Opinion
13-P-1756
05-08-2015
COMMONWEALTH v. JUSTIN GRADY.
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
After a trial by jury, the defendant, Justin Grady, was found guilty of operating under the influence, possession with intent to sell a class B substance, and possession with intent to sell a class B substance in a school zone. He was acquitted of various firearms charges. On appeal, he contends that (1) he was deprived of his right to confront and cross examine witnesses when a substitute chemist was permitted to testify in lieu of the chemist who conducted the drug analysis; (2) the judge coerced the verdict by giving a premature Tuey-Rodriquez instruction, or in the alternative, compelled deliberation in violation of G. L. c. 234, § 34; and (3) the judge erroneously embellished the Webster charge. See Commonwealth v. Webster, 5 Cush. 295, 320 (1850). We affirm.
See Commonwealth v. Rodriquez, 364 Mass. 87, 98-102 (1973), modifying Commonwealth v. Tuey, 8 Cush. 1 (1851).
The defendant also contends that the amendment to the school zone statute, G. L. c. 94C, § 32J, should be applied retroactively to his case. This argument is foreclosed by Commonwealth v. Thompson, 470 Mass. 1008, 1010 (2014).
Substitute analyst. The drugs in question were analyzed at the State Police crime laboratory in Sudbury, Massachusetts. At the time of trial the examining chemist had retired. The supervising chemist was called to give an independent opinion as to the substance tested. The defendant contends that the substitute chemist's testimony violated his right of confrontation and that his objection with regard to this testimony is preserved.
Counsel filed a motion in limine to exclude the testimony, which was denied, and objected to the questions at trial.
The claim of error here was not properly preserved. At trial, the questions posed to the substitute chemist sought the chemist's independent opinion as to the nature of the substance. The inquiry was proper. See Commonwealth v. Greineder, 464 Mass. 580, 592 (2013). In his responses, the substitute chemist offered admissible independent opinion testimony regarding the composition of the substance. However, the chemist improperly referred to the weight of the substance (a total of four and four-tenths grams) twice in his answer. The weight derived from the nontestifying chemist's report, and was therefore inadmissible on direct examination. Id. at 594 ("One vehicle for ensuring that a criminal defendant realizes the constitutional right of confrontation is our evidentiary rule that only an expert's opinion and not its testimonial hearsay basis is admissible on direct examination").
Defense counsel objected only to the questions posed on direct and redirect examination. Counsel did not object to or move to strike the chemist's responses. Where the question is proper but the answer is not, further objection is required. See Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010); Commonwealth v. Almele, 87 Mass. App. Ct. 218, 224 (2015). We therefore confine our review to whether the erroneous admission of testimony regarding the weight of the substance created a substantial risk of a miscarriage of justice. Commonwealth v. Almele, supra.
The only prejudice argued by the defendant on appeal is the prejudice associated with the testimony that the substance was cocaine. Because that testimony was proper, there is no error We have, however, independently reviewed the record regarding the testimony as to weight.
In closing argument the prosecutor argued, based on the testimony of the police detective who testified as an expert, that cocaine for personal use was normally packaged in three and one-half gram quantities or less. The drugs in this case were packaged in twelve one-half gram to one gram baggies, but weighed four and four-tenths grams in toto. The detective opined that the street value of the drugs once broken down into one-half gram to one gram bags far exceeded the value of a single sale of three and one-half grams (or by extension four and four-tenths grams), and it was therefore unlikely that the drugs were packaged for personal use rather than sale. He offered the opinion that a street dealer would not sell three and one-half grams of powder cocaine in a single transaction once the cocaine had been broken into separate bags, since the dealer could sell the smaller bags separately for far more money. The expert also testified, as did the arresting trooper, that there was an absence of paraphernalia, such as razor blades, straws, or a rolled bill, associated with personal use of cocaine in powder form.
The expert also placed significant weight on the presence of the gun. In light of the acquittal on the gun charge, we have not considered this factor.
