Opinion
16-P-256
04-24-2017
COMMONWEALTH v. Yohan GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of possession with intent to distribute heroin and possession with intent to distribute marijuana. On appeal, he claims the judge erred in overruling his for cause challenge to juror number forty-three, as well as his claim that there was insufficient evidence of his intent to distribute the illegal drugs. We affirm.
The defendant was acquitted of unlawfully possessing a firearm without a FID card.
1. Juror challenge. The defendant contends that the judge erred in denying his for cause challenge of juror number forty-three, forcing him to use a peremptory challenge, and thereby depriving him of a peremptory challenge for a juror later to be sat. We give great deference to the judge in reviewing his determination of the impartiality of a selected juror. See Commonwealth v. Philbrook, 475 Mass. 20, 30 (2016). We therefore review for an abuse of discretion or error of law. See Commonwealth v. Ruell, 459 Mass. 126, 136 (2011).
"[I]f there is reason to suspect that a juror or jurors are not or may not be indifferent within the meaning of [ G. L. c. 234, § 28 ], the judge must inquire fully before declaring jurors indifferent and allowing them to be seated." Commonwealth v. Auguste, 414 Mass. 51, 57 (1992), quoting from Commonwealth v. Horton, 376 Mass. 395 (1978). "[I]f it appears that a juror may not stand indifferent (due to factors extraneous to the case, such as community attitudes or bias for or against certain classes of persons), ‘the court shall ... examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters which may, as aforesaid, cause a decision or decisions to be made in whole or in part upon issues extraneous to the issues in the case.’ " Id. at 53, quoting from G. L. c. 234, § 28.
During jury selection, juror number forty-three responded in the affirmative to a panel question regarding the particular charges, and whether it would be hard for that juror to be fair to both parties due to the specified charges. During individual voir dire, the judge asked juror number forty-three about her answer to the panel question, and she informed the court that she was "very anti-gun." Due to the nature of the charges, the judge further inquired about juror number forty-three's feelings against guns, and her thoughts on her bias influencing her decision in the case. Individually, the judge asked juror number forty-three:
THE COURT : "Okay. [Juror number forty-three], you do remember that the charges in this case include possession of an unlawful gun and possession of certain drugs. Is there anything about those sorts of charges that makes you think it would be hard for you to be fair as a juror?"
THE JUROR : "Possibly."
THE COURT : "I'm sorry. Possibly?"
THE JUROR : "Possibly."
THE COURT : "What do you mean?"
THE JUROR : "I'm very anti-gun."
In consideration of this response, the judge inquired further:
THE COURT : "Okay. Well, understanding that you have strong feelings against guns, again, the question before the jury is not whether possession of guns is a good thing or a bad thing. We have certain laws. I'll tell the jury what those laws are. And of course you'll listen to the evidence. And the question in the case is whether or not the prosecution proves beyond a reasonable doubt that the defendant violated such a law. And to make that decision, again, that's a more narrow decision, as you can understand, I'm sure, than a larger policy decision about the role of guns in our society. So, again, your strong feelings about the policy, would that in some way tilt you in one direction or another as a juror in deciding this case?"
THE JUROR : "I don't think so."
Given the situation, the judge gave the defendant's counsel a chance to inquire further through voir dire, in which counsel questioned juror number forty-three in what the judge considered to "border[ ] on cross examination." The juror answered that she would "try really hard" in response to defense counsel's line of questioning, and the judge told defense counsel that "[t]he juror said that she would do her best. And more than that, our case law does not require it of jurors," and denied counsel's challenge for cause.
"Where, as here, the judge, who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion." Ruell, supra at 137, quoting from Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978). The trial judge was in the best position to assess juror number forty-three's answers and demeanor, and we find no abuse of his discretion to deny the defendant's challenge for cause.
Due to the judge's denial of the defendant's for cause challenge, the defendant exercised a preemptory challenge, one of the six he was given, and juror number forty-three did not sit on the jury for this case. Also, the defendant's assertion, that had the judge granted the for cause challenge he would have had the correct number of preemptory challenges left to be able to challenge the final juror sat, lacks merit. The defendant makes no showing of prejudice relative to the last juror chosen for his jury.
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2. Sufficiency of the evidence. The defendant also claims the Commonwealth failed to present sufficient evidence to satisfy the intent elements of both possession with intent to distribute charges. We disagree. In evaluating the sufficiency of evidence, we review the evidence in the light most favorable to the Commonwealth to determine if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
The defendant does not contest that there was enough evidence presented to prove he possessed the drugs, but rather, that there was insufficient evidence presented that he intended to distribute them. Although the Commonwealth did not present direct evidence of an intent to distribute the drugs, proof of "intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence." Commonwealth v. Eppich, 342 Mass. 487, 493 (1961). See Commonwealth v. Dellamano, 393 Mass. 132, 136-137 (1984).
The packaging of the drugs, the late hour, the revolver, the bullet hole in the car door, and the suspicious nature of the defendant's returning to the vehicle after telling the officer he would not be back until around 7:00 a.m., and the absence of any paraphernalia indicating an intent to consume the drugs for personal use, all supported the jury's verdict. See Commonwealth v. Dessources, 74 Mass. App. Ct. 232, 239 (2009) (sixteen bags of marijuana with no paraphernalia for use "as would be expected were the items for personal consumption rather than for distribution"). In other words, from all the evidence, and the reasonable inferences drawn therefrom, the jury could have rationally concluded that the defendant possessed the drugs with an intent to distribute them. See Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (inference drawn from circumstantial evidence "need only be reasonable and possible; it need not be necessary or inescapable").
Judgments affirmed.