Commonwealth v. The Ngoc Tran

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SJC-11571
COMMONWEALTH vs. THE NGOC TRAN.
Middlesex. December 5, 2014. - April 10, 2015.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Assault and Battery by Means of a Dangerous Weapon.
Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement. Mental
Impairment. Practice, Criminal, Admissions and
confessions, Voluntariness of statement, Instructions to
jury, Duplicative convictions, Jury and jurors, Conduct of
juror, Capital case. Jury and Jurors.
Indictments found and returned in the Superior Court
Department on June 16, 2011.
The cases were tried before David Ricciardone, J.
Stephen Neyman for the defendant.
Michael A. Kaneb, Assistant District Attorney, for the
Commonwealth.
CORDY, J. On April 28, 2011, Son Ngoc Tran was found dead
in her home. The cause of her death was multiple blunt-impact
injuries to her head and brain inflicted by a rubber-headed
2
mallet. Dispatched to the scene to investigate, Lowell police
officers discovered the victim in a pool of blood in her
bathroom and her husband, the defendant, sobbing in the living
room. As one officer approached, the defendant raised his hands
and said, "I killed my wife."
The defendant was charged with murder in the first degree
and assault and battery by means of a dangerous weapon on a
person sixty years of age or older. He filed a motion to
suppress statements he made in an interview with police
investigators shortly after his arrest, which was denied
following an evidentiary hearing. At trial, the Commonwealth
proceeded with respect to the murder charge on theories of
deliberate premeditation and extreme atrocity and cruelty. The
defense was not lack of criminal responsibility, but the
defendant's lack of the mental capacity to specifically intend
his actions or to act in a cruel or atrocious manner. A
Middlesex County jury found the defendant guilty on both
charges.1
On appeal, the defendant claims several errors. We reject
each contention and find no reversible error arising from the
1
The defendant was sentenced consecutively for a term of
life without the possibility of parole on the conviction of
murder in the first degree, and to a sentence of not less than
nine and not more than ten years on the conviction of assault
and battery by means of a dangerous weapon on a person sixty
years of age or older.
3
defendant's various claims. Further, we conclude that there is
no basis for exercising our authority under G. L. c. 278, § 33E,
to reduce the verdict of murder to a lesser degree of guilt or
order a new trial. Accordingly, we affirm the defendant's
convictions.
Background. We recite the facts in the light most
favorable to the Commonwealth, reserving certain details for our
analysis of the issues raised on appeal.
At approximately 7 P.M. on April 28, 2011, the defendant
called Man Le,2 a family friend, and asked her to come to his
house the following day with his son, McKinley Tran. There was
nothing unusual in the defendant's tone of voice, and when Man
asked the defendant why he wanted her to visit he told her,
"It's a secret." The defendant also called McKinley directly
and asked him to come to his house the next day, stating, "You
will find out [why] when you come over."
Sometime after these telephone calls, the defendant entered
the bathroom of the home he shared with the victim in Lowell,
armed with a metal-shafted, rubber-headed hammer. The defendant
proceeded to use the mallet to attack the victim with repeated
blows to her head. After the victim was knocked to the floor,
the defendant continued to strike her with the hammer on her
2
Where appropriate the defendant's family members and
family friend are referred to by their first names given their
common last names.
4
face, skull, neck, arms, and legs until she was dead. The attack
caused fractures to her skull, eye sockets, and cheekbones,
multiple contusions to her brain, and numerous other injuries to
her arms, legs, and extremities. Each of these injuries was
inflicted while the victim was still alive.
At approximately 9 P.M., the defendant telephoned Man a
second time and said, "I killed her dead." He then asked Man to
inform his son of this by telephone. At this point, the
defendant's voice sounded "different," and he instructed Man,
"[C]all the police. Come cuff me." He explained that he
attempted to report the murder at a nearby police station, but
it was closed.