In his closing argument, defense counsel argued that the drugs belonged to a passenger in the car. No argument was made to the jury that the drugs were packaged and held for personal use by either the defendant or the passenger. Viewing the case as a whole, and "[c]onsidering the error in the context of the entire trial," we do not "conclude that the error materially influenced the verdict." Commonwealth v. Randolph, 438 Mass. 290, 298 (2002) ("Errors of this magnitude are extraordinary and relief is seldom granted"). The "hearsay testimony did not result in a substantial risk of a miscarriage of justice." See Commonwealth v. Phim, 462 Mass. 470, 479 (2012).
Tuey-Rodriquez charge. On the second day of deliberations at 4:06 P.M., approximately nine hours after the jury had retired, the jury informed the court that it had reached agreement on four out of six indictments, and requested that they be reinstructed regarding possession with intent, reasonable doubt, and moral certainty. The next morning, the jury were reinstructed. They returned to the courtroom on that day at 3:05 P.M., reporting that they were deadlocked. Over the objection of both the Commonwealth and the defense, the judge gave the Tuey-Rodriquez instruction. The jury resumed deliberations at 3:15 P.M. and returned a verdict at 4:20 P.M.
The record does not reflect when or how long the jury was permitted to break for lunch. As a result, approximations of the time spent in deliberation are inclusive of lunch breaks.
The defendant contends that the judge abused her discretion by giving the Tuey-Rodriquez charge prematurely. We discern no abuse of discretion. The decision to give a Tuey-Rodriquez charge lies in the sound discretion of the trial judge. Commonwealth v. Semedo, 456 Mass. 1, 20-21 (2010). The report of deadlock came on the third day of deliberations, after the jury had already returned once for reinstruction. The jury had the case for a total of fifteen hours and twenty-five minutes, six and one-half hours of which had been devoted solely to two charges. Given the length of deliberations, and the report of deadlock, "the defendant has made no showing that the use of the Tuey-Rodriquez charge was premature or coercive." Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 316 (2008). See generally Commonwealth v Jenkins, 416 Mass. 736, 737 (1994).
The defendant's reliance on Commonwealth v. Valliere, 366 Mass. 479, 496 (1974), and Commonwealth v. Semedo, supra, is misplaced, as both of these cases concern trials which were far more factually complex, and in any event, both cases underscore the broad discretion vested in the trial judge.
The defendant also contends that the trial judge violated G. L. c. 234, § 34, when she sent the jury out to continue deliberating without their consent after giving the Tuey-Rodriquez instruction. The defendant's contention is misplaced as "the jury only once advised that they were unable to reach a verdict. The jury's other communications with the judge were questions or requests for further explanation that did not constitute reports of deadlock within the meaning of G. L. c. 234, § 34." Commonwealth v. Parreira, supra.
Reasonable doubt instruction. When requested to define "reasonable doubt" and "moral certainty" the judge reinstructed the jury in accordance with the Webster charge. Over the objection of defense counsel, she then defined the terms "moral" and "certainty" in accordance with the Merriam Webster dictionary as follows: "[m]oral: [r]elating to, dealing with, or capable of making the distinction between right and wrong in conduct. Certainty: a firm, settled belief in the truth of something." The defendant contends that this embellishment of Webster diluted the gravity of the instruction and was error of constitutional magnitude, requiring reversal. We disagree. The reference to a "firm, settled belief in the truth of something" does not violate constitutional norms. See Commonwealth v. Russell, 470 Mass. 464, 470-474 (2015). See also Commonwealth v. Watkins, 433 Mass. 539, 546 (2001). The judge's resort to the definition of "moral" in the context of "moral certainty" was at best an attempt to reiterate the gravity of the jury's task, and at worst did no harm, since the jury was not asked to distinguish between right and wrong. The instructions as a whole, including the reiteration of the complete Webster instruction, fully conveyed to the jury both the correct instruction and the seriousness of the jurors' responsibilities. See Commonwealth v. Russell, supra.
Judgments affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 8, 2015.