Opinion
18-P-907
05-31-2019
COMMONWEALTH v. LAVAR EADY.
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
The defendant raises three arguments in this direct appeal from his conviction, after a jury trial, of distributing a class B substance (fentanyl), as a subsequent offense, in violation of G. L. c. 94C, § 32A (b). First, he asks us to conclude that the testimony of the substitute chemist in this case violated his right to confront witnesses under the Sixth Amendment to the United States Constitution, in effect asking us to overrule the Supreme Judicial Court's decision in Commonwealth v. Grady, 474 Mass. 715 (2016). Second, the defendant argues that the Commonwealth's evidence of distribution was insufficient because a reasonable jury could not find, beyond a reasonable doubt, that he had acted as the seller rather than the buyer of the drugs at issue. Third, he contends that a substantial risk of a miscarriage of justice occurs whenever a Tuey-Rodriquez charge is given, and that it did so here because the instruction was delivered prematurely. See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973). We affirm.
As to the defendant's first argument, although we respect defense counsel's zealous advocacy on behalf of his client in seeking to change the law, this court lacks the power to overrule the Supreme Judicial Court. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003); Commonwealth v. Healy, 26 Mass. App. Ct. 990, 991 (1988). As a result, the defendant's first argument is controlled -- and defeated -- by Commonwealth v. Grady, 474 Mass. 715. The substitute chemist's testimony concerning the composition of the narcotic substance was permissible as her own opinion based on her review of data generated by a nontestifying analyst. Id. at 723-724. See Commonwealth v. Greineder, 464 Mass. 580, 584 (2013).
The Commonwealth concedes, and we agree, that the substitute chemist's direct examination testimony with respect to the weight of the substance was erroneously elicited and admitted. However, it was not objected to and the defendant has not shown or argued any substantial risk of a miscarriage of justice resulting from its admission. We note that the weight of the substance was neither required to be proved nor otherwise at issue.
As to the defendant's second argument, we review the sufficiency of the evidence under the familiar framework of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), taking the evidence (and the reasonable inferences to be drawn from it) in the light most favorable to the Commonwealth, to determine whether there was enough evidence to permit a rational trier of fact to find beyond a reasonable doubt that the defendant distributed the drugs. Commonwealth v. Johnson, 481 Mass. 710, 728-729 (2019). Contrary to the defendant's assertion, the Commonwealth's evidence did not make it just as likely that the defendant was simply a user seeking to purchase drugs. See Commonwealth v. Russell, 46 Mass. App. Ct. 307, 311 (1999), citing Commonwealth v. Latney, 44 Mass. App. Ct. 423, 425-426 (1998). Police observed the defendant interact in two separate instances with individuals in a manner consistent with an exchange of drugs; the encounters were brief and appeared transactional; there were no indications that the encounters were social. As to the first encounter, the defendant briefly met with a couple and their arms went back and forth towards each other. The couple were then observed smoking a substance with a glass pipe. Within an hour, the defendant had a second encounter; this time, he met with a woman who appeared to have nothing in her hands beforehand, but afterwards had an item in her hand which she inspected before placing in her mouth. Again, the encounter was brief and did not appear social; the woman's and defendant's arms moved back and forth towards each other briefly. The woman then met a man, and the two went together to a nearby sheltered area. Police recovered from the man a small plastic bag containing fentanyl which he had placed in his mouth. When the defendant was immediately thereafter apprehended, he had no drugs or drug paraphernalia, but did possess a cell phone and $717. The defendant was sweating so heavily that his sweat formed a puddle on the ground where he was standing. See Commonwealth v. Sinforoso, 434 Mass. 320, 328 (2001) (viewing evidence in light most favorable to Commonwealth, defendant's sweating may support consciousness of guilt).
Finally, we are not persuaded by the defendant's argument that a substantial risk of a miscarriage of justice occurred from the timing of the Tuey-Rodriquez charge. This court reviews both the decision to give a Tuey-Rodriquez charge and its timing for an abuse of discretion. See Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 295 (2005). Here, although the defendant asserts that the charge was prematurely given, the record does not support his claim. The case was submitted to the jury on the second day of this short trial. After deliberating approximately two and one-half hours, the jury asked a question about what would happen "since we can't agree." The judge dismissed the jurors for the day. The following day, the judge found that the jurors had not yet completed "due and thorough deliberation," G. L. c. 234A, § 68C, and instructed them to continue their deliberations. Several hours later, the jurors submitted a note stating that they remained unable to reach a unanimous decision and did not feel that more time would help "sway either party." The judge found that the jury had deliberated for six or seven hours by this time -- approximately as long as the testimony had taken. At this point, both the prosecutor and defense counsel told the judge that it would be appropriate to deliver the Tuey-Rodriquez instruction. We discern no abuse of discretion in these circumstances.
Nor are we persuaded by the defendant's argument that the charge is coercive in all instances, let alone that it was so here where the judge's "comments [we]re balanced and not slanted toward conviction." Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 173 (2017).
Judgment affirmed.
By the Court (Wolohojian, Kinder & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 31, 2019.