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SJC-13279
COMMONWEALTH vs. NYASANI WATT.
Suffolk. March 8, 2023. – January 11, 2024.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Homicide. Constitutional Law, Assistance of counsel. Practice, Criminal, Postconviction relief, Assistance of counsel.
Indictments found and returned in the Superior Court Department on December 21, 2011.
Following review by this court, 484 Mass. 742 (2020), a motion for a new trial, filed on August 10, 2020, was heard by Mark D. Mason, J.
A request for leave to appeal was reported by Cypher, J., in the Supreme Judicial Court for the county of Suffolk.
Elizabeth Doherty for the defendant. Elisabeth Martino, Assistant District Attorney, for the Commonwealth. Afton M. Templin, Committee for Public Counsel Services, for youth advocacy division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.
BUDD, C.J. In 2020, this court affirmed Nyasani Watt's
convictions of murder in the first degree and related offenses, 2
as well as the denials of his motions for a new trial, after
plenary review under G. L. c. 278, § 33E (§ 33E). Commonwealth
v. Watt, 484 Mass. 742, 765 (2020). The defendant subsequently
filed another motion for a new trial alleging, for the first
time, that his trial counsel slept during critical portions of
the trial, constructively depriving him of his constitutional
right to counsel. A Superior Court judge (motion judge), who
was not the trial judge, denied the motion without a hearing,
and the defendant sought leave to appeal the denial from a
single justice of this court pursuant to § 33E. The single
justice reserved and reported this matter to the full court.
For the reasons discussed infra, we reverse the order denying
the defendant's motion and remand this matter to the Superior
Court for a new trial.1
Background. The evidence presented in the defendant's
trial is summarized in Watt, 484 Mass. at 744-745. Facts
concerning the postconviction pleadings and subsequent
allegations against trial counsel are taken from the record and
from the undisputed findings of the motion judge.
In 2013, the defendant and his codefendant, Sheldon Mattis,
were convicted of murder in the first degree for shootings that
1 We acknowledge the amicus brief submitted by the youth advocacy division of the Committee for Public Counsel Services and Citizens for Juvenile Justice. 3
killed sixteen year old Jaivon Blake and wounded fourteen year
old Kimoni Elliott. Watt, 484 Mass. at 744. Following trial,
the defendant's trial counsel withdrew, and new counsel filed an
appearance as the defendant's appellate counsel (first appellate
counsel). The defendant moved for postconviction relief and a
new trial based on claims of extraneous juror influence. See
id. at 757-761. Although the defendant raised with his first
appellate counsel that his trial counsel slept during portions
of the trial, first appellate counsel dismissed the issue as
unmeritorious and did not investigate it further.
The defendant's first motion, essentially treated as a
motion for a new trial, was denied in March 2015, and his
subsequent motion for a new trial was denied in October 2017.
At the defendant's request, his first appellate counsel withdrew
in December 2017. The defendant obtained a second, and his
current, appellate counsel (second appellate counsel), who filed
a supplemental motion in support of a new trial.2 This motion
was denied in July 2018. The defendant's appeal from his
convictions and from the denials of his motions for a new trial
were consolidated before this court and received plenary review
pursuant to § 33E. On December 10, 2019, after this court heard
2 The supplemental motion raised an ineffective assistance of counsel claim based on trial counsel's failure to investigate a "critical" aspect of a prosecution witness's testimony. 4
oral argument, second appellate counsel learned for the first
time from the codefendant's trial counsel that the defendant's
trial counsel had slept during portions of the trial.3 Almost
six months after oral argument, this court affirmed the
defendant's convictions and the orders denying his motions.
Watt, 484 Mass. 765. Approximately two months later, the
defendant filed another motion for a new trial, contending that
he was deprived of his right to counsel because his attorney was
sleeping during critical parts of the trial. In support of this
motion, the defendant submitted his own affidavit as well as
affidavits from his second appellate counsel, his codefendant,
his codefendant's two trial attorneys, the two trial
prosecutors, and his mother. Each affidavit described the
affiant's recollection as to whether trial counsel was observed
sleeping during the trial and, if so, when and for how long.4
The defendant's affidavit states that trial counsel "fell
asleep a number of times during the trial," including during
jury selection and the questioning of two witnesses, one
possibly being Jeremiah Rodriguez, a key witness for the
3 On receiving this information, second appellate counsel confirmed its veracity with the defendant and others who were present at the defendant's trial and filed the motion for a new trial that is before this court on appeal.