Alerted by Man, McKinley and his wife, Chan Le,3 drove to
the defendant's house and arrived shortly after 9 P.M. On
entering the house, Chan found the defendant sitting on the
living room couch. The defendant was surrounded by several
chairs, which bore hand-lettered signs in both English and
Vietnamese warning of the risk of electric shock. The victim
was found dead on the bathroom floor. There was blood all over
the bathroom, as well as on the defendant's pants, shirt, face,
and hands. The defendant told Chan that he had killed the
victim and asked not to be touched because he was "someone with
guilt."
3
Chan Le is also the niece of Man Le.
5
The defendant had planned to kill himself after killing the
victim. He had written his children a five-page letter, blaming
the victim for treating him poorly and for "heartlessly
shatter[ing] the happiness of [the] family." He wrote, "Now the
time has come for me to leave and take this wife with me. . . ."
The remainder of this letter provided his children with details
concerning the family automobiles and bank accounts. After
killing the victim, the defendant wrapped the exposed ends of an
electrical cord, which he had previously spliced open, around
his two thumbs, and plugged the cord into an electrical outlet.
He received minor burns to his skin.
Lowell police Officer Philip Valliant and his partner were
dispatched to the scene at approximately 9:30 P.M. They found
the defendant, still seated on the living room couch, sobbing.
When Officer Valliant approached the defendant, he raised his
hands and told Officer Valliant, "I killed my wife. I killed my
wife." The defendant was placed under arrest and instructed to
walk to the kitchen and sit while the officers awaited the
arrival of additional police officers and medical personnel.
The defendant complied with these instructions and appeared
"calm" and "rational."
The defendant insisted that the victim did nothing to
provoke him on the night of the killing. Rather, he admitted to
killing her out of a deep hostility that developed over the
6
course of their long and unhappy marriage. The victim and the
defendant, both immigrants from Vietnam, were married for more
than thirty years at the time of the killing. Throughout their
marriage, the defendant verbally and mentally abused the victim.
In the weeks leading up to the killing, the defendant and the
victim faced particular financial strain. Moreover, the
defendant was convinced that the victim was "poison[ing] the
minds of [his] children" against him and blamed her for causing
him "endless suffering and anguish." On the day of the killing,
the victim had announced to the defendant, their children, and
her friend that she was leaving him.
Discussion. 1. Miranda waiver. The Commonwealth
presented evidence at trial that the defendant, after being
transported to the Lowell police station, agreed to speak with
Lowell police Sergeant Joseph Murray and State police Trooper
Erik Gagnon. Sergeant Murray began advising the defendant of
the Miranda rights by reading from the Lowell police
department's preprinted Miranda advisement and waiver form.
Although the defendant had told the officers that he understood
them and read and spoke English, at some point it became
apparent that the defendant, a native Vietnamese speaker, had
some difficulty responding to Sergeant Murray's questions in
English. Sergeant Murray asked the defendant if he would like
the assistance of a Vietnamese translator, to which the
7
defendant indicated he would. At this point, the interview
stopped. After a series of telephone calls, Sergeant Murray was
able to obtain translation assistance from two Boston police
officers, Diep Nguyen and Hoang Nguyen.
With the assistance of both a written Miranda advisement
printed in Vietnamese and a running translation provided by the
Boston police officers, the defendant was provided with complete
Miranda warnings both in English and Vietnamese. After Sergeant
Murray read each of the enumerated warnings in English, the two
Boston police officers asked the defendant, who was consulting
the written Vietnamese translation, to confirm that he
understood Sergeant Murray's warning, either by asking the
defendant to explain the warning to them in Vietnamese or by
restating the warning in Vietnamese and asking if the defendant
understood. On cross-examination at trial, Officer Diep Nguyen
acknowledged that these translations from English to Vietnamese
were "probably . . . not word for word."4 After receiving his
Miranda warnings, the defendant signed the Vietnamese language
4
At trial, the only discussion of the distinctions between
the English and Vietnamese advisements was on cross-examination
of Boston police Officer Diep Nguyen. For example, Officer
Nguyen testified that the English on the Lowell police
department form states, "You have the right to remain silent,"
whereas the translated Vietnamese form states, "You have the
right to remain silent, which means you don't have to answer any
questions."
