counsel indicated that he would

"stipulate" to the four prior offenses, and a handwritten

stipulation was signed by the attorneys and the judge. The

defendant did not sign the stipulation. Although the judge

asked the defendant if he was being forced to enter the

stipulation, to which the defendant answered no, and whether it

was a voluntary stipulation, to which the defendant answered

yes, the judge did not otherwise conduct any jury waiver or plea

colloquy. As the Commonwealth properly concedes, this procedure

did not satisfy the requirements of G. L. c. 278, § 11A;

consequently, to the extent the defendant's conviction for OUI

as a fifth offense relies on the stipulation, it cannot stand.

4 See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547-548

(2008).3

Conclusion. We affirm the judgment on the conviction of

negligent operation of a motor vehicle. On the count of the

complaint alleging OUI, fifth offense, the underlying conviction

of OUI is affirmed, but so much of the judgment as finds the

defendant guilty of a fifth offense is vacated. The sentence on

the OUI conviction is vacated and the case is remanded to the

District Court for further proceedings consistent with this

memorandum and order. See Commonwealth v. Jarvis, 68 Mass. App.

Ct. 538, 543 (2007).

So ordered.

By the Court (Meade, Desmond & Hand, JJ.4),

Clerk

Entered: February 22, 2023.

3 We read the defendant's brief to say that under Dussault, the entirety of his OUI conviction must be vacated here. To the extent that he does so, he misreads the case. In Dussault, as in this case, we affirmed the underlying OUI conviction and vacated only so much of the conviction as found the defendant guilty of a third offense. Dussault, 71 Mass. App. Ct. at 549. 4 The panelists are listed in order of seniority.