Opinion
11-P-1867
05-02-2013
COMMONWEALTH v. DARIUS GIBSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his March 24, 2011, convictions of distributing a class B substance, G. L. c. 94C, § 32A, and violating drug laws within 1,000 feet of a school, G. L. c. 94C, § 32J. He also appeals from the motion judge's denial of his pretrial motion to suppress.
Motion to supress. 'In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error. . . . However, we review independently the motion judge's application of constitutional principles to the facts found.' Commonwealth v. Franklin, 456 Mass. 818, 820 (2010). The defendant argues that the motion to suppress should have been allowed for two reasons. First, he claims that the judge's conclusion that the location of his arrest was a high crime area was clearly erroneous. Second, he argues that because the police lacked probable cause to arrest him, the evidence discovered while searching him incident to that arrest must be suppressed. We disagree. First, the motion judge's finding that this was a high crime area was not clearly erroneous. This is not a case where the testifying officer baldly asserts that this was a high crime area. Cf. Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009). Rather, Officer Linehan and Detective Chu offered specific testimony of the drug unit's prior work in this section of the city. See Commonwealth v. Johnson, 454 Mass. 159, 163 (2009). For example, Officer Linehan noted that the majority of the A-1 drug unit's work occurred on the block at issue here, and Detective Chu estimated that he had made thousands of drug-related arrests in that area. Those facts, and the logical inferences that flow from them, provide a substantial evidentiary basis to support the motion judge's finding that this was a high crime area. Accordingly, her finding was not clearly erroneous.
Second, the police arrested the defendant based on sufficient probable cause. '[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.' Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). 'Reasonable inferences and common knowledge are appropriate considerations in determining probable cause.' Commonwealth v. Alessio, 377 Mass. 76, 82 (1979). At the moment of arrest, the following facts were known to the police. Officer Linehan, posing as someone looking to buy drugs, gave Patrick Douglas money to buy 'rock,' a street term for crack cocaine. Douglas flagged down the defendant and Eric Hawkins and accompanied them to the corner of Tamworth and La Grange Streets. From seventy-five feet away, Detective Chu, an experienced drug unit officer, watched Douglas and Hawkins exchange something, but he could not see what the item was. Douglas then bit into the item and again handed something to Hawkins. Once more, Chu could not see what was exchanged. During these exchanges, the defendant scanned up and down La Grange and Tamworth Streets, behavior consistent, according to Chu, with being a lookout. Douglas returned to Officer Linehan and handed him the 'rock,' which Officer Linehan, using his training and experience and based on its look and feel, determined was crack cocaine. From these facts, and the reasonable inferences that follow, the police had sufficient evidence to conclude that the defendant had committed a crime, and thus there was probable cause to arrest. With a valid arrest, the police lawfully seized evidence of the crime during the search incident to that arrest. See Commonwealth v. Prophete, 443 Mass. 548, 552, 557 (2005).
The officers on this operation were in constant radio contact with each other. See Commonwealth v. Scott, 29 Mass. App. Ct. 1004, 1006 (1990) ('Probable cause may be based on the collective knowledge of police officers when they are engaged in a cooperative effort').
Patrick Douglas and Eric Hawkins were codefendants with Gibson at trial. Neither is a party to the instant appeal.
See note 2, supra.
The defendant points to Commonwealth v. Clark, 65 Mass. App. Ct. 39 (2005), to support his contention that the facts and circumstances here did not rise to the level of probable cause, but that case is inapposite. In Clark, supra at 44-45, the police officer observed a hand-to-hand transaction, but had no underlying basis for believing it was a drug transaction. Here, however, Detective Chu knew that Officer Linehan was arranging a drug purchase. He then watched as the intermediary engaged in a hand-to-hand exchange while the defendant scanned up and down Tamworth and La Grange Streets. The intermediary then returned to Officer Linehan with crack cocaine. It is a logical inference to conclude that codefendant Hawkins distributed the drugs to Douglas while the defendant served as a lookout.