8
form, which indicated that he understood his rights, and told
the officers that he would speak with them.
In the approximately forty-minute recorded interview that
followed, the defendant gave Sergeant Murray and Trooper Gagnon
a detailed account of the killing. He again admitted to killing
his wife by hitting her in the head "[m]any times" with a
hammer. He explained to the officers how he stopped his attack
at one point to muffle the victim's cries with toilet paper, and
then resumed. The defendant explained to the officers how many
years of unhappiness led him to "plan[] to kill [the victim] and
then commit suicide."
The judge instructed the jury, both when the recording was
played at trial and in his final charge, that they could
consider the defendant's statements only if the Commonwealth had
proved the voluntariness of the statements beyond a reasonable
doubt. The judge did not instruct the jury that they should
specifically consider whether the defendant's Miranda waiver was
valid. As the defendant did not request such an instruction,
and did not object to the form of the humane practice
instruction the judge issued, we review this claim to determine
whether any error created a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Sunahara, 455 Mass.
832, 836 (2010).
9
The defendant contends that it was error for the jury not
to be explicitly instructed that when considering whether to
accept the defendant's statements as evidence under the humane
practice rule, see Commonwealth v. Tavares, 385 Mass. 140, 149-
153, cert. denied, 457 U.S. 1137 (1982), they were entitled to
evaluate the validity of his Miranda waiver as a factor. In
Tavares, we explained that, "[o]ur humane practice requires that
when statements amounting to a confession are offered in
evidence, the question whether they were voluntary is to be
decided at a preliminary hearing in the absence of the jury.
. . . If the judge decides that they are admissible, he should
then instruct the jury not to consider the confession if, upon
the whole evidence in the case, they are satisfied that it was
not the voluntary act of the defendant" (citations and
quotations omitted). Id. at 149-150. The defendant grounds his
argument in a footnote in Tavares in which we explained that
evidence bearing on whether Miranda warnings were properly given
and waived is relevant to the determination whether a
defendant's confession was voluntary and therefore may be
considered by the jury when making its over-all evaluation. Id.
at 153 n.19. We find the defendant's argument unpersuasive.
In Commonwealth v. Cryer, 426 Mass. 562, 572 (1998), we
rejected the argument that a judge is obligated to instruct the
jury on specific factors they should consider when assessing
10
voluntariness. Moreover, "[i]n determining the propriety of a
jury instruction, we must consider the instruction in the
context in which it was delivered, in order to determine its
probable effect on the jury's understanding of their function."
Id. Here, the judge, both when the recording of the interview
was played and in his final charge, detailed various factors the
jury could consider in their determination whether the
defendant's statements were voluntary, including "the nature of
the conversations" the defendant had with the police, as well as
whether the defendant was "confused to any extent" at the time
of the interview. Additionally, the evidence presented at
trial, especially defense counsel's cross-examination of Officer
Diep Nguyen, "made clear to the jury what factors they should
consider in weighing whether the defendant's statements were
voluntary." Id. Further, the judge instructed the jury
repeatedly to consider the "totality of the surrounding
circumstances." These instructions exceeded the minimum
required under Cryer, and provided sufficient direction for a
reasonable jury to disregard the defendant's statements if they
had a reasonable doubt about the voluntariness of his
statements.
The defendant's argument rests on his contention that an
instruction directing the jury to consider the validity of his
Miranda waiver would have led them to consider that the
11
Vietnamese translation of the Miranda advisements did not track
the English advisements "word for word," thereby casting real
doubt on the voluntariness of his statement. As an initial
matter, we note that the judge found that the defendant
understood his Miranda rights prior to making his statement to
the police, and we discern no error in this finding. In any
event, while "[t]he four warnings Miranda [v. Arizona, 384 U.S.
