JUROR FALLING ASLEEP NOT O.K.

In Commonwealth v. Gonzalez,the Court of Appeals Court reversed the defendant’s convictions of armed carjacking, armed robbery, and intimidation of a witness because the judge failed to conduct a voir dire of the deliberating jury after learning that one of the jurors may have fallen  asleep during the trial. The judge stated that “apparently assuming [that] he knew which juror the question [from the jury] referred to,” that he had looked at the jury many times during the trial and that the person he had in mind had seemed alert and “‘never had his eyes shut for a significant period of time.’” On appeal the Court ruled the judge’s response was inadequate, stating, “‘[A] judge’s receipt of reliable information’ that a juror was asleep during evidence requires a voir dire of the jurors[.]  The Court explained that “[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 and so from having the ability to properly exercise his or her discretion in handling the issue.” Indeed, noted the Court, “[i]n Dancy, we indicated that a sleeping juror was ‘a structural error … that so infringes on a defendant’s right to the basic components of a fair trial that it can never be considered harmless.’”

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