4 It was not possible to obtain an affidavit from the defendant's trial counsel as he passed away in June 2019. 5
prosecution. The defendant's affidavit further recounts that
others in the court room, including the trial judge and
prosecutor, witnessed trial counsel sleeping during portions of
the trial, that trial counsel at one point was snoring, and that
trial counsel tried to conceal his fatigued state.
One of the codefendant's two trial attorneys attested that
the defendant's trial counsel slept at least once during
testimony. The other attorney stated in his affidavit that the
defendant's trial counsel closed his eyes several times during
the trial, but that he was uncertain whether trial counsel was
sleeping.
One of the two trial prosecutors stated in his affidavit
that he had observed the defendant's trial counsel "dozing off"
on multiple occasions during the trial, and that he recalled one
specific instance in which he had to rouse trial counsel to show
him a photograph before showing it to a testifying witness. The
other trial prosecutor recalled being informed by another
attorney at trial that the defendant's trial counsel had nodded
off during the examination of one witness.
The codefendant stated in his affidavit that he saw the
defendant's trial counsel "sleeping or nodding off" a number of
times during the trial and noted two specific instances: during
the testimony of an emergency medical technician and during the
testimony of the younger brother of one of the victims. The 6
defendant's mother stated in her affidavit that trial counsel
"nodded off to sleep" or "was dozing" at some points during the
trial. She further stated that trial counsel appeared to be
"sick" and "did not seem alert," and that he had informed her
that he had "recently been hospitalized."
The defendant's second appellate counsel recounted in her
affidavit that after becoming aware of the allegation, she
reached out to the jurors from the trial regarding whether they
observed the defendant's trial counsel sleeping. The one juror
who responded did not recall anything specific about the
defendant's trial counsel. Second appellate counsel spoke with
the defendant's first appellate counsel, who confirmed that the
defendant did raise "something" about trial counsel "being able
to stay awake at trial," but that the defendant's first
appellate counsel did nothing with the information because he
believed there was no basis to pursue the claim.
The motion judge indicated that he credited the affidavits,
all of which corroborated that trial counsel had fallen asleep
multiple times during the trial. The motion judge nevertheless
denied the defendant's motion for a new trial, concluding that
the defendant had waived the claim by failing to raise it on
appeal or in a previous motion for a new trial, and that trial
counsel's slumber neither rose to the level of structural error
nor prejudiced the defendant's case. 7
Discussion. 1. Gatekeeper analysis. Because the
defendant raised the issue of his trial counsel sleeping during
the trial after this court had heard and decided his direct
appeal, we review the appeal from the denial of the instant
motion for a new trial only if the defendant presents "a 'new
and substantial' issue that this court could not have considered
in the course of plenary review." Commonwealth v. Gunter, 459
Mass. 480, 487, cert. denied, 565 U.S. 868 (2011). See G. L.
c. 278, § 33E. We conclude that he has done so.
Section 33E, the mechanism by which this court exercises
plenary review of all convictions of murder in the first degree,
provides this court with "extraordinary powers" to "consider the
whole case, both the law and the evidence, to determine whether
there has been any miscarriage of justice." Dickerson v.
Attorney Gen., 396 Mass. 740, 744 (1986). This unique form of
review requires our consideration of issues raised by the
defendant, as well as issues not raised, "but discovered as a
result of our own independent review of the entire record." Id.
Balancing the exercise of our extraordinary powers with the
interests of judicial economy and finality, § 33E simultaneously
limits a capital defendant's "ability to appeal subsequent
postconviction motions" following plenary review. Id. Pursuant
to § 33E, such a defendant must first obtain leave to pursue an
appeal from a single justice of this court, who acts as 8
gatekeeper to determine whether the defendant "presents a new
and substantial question which ought to be determined by the
full court." G. L. c. 278, § 33E.5
"The bar for establishing that an issue is 'substantial' in
the context of the gatekeeper provision of § 33E is not high."
Gunter, 459 Mass. at 487. An issue is "substantial" if it is "a
meritorious issue in the sense of being worthy of consideration
by an appellate court." Id. Here, the defendant presents us
with a substantial issue, where he alleges that his trial
counsel's slumber deprived the defendant of his right to the
assistance of counsel throughout his trial.
