Opinion
15-P-991
04-27-2016
COMMONWEALTH v. KAREN M. GIROUARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from her conviction of possession of a class A controlled substance (heroin) with intent to distribute, in violation of G. L. c. 94C, § 32(a), the defendant challenges the sufficiency of the evidence, and claims error in (i) the admission of testimony by a police officer on the ultimate question of her guilt and (ii) the omission of instruction to the jury on the meaning of "possession." We conclude that the evidence was sufficient, but agree that the admission of the officer's testimony on redirect and the deficient instruction give rise to a substantial risk of a miscarriage of justice.
1. Sufficiency of the evidence. As the defendant observes, Norwood police Detective David Eysie testified on redirect that "[t]here were drugs being distributed from [the defendant's] house" and that "Karen Girouard" was the person "distributing those drugs." Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), a rational juror could conclude based on Detective Eysie's testimony that the defendant was distributing drugs from the house in which the police found heroin, a scale, cut baggies, and a "cuff sheet," and arrested the defendant. See Commonwealth v. Sepheus, 468 Mass. 160, 169 (2014). The other circumstantial evidence recited by the Commonwealth in its brief, including the defendant's failure to open the door (evidencing consciousness of guilt), and the fact that the defendant was the only person living at the house, corroborates the conclusion that the defendant exerted dominion and control over the heroin found in her house at the time of her arrest.
For purposes of testing the sufficiency of the evidence, we consider all evidence admitted at trial, including evidence that was improperly admitted. See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014).
In order to distribute drugs, of course, it would be necessary for the defendant to possess them.
2. Jury instructions. After declining the defendant's request for instruction on mere presence, the judge provided no instruction on the meaning of "possession" and, specifically, constructive possession (the theory on which the Commonwealth proceeded at trial). Contrary to the defendant's assertion on appeal, the defendant's objections were directed solely to the judge's refusal to give the requested "mere presence" instruction, and made no mention of the judge's omission of instruction on the meaning of possession. We accordingly review to determine if there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
The key question of the case was whether the defendant exercised dominion and control over the heroin found in her home. But the jury were not instructed to assess that question, or how it would affect the question of the defendant's possession of the heroin. The deficient instruction accordingly deprived the jury of the capacity to assess correctly the key question of the case.
3. Testimony on ultimate issue. As observed supra, Detective Eysie testified on redirect that the defendant was distributing drugs from her home. The Commonwealth concedes that the testimony was improper, but observes that the defendant did not object when the testimony was given. Viewed in combination with the deficient jury instructions discussed in the previous section, however, we have no difficulty concluding that the combined errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985). Cf. Commonwealth v. Sepheus, supra at 172.
Judgment reversed.
Verdict set aside.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 27, 2016.