Opinion
No. 11–P–1249.
2012-10-15
COMMONWEALTH v. Eric HAWKINS.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of distribution of crack cocaine, a school zone drug violation, and possession of a class B substance, the defendant argues that the school zone evidence was insufficient, and that the judge erred in submitting to the jury unredacted certificates of drug analysis and the complaints. We affirm.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, the evidence and reasonable inferences sufficed to establish that University High School (UHS) is a “secondary school” within the meaning of G.L. c. 94C, § 32J. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). Boston police Detective Timothy Lynch testified that UHS is an alternative public high school run by the city of Boston. Lynch was inside the school in May of 2009, a few months prior to the incident at issue.
At that time, he observed high-school age students present, and he sat in on classes in science, history, and computers as they were being taught. Prior to retirement, Lynch's uncle was employed by the city and taught at UHS. Lynch's testimony sufficed to establish that UHS is a secondary school under the statute. See Commonwealth v. Bell, 442 Mass. 118, 126 (2004); Commonwealth v. Pixley, 77 Mass.App.Ct. 624, 631–632 (2010).
The incident at issue occurred on November 11, 2009. On December 6, 2009, less than one month later, Lynch again visited UHS, and for the same reasons previously described, observed it to be a public high school.
2. Submission of the certificates of drug analysis. For substantially the reasons set forth in the Commonwealth's brief at pages twenty-five through thirty-three, we reject the defendant's claim that his convictions must be reversed because the certificates of drug analysis submitted to the jury contained the notation “Eric Hawkins, et al.” The defendant did not object to his name appearing on the certificates at the time of their admission. Rather, at the close of the evidence, he argued that either his name should be redacted or the name of his codefendant Darius Gibson should be added to the certificates, lest the jury misinterpret the words “et al.” and conclude that the defendant was the ringleader.
While the better course would have been to redact the defendant's name from the certificates, we discern no error in submitting the unredacted certificates to the jury because “the certificates simply told the jury that the defendant was a defendant or suspect, a fact that the jury already knew.” Commonwealth v. Caceres, 413 Mass. 749, 755–756 & n. 9 (1992). See Commonwealth v. Fernandes, 46 Mass.App.Ct. 455, 460–461,S.C., 430 Mass. 517 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000).
Even were we to assume the failure to redact the defendant's name was error, neither prejudice nor a substantial risk of a miscarriage of justice arises from this. The certificates did not characterize the defendant impermissibly. Compare Commonwealth v. Sheline, 391 Mass. 279, 286 (1984). Nor did the prosecutor's closing argument even mention the presence of the defendant's name on the certificate as proof that the defendant was a possessor or dealer of drugs. Rather, to counter the defendant's arguments regarding the chain of custody, the prosecutor pointed briefly to the numbering on the certificate as proof that the substances seized were those analyzed by the chemist.
The defendant requested no limiting instruction regarding the purpose or use of the certificates.
In addition to introducing the drug analysis certificates, the Commonwealth established the nature of the substances through the testimony of Lisa Glazer, a chemist with the Massachusetts Department of Public Health.
3. Submission of the complaints. For substantially the reasons set forth in the Commonwealth's brief at pages thirty-three through thirty-nine, there is no merit to the contention that the judge abused her discretion in sending the complaints to the jury to assist them in considering the various charges against each of the two remaining codefendants. The judge properly instructed the jury that the complaints are not evidence, but accusations and “are merely being sent back with you ... so that you can understand what the charges are against each defendant.”
Judgments affirmed.