Whether a defendant presents a "new" issue is a slightly
more complex question.6 Gunter, 459 Mass. at 487. "An issue is
not 'new' within the meaning of G. L. c. 278, § 33E, where
either it has already been addressed, or where it could have
been addressed had the defendant properly raised it at trial or
on direct review." Id., quoting Commonwealth v. Ambers, 397
5 This threshold determination may be made by a single justice or may be reserved and reported to the full court, as occurred in this case. See Commonwealth v. Johnson, 461 Mass. 1, 2 (2011).
6 Given the strict finality of gatekeeper determinations, we do not often have occasion to analyze whether claims are "new" as a full court. A single justice's determination of a new and substantial issue "is final and unreviewable." Gunter, 459 Mass. at 485. Thus, unless the gatekeeper function itself is reserved and reported (as it was here), the question would not come before us. 9
Mass. 705, 707 (1986). In interpreting § 33E, we generally have
"require[d] that the defendant present all his [or her] claims
of error at the earliest possible time." Gunter, supra, quoting
Ambers, supra. Accordingly, we have rejected gatekeeper
petitions where a defendant raises no new facts and only
presents "subtle shift[s]" in his or her theory of the case,
Commonwealth v. Watkins (No. 1), 486 Mass. 801, 807 (2021),7 and
where previously litigated claims are repackaged as claims of
ineffective assistance of counsel, see Gunter, supra at 490
("Reframing an omitted issue as an ineffective assistance of
counsel claim does not necessarily make it 'new'").
Here, because no one contemporaneously raised the fact that
trial counsel was sleeping, the error was not apparent in the
trial record. Contrast Trigones v. Attorney Gen., 420 Mass.
859, 861 n.5 (1995) (defendant's gatekeeper petition properly
denied where defendant failed to demonstrate that claims were
not evident from record on direct appeal). Moreover, first
appellate counsel rejected the claim as nonviable when the
defendant brought the matter to his attention and therefore did
7 See also, e.g., Gunter, 459 Mass. at 489 (defendant did not raise "new" issue where, although presented as "different theory," defendant did not allege change in applicable law or any new facts); Commonwealth v. Pisa, 384 Mass. 362, 367 (1981) ("The legal theories, constitutional or otherwise, underlying [the defendant's] three other claims were available at the time of [the defendant's] first or second appeal . . ."). 10
not raise it in the defendant's direct appeal. As a result of
first appellate counsel's ineffective assistance, this court was
not able to consider the claim under its plenary review, despite
the efforts of the defendant.8 In these unique circumstances, we
conclude that the defendant has presented a "new" question under
§ 33E, because this claim was not available to the defendant in
prior proceedings. To hold otherwise would undermine the core
purpose of § 33E's framework guaranteeing capital defendants
exclusive access to plenary review "to determine whether there
has been any miscarriage of justice." Dickerson, 396 Mass. at
744.
2. Merits of appeal. Having determined that the defendant
meets the § 33E gatekeeper criteria, we turn to a review of the
denial of the defendant's motion for a new trial. Where, as
here, the motion judge was not the trial judge and the evidence
We note that the defendant's current motion did not allege 8
that his first appellate counsel provided ineffective assistance of counsel for failing to investigate the claim that trial counsel had been sleeping during the trial. Although the question has not been put before us, the failure to investigate an alleged error of this magnitude clearly was unreasonable. See Commonwealth v. Tavares, 491 Mass. 362, 366 (2023), quoting Strickland v. Washington, 466 U.S. 668, 691 (1984) (counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigation unnecessary"). Accordingly, where the defendant raised the issue with his first appellate counsel who refused to pursue it, we do not fault the defendant for failing to include this claim on direct appeal. In these unique circumstances, it would be unreasonable to require the defendant to have done more. 11
provided was purely documentary, our review is de novo. See
Commonwealth v. Lykus, 451 Mass. 310, 326 (2008).