436, 444-445 (1966),] requires are invariable," the United
States Supreme Court "has not dictated the words in which the
essential information must be conveyed." Florida v. Powell, 559
U.S. 50, 60 (2010). See California v. Prysock, 453 U.S. 355,
359 (1981) ("no talismanic incantation" required to satisfy
Miranda's strictures). "[R]eviewing courts are not required to
examine the words employed 'as if construing a will or defining
the terms of an easement. The inquiry is simply whether the
warnings reasonably "conve[y] to [a suspect] his rights as
required by Miranda."'" Powell, supra at 60, quoting Duckworth
v. Eagan, 492 U.S. 195, 203 (1989). See Commonwealth v. Bins,
465 Mass. 348, 358 (2013) ("No prescribed set of words must be
used to provide the [Miranda] warnings . . ." [citation
omitted]).
There is nothing to indicate that this standard was not
satisfied here, as the four essential Miranda warnings were
12
reasonably conveyed to the defendant in his native language.5
The sufficiency of this translation is not diminished by the
fact that the precise Vietnamese words employed did not
completely mirror their English counterparts. See Bins, 465
Mass. at 362-363 (waiver voluntary where Portuguese translation
that varied from precise English advisement still adequately
conveyed required warnings). Here, no warning was omitted from
either recitation and none was "misstated to the point of being
contradictory." Id. at 363. Where the defendant has not shown
a substantive deficiency in the warnings he received, and the
four required warnings were reasonably conveyed in the
defendant's native language before he agreed to speak with the
police, the fact that the Vietnamese translation did not track
the English warnings "word for word" is of no legal consequence.
The totality of the circumstances demonstrates that the
defendant was advised of his rights in a meaningful way and
voluntarily waived them, and, in any event, the judge's
instructions on the issue of voluntariness did not give rise to
a substantial likelihood of a miscarriage of justice.6
5
Specifically, the defendant was advised that he had a
right to remain silent, anything he said may be used against
him, he had a right to speak to an attorney, and if he could not
afford an attorney one would be appointed for him.
6
Although we conclude that there was no substantial
likelihood of a miscarriage of justice in this case, a judge's
humane practice instruction should ordinarily advise the jury
13
2. Mental impairment instruction. The defendant also
argues that the judge provided deficient instructions regarding
his defense of mental impairment. More specifically, he
contends that the instructions failed to define "mental
impairment," and failed to sufficiently emphasize the
Commonwealth's burden of proof.7 Yet, the model jury
instructions on homicide do not include a definition of the term
"mental impairment." We have also not required or offered such
a definition. "'All that we have ever required' be said to
juries about the effect of mental impairment on a defendant's
intent or knowledge is 'satisfied by a simple instruction that
the jury may consider credible evidence' of the mental
impairment 'in deciding whether the Commonwealth had met its
that among the many factors they may consider in determining
whether a statement allegedly made by the defendant is voluntary
is whether the Miranda warnings were given to and understood by
the defendant.
7
In his brief, the defendant quotes extensively from the
model jury instruction on lack of criminal responsibility, yet
he does not contend that the judge should have given such an
instruction. See Commonwealth v. Urrea, 443 Mass. 530, 535
(2005) (explaining distinction between mental impairment
doctrine and test regarding lack of criminal responsibility).
Although some of the defense expert's testimony arguably
supported a defense of lack of criminal responsibility, such an
instruction was not required, as it was not requested. See
Commonwealth v. Johnson, 422 Mass. 420, 424 (1996) ("Such an
instruction must be given if requested and supported by the
evidence"). Moreover, the defendant did not argue lack of
criminal responsibility in his closing argument. Finally, the
judge specifically asked defense counsel to confirm that she was
"not asking for an instruction on criminal responsibility," to
which she responded in the affirmative.
