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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] elementsbased 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.