A judge "may grant a new trial at any time if it appears
that justice may not have been done." Mass. R. Crim. P. 30 (b),
as appearing in 435 Mass. 1501 (2001). The defendant argues
that he constructively was deprived of his right to counsel
under the Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights because his
attorney was sleeping during the defendant's trial.9 Assessing
the merits of the defendant's motion, we determine that a
defendant constructively is deprived of his or her
constitutional right to counsel under art. 12 where trial
counsel sleeps for a significant portion or during an important
aspect of trial.
a. Legal framework. It is well established in the
Commonwealth, as in Federal jurisdictions, that a person may be
deprived of counsel in certain circumstances, even though
counsel is present physically. See United States v. Cronic, 466
U.S. 648, 659 n.25 (1984) (constitutional error found, without
any showing of prejudice, where counsel was present but was
9 Article 12 states in relevant part that "every subject shall have a right . . . to be fully heard in his defense by himself, or his coun[sel] at his election." The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the [a]ssistance of [c]ounsel for his defen[s]e." 12
"prevented from assisting the accused during a critical stage of
the proceeding"). See also Powell v. Alabama, 287 U.S. 45, 57-
59 (1932) ("defendants were not accorded right of counsel in any
substantial sense" when counsel was appointed on first day of
trial for capital offense without preparation or sufficient time
to advise defendants or prepare defense); Commonwealth v. Dew,
492 Mass. 254, 263-267 (2023) (defendant constructively denied
counsel where counsel was found to have actual conflict of
interest). We have not had occasion to consider the point at
which an attorney's slumber during trial results in deprivation
of counsel requiring reversal. Thus, we look for guidance to
the Federal circuit courts that have addressed this question
with respect to the Sixth Amendment.10
Notably, although those courts agree as a general matter
that a trial counsel's slumber constructively may deny
defendants their right to counsel such that a new trial is
warranted, each sets forth slightly differing conceptions of
when that occurs. The United States Courts of Appeals for the
Fourth, Fifth, Sixth, and Ninth Circuits focus on whether
10Although we review and consider the available Federal precedents that speak to the meaning of the Sixth Amendment in order to interpret art. 12, our decision today neither rests on nor is "interwoven with the [F]ederal law." Michigan v. Long, 463 U.S. 1032, 1040 (1983). See id. at 1041 (Federal cases "used only for the purpose of guidance" do not negate "separate, adequate, and independent grounds" of State court decision). 13
counsel slept for a substantial portion of the trial. See
United States v. Ragin, 820 F.3d 609, 612 (4th Cir. 2016) ("a
defendant is deprived of his Sixth Amendment right to counsel
when counsel sleeps during a substantial portion of the
defendant's trial"); Muniz v. Smith, 647 F.3d 619, 623-626 (6th
Cir. 2011), cert. denied, 565 U.S. 1214 (2012) (recognizing that
denial of counsel with presumed prejudice where "attorney slept
through a substantial portion of the trial"); Burdine v.
Johnson, 262 F.3d 336, 341 (5th Cir. 2001), cert. denied, 535
U.S. 1120 (2002) ("a defendant's Sixth Amendment right to
counsel is violated when that defendant's counsel is repeatedly
unconscious through not insubstantial portions of the
defendant's capital murder trial"); Javor v. United States, 724
F.2d 831, 833 (9th Cir. 1984) ("when an attorney for a criminal
defendant sleeps through a substantial portion of the trial,
such conduct is inherently prejudicial and thus no separate
showing of prejudice is necessary"). Meanwhile, the United
States Court of Appeals for the Second Circuit focuses on
whether counsel was unconscious "at critical times," a
consideration that the Fifth Circuit has also discussed.
Tippins v. Walker, 77 F.3d 682, 687 (2d Cir. 1996) (at trial,
"when counsel [was] unconscious at critical times" or
"repeatedly unconscious . . . for periods of time in which
defendant's interests were at stake," prejudice may be 14
presumed). See Burdine, supra at 349 (fact that counsel slept
during "critical stages of trial" significant).
As discussed infra, based on our review of the Federal
cases that address sleeping counsel, we conclude that under art.
12, a deprivation of counsel occurs when counsel sleeps for a
significant portion of trial or sleeps through an important
i. Significant portion of trial. Whether counsel slept
for a significant portion of the trial depends on, but is not
limited to, considerations of the duration and frequency of
counsel's sleeping. See Ragin, 820 F.3d at 622 n.11. For
example, in Ragin, the Fourth Circuit held that no separate
showing of prejudice was necessary where counsel slept
"[f]requently . . . almost every day . . . morning and evening"
for "'[thirty] minutes at least' at a time." Id. at 613, 622-
623. In Tippins, the Second Circuit held that, even where it
could not be determined precisely when or for how long counsel
slept, no showing of prejudice was required where it was well
supported that counsel slept every day at trial and "was
repeatedly unconscious at trial for periods of time in which 15
[the] defendant's interests were at stake."11 Tippins, 77 F.3d
at 687.
