Opinion
No. 11–P–186.
2012-06-11
COMMONWEALTH v. Xavier MARCANO–ALICEA.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in District Court, the defendant was convicted of distribution of a class A substance (heroin), G.L. c. 94C, § 32( a ), and a related school zone violation, G.L. c. 94C, § 32J. We affirm.
Trial in absentia. The defendant did not show up on the second day of trial. The judge sought an explanation for the defendant's absence, but defense counsel was unable to provide one (except to note that the defendant had to come from Rhode Island, where he lived). The judge informed counsel that she was “willing to wait a modest amount of time to see if [the defendant's] simply delayed and is on the way.... However, if [the defendant] is voluntarily absenting himself from his trial, we can proceed with the trial in his absence.” Defense counsel responded: “Understandable, your honor.”
Forty to forty-five minutes after the trial was scheduled to resume that day, the judge asked defense counsel whether he had heard from his client “being en route.” Defense counsel responded, “No, your Honor. I haven't heard from him.” The judge then resumed the trial with the defendant absent.
The case went to the jury three hours later. At the charge conference, the judge indicated her intent to instruct the jury not to draw any inferences from the defendant's absence, and she asked defense counsel, “Is that okay?” Defense counsel responded, “That's fine, Your Honor.” The judge then instructed the jury that they “are not to speculate about [the defendant's absence] whatsoever,” and that they may not “factor that into [their] decision making at all.” No objection to this instruction was lodged.
The record reflects that the judge made subsequent efforts to try to ensure that the defendant had not gone to the wrong courtroom. At one point, she at sidebar instructed someone (presumably a court officer) to go into the hallway and “every courtroom” to call out for the defendant. At a later point in the proceedings, in an apparent reference to her having directed someone to see if the defendant had gone to the wrong courtroom, the judge stated for the record, “I don't think that was productive, but I'm going to continue to do it in the event he's in the wrong session.”
Although a defendant has a fundamental right to be present at trial, a defendant can waive that right by choosing not to attend. See Commonwealth v. Muckle, 59 Mass.App.Ct. 631, 639 (2003); Mass.R.Crim.P. 18(a)(1), 378 Mass. 887 (1979). Muckle lays out a specific protocol that trial judges are to follow in the event that “a defendant fails to appear midtrial.” 59 Mass.App.Ct. at 639. This protocol is designed to insure that a judge has taken (and documented) adequate steps to investigate whether the defendant's absence was “voluntary and without cause,” and that the jury are appropriately instructed regarding the defendant's absence. The Commonwealth acknowledges that the judge did not adhere to the steps laid out in Muckle. Because the defendant did not preserve any claim that the judge erred in this regard, the question before us is whether the judge's course of conduct created a substantial risk of a miscarriage of justice.
Neither before the case went to the jury, nor since, has the defendant offered any explanation as to why he was absent.
Thus, even though the judge's efforts to investigate and document why the defendant was absent fell short of the Muckle standard, from all that appears on the current record, the defendant voluntarily waived his right to be present. In other words, the defendant cannot show on the current record that the judge's decision to let the trial resume deprived him of his right to be present.
To the extent the defendant wanted to argue that the judge's decision in fact deprived him of his right to attend the trial, he could have sought to develop the facts through a motion for new trial.
The judge accurately instructed the jury that they could not draw any inference from the defendant's absence, and she did so within three hours of the time the jury first could have noticed that the defendant was absent.
The only error that the defendant can claim relates to the failure of the judge—at the time she let the trial move forward in the defendant's absence—to “give a neutral instruction to the jury to the effect that the defendant may not be present for the remainder of the trial, that the trial will continue, and that the defendant will continue to be represented by his attorney.” Muckle, supra at 640. The defendant has not demonstrated that such an error could result in a substantial risk of a miscarriage of justice. In this regard, we note that the evidence against the defendant was quite robust. This case involved a drug sale to an undercover police officer, and the defendant was arrested at the scene with the buy money found on him.
The Commonwealth had requested a consciousness of guilt instruction. The judge concluded that the Commonwealth had not established sufficient facts to warrant such an instruction. As Muckle itself recognizes, whether the jury has heard sufficient evidence to warrant such an instruction is a separate inquiry from whether the trial can move forward in the defendant's absence. 59 Mass.App.Ct. at 640.
Sufficiency of the evidence on the school zone violation. The school zone violation was based on the Commonwealth's claim that the retail store in which the drug sale took place was within a thousand feet of a fence that separated a local public high school's athletic field from the street. Applying the familiar test set forth in Commonwealth v. Latimore, 378 Mass. 671 (1979), we conclude that there was sufficient evidence that the field in question was actively used by a public high school.
The boundary of the field therefore provided a proper measuring point for establishing the school zone. See Commonwealth v. Johnson, 53 Mass.App.Ct. 732, 734–735 (2002). There was also sufficient evidence that the front of the store in which the drug sale took place was within a thousand feet of the field in question.
A police officer testified that the fence in question “separates the baseball fields at the school property from that set of ramps and Route 1,” that the school was a “public high school,” that the school is “still active,” and that “[t]hey're still playing baseball in the fields there.”
All that remains of the defendant's sufficiency argument is his claim that, as matter of law, the Commonwealth had to prove that the specific location of the drug sale within the store was within a thousand feet of the field.
There was testimony that the distance between the field and the two corners of the front of the store measured 833 feet and 11 inches, and 895 feet and 2 inches, respectively. The defendant has raised no argument of any substance that the actual measurements were done in error. Of course, the Commonwealth need not prove that the precise measurements were accurate, only that the distance was less than one thousand feet.
That argument is foreclosed by our ruling in Commonwealth v. Cintron, 59 Mass.App.Ct. 905 (2003) (for purposes of the school zone statute, when a drug transaction takes place inside a building, the “site” of the drug transaction is the building itself, not the specific location within the building).
The drug sale took place in the bike section at the rear of the store, and there was testimony that indicated that this was greater than a thousand feet from the field.
Judgments affirmed.