14
burden of proving the defendant's state of mind beyond a
reasonable doubt.'" Commonwealth v. Mercado, 456 Mass. 198, 207
(2010), quoting Commonwealth v. Sires, 413 Mass. 292, 300
(1992).
Here, four times during his final charge, the judge
instructed the jury that they could consider "any credible
evidence" that the defendant suffered from a mental impairment
in determining whether the charges had been adequately proven
against him.8 Twice, the judge also reminded the jury of the
Commonwealth's burden of proof, which he discussed at length in
the general portion of his instructions. These instructions
mirrored the model jury instructions on homicide, as well as the
instructions requested by the defendant, and they appropriately
explained the relationship between the Commonwealth's burden of
proof and the defendant's defense of mental impairment.
Moreover, in assessing the adequacy of the language
employed in a jury charge, "we consider the jury charge as a
whole, looking for the interpretation a reasonable juror would
place on the judge's words" (citation and quotation omitted).
Commonwealth v. Harbin, 435 Mass. 654, 658 (2002). Here, we
8
The judge gave this instruction once when addressing the
intent required for a conviction of murder in the first degree
on a theory of deliberate premeditation, twice when addressing
the intent required for a conviction of murder on a theory of
extreme atrocity or cruelty, and once more when addressing the
intent required for a conviction of murder in the second degree.
15
cannot say that the term "mental impairment" is so obscure that
a reasonable jury would be unable to rely on the usual and
accepted meanings of these words to determine whether the
defendant was capable of informing the required intent.
Further, the jury heard testimony from two expert witnesses
regarding the defendant's claim of mental impairment and his
capacity to intend his actions at the time of the murder.
Accordingly, it was not error for the judge to leave the term
"mental impairment" undefined.
Last, the judge was correct to abstain from stating that
the Commonwealth must prove beyond a reasonable doubt that the
defendant was not mentally impaired. Evidence of impairment is
a "mere subsidiary fact[] that the jury consider in sifting the
circumstantial evidence as to [the defendant's] mental state."
Mercado, 456 Mass. at 207, quoting Commonwealth v. Waite, 422
Mass. 792, 805 (1996). There is "no requirement that the jury
find these subsidiary facts and inferences beyond a reasonable
doubt." Waite, supra at 806. In sum, the judge's instruction
on mental impairment, particularly in light of the substantial
evidence offered to demonstrate the defendant's criminal intent,
did not give rise to a substantial likelihood of a miscarriage
of justice.
3. Duplicative convictions. The defendant additionally
contends that his convictions of murder and assault and battery
16
by means of a dangerous weapon on a person sixty years of age or
older were duplicative. The defendant's argument relies on a
theory that convictions are duplicative if they arise out of a
single criminal episode. We considered and rejected this theory
in Commonwealth v. Vick, 454 Mass. 418, 430-436 (2009), and the
defendant's reliance on pre-Vick case law is misplaced. In
Vick, the defendant was convicted of, among other things,
assault and battery by means of a dangerous weapon causing
serious bodily injury and armed assault with intent to murder.
Id. at 419. He argued that "the two offenses were so closely
related in fact as to constitute in substance but one crime."
Id. at 430-431. There, while recognizing that a series of cases
provided some support for the view on which this argument
rested, see id. at 433-434, we ultimately rejected this theory
of merger and "affirmed the traditional elements-based
approach." Commonwealth v. McCoy, 456 Mass. 838, 853 (2010).
See Vick, supra at 431. Moreover, in Commonwealth v. Anderson,
461 Mass. 616, 632-634, cert. denied, 133 S. Ct. 433 (2012), we
invoked Vick to explicitly overrule Commonwealth v. Santos, 440
Mass. 281, 293-294 (2003), a case on which the defendant's brief
and theory of merger substantially relies.