Under this standard, a defendant might prevail regardless
of the demonstrated importance of the particular times at which
counsel slept, if the duration and frequency of counsel's
sleeping was significant in and of itself. Although less
frequent or shorter periods of unconsciousness at trial may
support a claim of structural error, mere momentary lapses in
attention or consciousness are insufficient.12 See Tippins, 77
11In Tippins, the court's analysis also included that counsel slept during critical testimony of a codefendant and at least one witness and that, on at least one occasion, the trial judge stopped the trial to instruct counsel "not to sleep any further, [and] that he should be paying attention." Tippins, 77 F.3d at 687.
12Such claims still may be brought under the traditional ineffective assistance of counsel framework. See Strickland, 466 U.S. at 691-692; Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Similarly, broad claims of a condition or behavior by counsel that could cause serious lapses in attentiveness or unconsciousness are best suited for review as claims of ineffective assistance requiring a defendant to demonstrate actual prejudice resulting from demonstrated, deficient behavior. See, e.g., Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir. 1992), cert. denied, 507 U.S. 960 (1993) ("given the varying effects health problems can have on an individual's ability to function, claims of ineffective assistance based on attorney illness are best suited to the fact-specific prejudice inquiry mandated by Strickland"); Smith v. Ylst, 826 F.2d 872, 875-876 (9th Cir. 1987), cert. denied, 488 U.S. 829 (1988) (generalized claim of attorney's mental illness evaluated under ineffective assistance framework because "mere existence of a loosely described mental illness or condition cannot be assumed to affect legal proceedings unless the condition manifests itself in courtroom behavior"). 16
F.3d at 688 ("the appearance of 'sleeping' may cover a range of
behavior. Lawyers may sometimes affect a drowsy or bored look
to downplay an adversary's presentation of evidence");
Commonwealth v. Keaton, 36 Mass. App. Ct. 81, 87 (1994)
("Meditation may be mistaken for somnolence"). But see Tippins,
supra at 689 ("The point is well taken that consciousness and
sleep form a continuum, and that there are states of drowsiness
that come over everyone from time to time during a working day,
or during a trial, for that matter. The record here
demonstrates that [trial attorney] was actually unconscious").
Rather, the core inquiry focuses on noticeable and meaningful
lapses of attentiveness so significant throughout the trial that
"the result of the particular proceeding is unreliable because
of a breakdown in the adversarial process that our system counts
on to produce just results." Ragin, 820 F.3d at 620, quoting
Strickland v. Washington, 466 U.S. 668, 696 (1984).
ii. Important aspect of trial. Even if a defendant cannot
demonstrate that counsel slept for a significant portion of the
entire trial, prejudice may be presumed where a defendant
demonstrates that counsel slept through an important aspect of
trial. In so holding, we again draw support from the Federal
circuit courts, which have taken into consideration the
significance of the particular events through which counsel
slept. 17
For instance, in Tippins, 77 F.3d at 689-690, the Second
Circuit presumed prejudice where trial counsel, in addition to
missing parts of the testimony of other prosecution witnesses,
was found to have slept through "half" of a codefendant's
testimony and "two-thirds" of the testimony of a confidential
informant -– "two witnesses of undeniable importance to the
prosecution of [the defendant]." In Burdine, 262 F.3d at 349,
the Fifth Circuit held that the defendant was entitled to a
presumption of prejudice where defense counsel repeatedly slept
"through not insubstantial portions" of trial during which the
prosecution introduced evidence and examined witnesses adverse
to the defendant. The Fifth Circuit characterized these moments
as comprising the "critical guilt-innocence phase of [the
defendant's] capital murder trial." Id. By comparison, the
Sixth Circuit found that no presumption of prejudice was
warranted where a single juror recalled that defense counsel
slept through a "brief" period of the defendant's cross-
examination. Muniz, 647 F.3d at 624.
In suggesting that courts assess the importance of any
given aspect of trial, we are mindful of the fact that the
entire trial itself may be considered to be a "critical stage"
where a defendant's Sixth Amendment and art. 12 rights attach.
