Commonwealth v. John G. Kenney. ( 2023 )

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.
5