Massachusetts Appeals Court Reverses Essex County Convictions as a Result of Sleeping Juror

When a criminal defendant elects to have a jury trial, there is an expectation that the jurors will be attentive during the trial.  But what happens when one of the jurors appears to sleep through the evidence?  The Appeals Court considered the issue this week in Commonwealth v. Luis Gonzalez.

During the deliberations, the jurors sent the judge a question that read: “It has come to the group’s attention that one juror fell asleep during the presentation of evidence and is not willing to accept others’ recollection of what was missed.  Is this grounds to have the juror dismissed?”  The prosecutor requested that the trial judge conduct a voir dire (private questioning of the jurors) to determine whether the sleepy juror had actually slept through the evidence.  The judge refused to conduct a voir dire, reasoning that he would have to ask questions that would deal with the jury’s deliberative process, which is an improper function of a judge. 

The jury was ordered to continue deliberating, and the defendant was later found guilty of armed carjacking, armed robbery, and intimidation of a witness.  The Appeals Court reversed the defendant’s convictions, ruling that it was error for the trial judge to refuse to question the allegedly sleepy juror.  The Appeals Court remanded the case back to the superior court for a new trial.

The Appeals Court said, “[t]he failure to conduct a voir dire in the face of a substantial reason to think a juror is sleeping during trial is reversible error because it prevents the judge from determining the extent of the sleeping…”  The Appeals Court said the trial judge should  have conducted questioning to determine how much of the evidence the allegedly sleeping juror heard and witnessed, but steered clear of the juror’s personal recollection of the substance of the evidence he saw or observed.  The trial judge also told the parties during the trial that he had looked at the jury several times and never noticed the allegedly sleeping juror close his eyes for a significant period of time.  The Appeals Court held that the trial judge’s observations of the jury were insufficient to provide him with the necessary information to properly conclude whether the juror had, in fact, been asleep during the presentation of the evidence.

The Commonwealth tried to save the convictions by arguing that the trial defense attorney had not insisted that the judge conduct a voir dire of the juror, and therefore the defendant had waived his right to appeal on that issue.  The Appeals Court rejected that argument, holding that the defendant’s failure to request a voir dire did not waive the protections that insure “the defendant’s and the public’s right” to a conscious jury.

While is seems obvious that a defendant is entitled to have his case heard by jurors who stay awake during a trial, this case illustrates the problems that surface when there are allegations of inattentive jurors.  It is the duty of the trial judge to ensure, through limited questioning, that all of the jurors stayed awake during the trial.