See Commonwealth v. Neary-French, 475 Mass. 167, 170-172 (2016).
We emphasize that our ruling today does not augment, reduce, or 18
even rely on our existing body of caselaw identifying "critical
stages of the prosecution." Id. at 170, 173 ("The term
'critical stage' is a term of art and only refers to [those]
actions and events postindictment or arraignment" at which
defendant's right to counsel attaches).13 Rather, the standard
we adopt today for determining whether a constructive
deprivation of counsel has occurred at trial affirms that which
already may be intuitive -- that there is a distinction between
those portions of trial where unremarkable, ancillary evidence
is being presented versus when direct evidence of guilt or
innocence is being presented, and that the line between the two
must be assessed on a case-by-case basis. And although those
distinctions may speak to the "magnitude" of constitutional
error at play, Commonwealth v. Valentin, 470 Mass. 186, 196
(2014), quoting Cronic, 466 U.S. at 659, acknowledging such a
distinction for the limited purpose of determining whether a
trial counsel's sleeping constitutes structural error does not
diminish the extent to which a defendant's foundational right to
counsel applies during critical stages of the proceedings, such
as trial.
13This separate body of law is useful primarily to decipher which moments leading up to, surrounding, and following trial, in addition to the trial itself, are "critical" and require counsel's presence. 19
We are convinced that this dual approach to considering
claims of sleeping counsel provides a proper basis to determine
whether the defendant constructively was denied counsel under
art. 12. Although any slumber by counsel during trial is
distressing and detrimental, counsel's constructive absence
during either a significant portion of trial or an important
aspect of trial so offends the constitutional protections
surrounding the right to assistance of counsel that it renders
the entire adversary process "presumptively unreliable" and
creates an uncurable error, "even if the error was ultimately
harmless." Valentin, 470 Mass. at 196, quoting Cronic, 466 U.S.
at 659.
This approach is appropriate in light of the unique
evidentiary hurdles facing defendants whose rights to counsel
have been infringed due to a deprivation of counsel. Indeed,
when counsel is absent either for a significant portion or
during an important stage of trial, "the evil lies in what the
attorney does not do, and is . . . not readily apparent on the
record." Javor, 724 F.2d at 834, quoting Cooper v. Fitzharris,
586 F.2d 1325, 1332 (1978), cert. denied, 440 U.S. 974 (1979).
b. Application. Here, the affidavits submitted by the
defendant "provide a sufficient factual basis" to support the
conclusion that trial counsel slept for a significant portion of 20
trial, and likely slept through an important aspect of trial.
Commonwealth v. Sylvain, 473 Mass. 832, 839 (2016).
Based on the affidavits, multiple people had observed trial
counsel sleeping during trial. The defendant asserts that trial
counsel slept recurrently and during significant moments, such
as jury selection and the testimony of two witnesses, possibly
including Jeremiah Rodriguez, a central prosecution witness.
Codefendant Mattis confirmed that the defendant's trial counsel
slept repeatedly during trial, naming two specific occasions,
including the testimony of an emergency medical technician and
the victim's younger brother. One of the prosecutors at trial
had contemporaneously discussed with a colleague and one of
codefendant's counsel that trial counsel slept on several
distinct occasions, including one where the prosecutor had to
rouse trial counsel to review a photograph before it was shown
to the testifying witness. One attorney for the codefendant
confirmed that trial counsel slept at least once during
testimony; the other attorney for the codefendant stated that
trial counsel's eyes were closed several times throughout the
trial. The defendant's mother also confirmed the repetitiveness
of trial counsel's sleeping during trial. Notably, none of the
affiants provided statements to the contrary.
Together, these affidavits not only "cast doubt" on whether
the defendant was deprived of his constitutional right to 21
counsel, but also demonstrate as much (citation omitted).
Commonwealth v. McWilliams, 473 Mass. 606, 622-623 (2016). See
Commonwealth v. Gagliardi, 418 Mass. 562, 572 (1994), cert.
denied, 513 U.S. 1091 (1995) (no abuse of discretion where judge
decided motion for new trial on memorandum of law without
holding evidentiary hearing where only substantial issue raised
was question of law, not fact). First, we note that this is not
a case where we only have a defendant's self-serving affidavit
in support of the defendant's claim. See Commonwealth v.