In Vick, 454 Mass. at 431, we explained, "[an] elements-
based approach remains the standard for determining whether
multiple convictions stemming from one criminal transaction are
17
duplicative." See Morey v. Commonwealth, 108 Mass. 433, 434-436
(1871). "As long as each offense requires proof of an
additional element that the other does not, neither crime is a
lesser-included offense of the other, and convictions on both
are deemed to have been authorized by the Legislature and hence
not [duplicative]" (citation and quotation omitted). Vick,
supra at 431.9 See Commonwealth v. Torres, 468 Mass. 286, 288-
289 (2014) (following Vick); Commonwealth v. Johnson, 461 Mass.
44, 52 (2011) (same).10
As the defendant recognizes, under an elements-based
approach, each of his convictions requires proof of an element
not required by the other: murder requires, among other things,
the death of the victim; the assault and battery charge requires
9
As explained in Commonwealth v. Vick, "[t]he question
whether two offenses are 'so closely related in fact as to
constitute in substance but a single crime' . . . becomes
pertinent in a single criminal proceeding where one crime is a
lesser included offense of the other, or where there are
multiple counts of the same offense." 454 Mass. 418, 435
(2009), quoting Commonwealth v. St. Pierre, 377 Mass. 650, 662-
663 (1979).
10
A distinct merger rule is available in felony-murder
cases. See Commonwealth v. Gunter, 427 Mass. 259, 275-276
(1998), S.C., 456 Mass. 1017 (2010), and S.C., 459 Mass. 480,
cert. denied, 132 S. Ct. 218 (2011); Commonwealth v. Berry, 420
Mass. 95, 113-114 (1995). The defendant was not convicted of
murder on a felony-murder theory, and "[w]e decline to
categorize this case as one of the 'rare circumstances where the
purposes of our lesser included offense jurisprudence are not
served by a strict application of the [elements-based]
doctrine." Commonwealth v. Torres, 468 Mass. 286, 290 n.5
(2014), quoting Commonwealth v. Porro, 458 Mass. 526, 532
(2010).
18
a touching of the victim with a deadly weapon and that the
victim was sixty years of age or older, neither of which is
required to prove murder under any theory. See G. L. c. 265
§ 15A (a); Commonwealth v. Campbell, 375 Mass. 308, 312 (1978).
"Neither crime is a lesser included offense of the other, and,
therefore, the Legislature has authorized punishment for both."
Vick, 454 Mass. at 433. See Morey, 108 Mass. at 434-436.
Accordingly, the defendant's convictions and sentences were not
duplicative and did not result in a substantial likelihood of a
miscarriage of justice.
4. Sleeping juror. The Commonwealth noticed that one of
the jurors appeared to be sleeping during presentation of the
video recording of the defendant's police interview, and the
judge noticed that this same juror appeared to be sleeping
during a portion of the jury charge. The judge suggested
potential remedies at sidebar prior to the jury's deliberation,
and the defendant's trial counsel, deferring to the judge,
requested that the juror be made an alternate. The judge
instructed the clerk to do so. On appeal, the defendant argues
that this decision violated the statute concerning alternate
jurors, which provides that "the court shall direct the clerk to
place the names of all of the available jurors except the
foreperson into a box . . . and to select at random the names of
the appropriate number of jurors necessary to reduce the jury to
19
the proper number of members required for deliberation in the
particular case." G. L. c. 234A, § 68.