Goodreau, 442 Mass. 341, 351 (2004). To the contrary, the
defendant submitted affidavits from both sides of the aisle, all
of which corroborate the defendant's claim that trial counsel
was sleeping throughout trial. See Ragin, 820 F.3d at 621
("every witness who testified stated that [trial counsel for the
defendant] was asleep, appeared to be asleep, or was 'nodding
off' at some point" during trial). Second, as the affiants'
descriptions of when trial counsel slept varied, with some
accounts more specific than others, we cannot discount the
possibility that each account represents a separate occasion
during which trial counsel was asleep. See id. at 621-622
(error to "fail[] to consider the likely possibility that each
witness saw [trial counsel] asleep or nodding off on different
occasions"). Moreover, the fact that the trial judge neither
contemporaneously addressed the issue nor provided an affidavit 22
as to the defendant's claim on appeal is not dispositive. See
id. at 622 (rejecting argument that lack of remediation or
admonishment by judge on record suggested that trial counsel was
not asleep during trial).14
Based on the uncontested affidavits provided by the
defendant, "we find it impossible not to conclude" that trial
counsel at least slept through a significant portion of the
trial, and likely through an important part of trial, i.e.,
Jeremiah Rodriguez's testimony.15 Ragin, 820 F.3d at 622. Thus,
we conclude that the defendant was deprived of his right to
counsel under art. 12.
c. Structural error and substantial risk of miscarriage of
justice. Having concluded that the defendant was deprived of
his right to counsel under art. 12, we next consider whether the
error entitles the defendant to a new trial.
14Similarly, we cannot conclude that any sleeping by trial counsel could not have been significant if neither the Commonwealth nor the trial judge contemporaneously addressed the issue on the record. Cf. Tippins, 77 F.3d at 690 ("we cannot count on a trial judge to serve as the defense lawyer's alarm clock whenever matters arise that touch the client's interest").
15The claim that trial counsel slept through Jeremiah Rodriguez's testimony arguably is less conclusive from the affidavits than the fact that trial counsel was repeatedly asleep for a significant portion of the trial. However, we note that the potential veracity of the claim that a trial counsel was asleep during the Commonwealth's presentation of critical evidence against a defendant would suffice as a separate basis to determine structural error under the disjunctive standard we recognize today. 23
Deprivation of counsel amounts to structural error, i.e.,
error that affects the "framework within which the trial
proceeds, rather than simply . . . the trial process itself."
Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Because
structural error generally "render[s] a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence," Commonwealth v. Hampton, 457 Mass. 152, 163
(2010), quoting Washington v. Recuenco, 548 U.S. 212, 219
(2006), preserved claims of structural error, if substantiated,
result in automatic reversal, Commonwealth v. Williams, 481
Mass. 443, 454 (2019). However, unpreserved claims of error --
even those that are structural in nature -– are reviewed to
determine "whether the error created a substantial risk of a
miscarriage of justice." Commonwealth v. Francis, 485 Mass. 86,
88 n.1, 102-103 (2020), cert. denied, 141 S. Ct. 2762 (2021).
To avoid waiver, a defendant "must raise a claim of error
at the first available opportunity" (citation omitted).
Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert. denied,
574 U.S. 933 (2014).16 Here, the motion judge concluded that the
16 Although our analysis of waiver invokes similar considerations to our analysis of newness under § 33E, namely, whether the defendant could have raised a claim sooner, waiver is a matter distinct from the gatekeeper query. See, e.g., Francis, 485 Mass. 94, 104-106 (defendant raised new and substantial issues satisfying § 33E but had waived claim of error). 24
defendant waived his claim by failing to investigate and raise
the claim prior to his direct appeal. See Mass. R. Crim. P. 30
(c) (2), as appearing in 435 Mass. 1501 (2001).17 We need not
determine whether the motion judge is correct on this point
because, as discussed infra, we conclude that the error created
a substantial risk of a miscarriage of justice.
In assessing whether an error poses a substantial risk of a
miscarriage of justice, we consider the nature of the error, the
strength of the Commonwealth's case against the defendant, and
"whether the error is 'sufficiently significant in the context
of the trial to make plausible an inference that the [jury's]
result might have been otherwise but for the error.'"
Commonwealth v. Smith, 460 Mass. 385, 396 (2011). Additionally,
the United States Constitution requires reviewing courts, at the
very least, to vacate where the defendant has shown, despite
waiver, that the error "led to a fundamentally unfair trial."
Weaver v. Massachusetts, 582 U.S. 286, 304-305 (2017).
17 Rule 30 (c) (2) states:
"All grounds for relief claimed by a defendant under subdivisions (a) and (b) of this rule shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion." 25
In our view, the deprivation of counsel at trial is the
type of structural error that inherently raises serious concerns
whether the trial itself was "an unreliable vehicle for
determining guilt or innocence." Francis, 485 Mass. at 102,
quoting Neder v. United States, 527 U.S. 1, 9 (1999).18 A
defendant whose attorney is unconscious and thereby
constructively absent for significant portions of the
proceedings or during an important part of the proceedings is
denied the right to "require the prosecution's case to survive
the crucible of meaningful adversarial testing," Cronic, 466
U.S. at 656, and the right to "consult with [his or her]
attorney or receive informed guidance from [his or her attorney]
during the course of the trial" (citation omitted), Ragin, 820
F.3d at 620.19 Given the unique nature of absentee counsel, it
18Not every structural error poses a substantial risk of a miscarriage of justice. See, e.g., Francis, 485 Mass. at 107 (no substantial risk despite denial of right to counsel of choice); Commonwealth v. Robinson, 480 Mass. 146, 154-155 (2018) (substantial risk analysis to be used where structural error of denial of right to public trial found).
19In the proceedings below, the motion judge found no substantial risk, relying in part on the fact that the defendant's theory of defense was aligned with that of his codefendant, whose two attorneys were not alleged to have been asleep at any time during trial. This was an erroneous legal conclusion. The right to counsel is a fundamental constitutional right "accorded to every defendant." Commonwealth v. Appleby, 389 Mass. 359, 366, cert. denied, 464 U.S. 941 (1983). While codefendants can consent to being 26
would make little sense to require further proof of specific
prejudice beyond the absence itself to demonstrate a substantial
risk of a miscarriage of justice, where the absence endures for
a significant portion or through an important aspect of the
trial. See Tippins, 77 F.3d at 687 ("Of course, the buried
assumption in our Strickland cases is that counsel is present
and conscious to exercise judgment, calculation and instinct,
for better or worse. But that is an assumption we cannot make
when counsel is unconscious at critical times"). See also id.
("Under these circumstances . . . there is little difference
between saying that prejudice will be presumed and saying that
prejudice has been demonstrated").
Our judicial authority to order a new trial pursuant to
Mass. R. Crim. P. 30 (b) is predicated on the "fundamental
principle" that "the valuable finality of judicial proceedings
must yield to our system's reluctance to countenance significant
individual injustices." Commonwealth v. Brescia, 471 Mass. 381,
388 (2015). Even "meticulous efforts to do justice" can be
represented by the same counsel, see Mass. R. Prof. C. 1.7, as amended, 490 Mass. 1303 (2022), the alignment of common interests or theories of defense is not the harm at issue here. Rather, a defendant whose attorney is asleep is deprived of the ability to "consult with his attorney during the trial" or receive "a lawyer's guidance" during "the trial process." Geders v. United States, 425 U.S. 80, 88-89 (1976). That is not an ill mitigated by the presence of some other attorney, even one advancing a similar defense. 27
frustrated by "extraordinary fact patterns." Id. at 391. Here,
where defense counsel fell asleep repeatedly at trial, and
potentially during at least one crucial witness's testimony, we
do not have confidence that justice was done. Cf. Ragin, 820
F.3d at 624 ("[The defendant] was thrown unarmed into the arena
to face the gladiators without benefit of the assistance of
counsel to which he had an absolute right. As a result, [the
defendant's] trial was not a confrontation between adversaries
in which any reasonable person can have confidence"); Tippins,
77 F.3d at 690 ("In short, there is simply no basis for the hope
that [defense attorney] was functioning as a lawyer during
critical times at trial"); Javor, 724 F.2d at 834 ("Prejudice is
inherent in this case because unconscious or sleeping counsel is
equivalent to no counsel at all").
Conclusion. The defendant constructively was denied the
right to counsel in violation of art. 12, and this denial
created a substantial risk of a miscarriage of justice. The
order denying the defendant's motion for a new trial is
reversed. The defendant's convictions are vacated, the verdicts
are set aside, and the matter is remanded to the Superior Court
for a new trial.
So ordered.