This argument is unavailing. While the nonrandom selection
of the juror as an alternate was irregular, the applicable
statute specifically states that such an irregularity "shall not
be sufficient . . . to set aside a verdict . . . unless the
objecting party has been specially injured or prejudiced
thereby." G. L. c. 234A, § 74. While it may have been better
practice for the judge to conduct a hearing to determine
definitively whether the juror had been asleep and to what
extent the juror was no longer capable of deliberating, see
Commonwealth v. McGhee, 470 Mass. 638, 643-646 (2015),11 the
11
On the second day of evidence, the Commonwealth notified
the judge that the juror in question had closed his eyes "for a
matter of just [a] couple of seconds" while viewing the video
recording of the defendant's police interview. Defense counsel
agreed with the Commonwealth's assessment. At the close of the
trial, the judge told counsel that the same juror appeared to
have been sleeping during a part of his jury charge. He stated
that the juror had "the appearance that he was falling asleep"
during "some key portions," but noted that he "can't be in [the
juror's] head and make the absolute conclusion that [the juror]
was in fact sleeping, -- he could have had his eyes closed and
still listened." In Commonwealth v. McGhee, 470 Mass. 638, 644
(2015), we explained that "[i]f a judge reaches a preliminary
conclusion that information about a juror's inattention is
reliable, the judge must take further steps to determine the
appropriate intervention. Typically, the next step is to
conduct a voir dire of the potentially inattentive juror."
However, "not every complaint regarding juror attentiveness
requires a voir dire," Commonwealth v. Beneche, 458 Mass. 61, 78
(2010), and "[j]udges have substantial discretion in this area."
McGhee, supra at 644. Here, the judge had a reliable basis to
believe the juror had been asleep, and the lack of such a
20
defendant did not object at trial, and there is no indication
that the designation of the sleeping juror as an alternate
amounted to a substantial likelihood of a miscarriage of
justice. Conversely, "[i]t is obviously not in the interest of
justice to have a juror deliberate who has not heard the
evidence or parts of the judge's charge." Commonwealth v.
Stokes, 440 Mass. 741, 751 (2004), S.C., 460 Mass. 311 (2011),
(proper for judge to dismiss "dozing" juror to prevent
participation in deliberations); United States v. Bradley, 173
F.3d 225, 230 (3d Cir.), cert. denied, 528 U.S. 963 (1999)
(judge "had a legitimate basis to dismiss [snoring juror] . . .
[and] had sufficient information to support the dismissal and so
did not have to voir dire her").
The defendant argues that the judge's action effectively
discharged the sleeping juror. We disagree, as an alternate
remains available to replace a deliberating juror should the
need arise. Nevertheless, "[a] judicial observation that a
juror is asleep . . . requires prompt judicial intervention,"
and "[t]he judge has discretion regarding the nature of the
intervention" (citations and quotations omitted). Commonwealth
v. Beneche, 458 Mass. 61, 78 (2010). "The burden is on the
hearing is most problematic in cases in which a judge, despite
being alerted to a significant problem of jury attentiveness,
takes no action. See id. at 645-646; Commonwealth v. Braun, 74
Mass. App. Ct. 904, 905-906 (2009). Such was not the case here,
as the juror did not deliberate.
21
defendant to show that the judge's decision in the matter was
'arbitrary or unreasonable.'" Id., quoting Commonwealth v.
Brown, 364 Mass. 471, 476 (1973). In the instant case, the
defendant has presented no evidence to meet this burden. In
fact, he takes no position on whether the juror should have been
dismissed or permitted to deliberate. He only takes issue with
the juror being given the label of "alternate." We cannot say,
given that the judge and both parties observed that the juror
appeared to be asleep at two distinct and key portions of the
trial, that the judge's decision was "arbitrary or
unreasonable," see Brown, supra, or that he abused his
discretion in designating the juror as an alternate. See
Beneche, supra. Accordingly, where the judge had both
discretion in choosing the remedy best suited to address the
situation and ample grounds to justify action, designating the
sleeping juror as an alternate did not amount to a substantial
likelihood of a miscarriage of justice.
5. G. L. c. 278, § 33E. We have reviewed the entire
record of the defendant's trial pursuant to G. L. c. 278, § 33E,
and we find no reason to exercise our authority to reduce the
jury's verdict of murder to a lesser degree of guilt or order a
new trial.
Judgments affirmed.