Opening statement. The defendant next requests a new trial based on his claim that the prosecutor's opening statement was improperly argumentative and highly prejudicial, especially concerning the prosecutor's repetition of 'transaction' and 'hand-to-hand transaction.' Because the defendant did not object to the opening, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). 'The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.' Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010) (Sylvia), quoting from Commonwealth v. Croken, 432 Mass. 266, 268 (2000). The prosecutor's statements did not push the boundaries of permissible advocacy. Contrast Commonwealth v. Crichlow, 30 Mass. App. Ct. 901, 902 (1991) (Crichlow); Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 10 (2000) (Riberio). The prosecutor simply described what he intended to bring in as evidence. See Sylvia, supra. Because the prosecutor did in fact introduce evidence of a hand-to-hand transaction through Detectives Chu and Lynch, there was no error in the opening statement, let alone a substantial risk of a miscarriage of justice.
The defendant, relying on Crichlow and Riberio, also complains that the judge did not offer curative instructions following the opening statement. Reliance on those cases, however, is misplaced. In Riberio, supra, the prosecutor stepped 'over the line of permissible advocacy,' and thus instructions were required to cure the need for a mistrial. Likewise, the prosecutor in Crichlow, supra, in his opening statement 'improperly commented on the defendant's postarrest silence,' but, in the context of the record as a whole, the error was deemed harmless beyond a reasonable doubt. Here, in contrast, there was no error; thus, there was no need for curative instructions after the prosecutor's opening statement. In reviewing the opening statement as a whole, see Riberio, supra at 11, we see no reason to order a new trial.
The judge twice gave general instructions, one before opening statements and the other during the final jury charge, that opening statements are not evidence.
Witness testimony. The judge barred the Commonwealth from introducing expert testimony on street-level drug distribution. Nevertheless, according to the defendant, the Commonwealth skirted this provision by having its police witnesses discuss their credentials. The defendant also claims that the witnesses invaded the jury's fact-finding function by crossing the line from describing perceptions to giving opinion testimony. The defendant did not object, so we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, supra.
First, we reject the claim that the Commonwealth skirted the judge's decision to prohibit expert testimony. It is clear from the record that the prosecutor was simply eliciting background information about Detectives Chu and Lynch in order to lay a foundation for their subsequent testimony, and not in an attempt to sidestep the judge's ruling. There was no substantial risk of a miscarriage of justice.
Second, the defendant claims that part of Detective Chu's testimony -- that the hand-to-hand exchange appeared to be a 'drug transaction' -- was improper opinion testimony. That is certainly true, see Commonwealth v. Barbosa, 421 Mass. 547, 555 (1995), but reversal is not required here. Following a codefendant's objection, the judge instructed the jury to ignore any opinions that witnesses may have voiced. We presume that the jury will follow the judge's instructions, see Commonwealth v. Sylvia, 456 Mass. at 195, and we believe that this brief misstep, followed immediately by a curative instruction, did not create a substantial risk of a miscarriage of justice.
Similarly, we conclude that Detective Chu's testimony that he observed the defendant 'scan[ning] the area in a surveillance conscious manner' does not require reversal. The detective simply described, by way of analogy, the manner in which the defendant looked up and down the street. Thus, there was no substantial risk of a miscarriage of justice.
Sleeping juror. Finally, the defendant claims that he is entitled to a reversal because the judge did not conduct a voir dire of a juror who the judge suspected was sleeping during trial. We disagree.
'A judicial observation that a juror is asleep . . . requires prompt judicial intervention to protect the rights of the defendant and the rights of the public . . . .' Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). 'The judge has 'discretion regarding the nature of the intervention,' . . . , and not every complaint regarding juror attentiveness requires a voir dire . . . .' Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), quoting from Commonwealth v. Dancy, supra. 'The burden is on the defendant to show that the judge's decision in the matter was 'arbitrary or unreasonable." Commonwealth v. Beneche, supra, quoting from Commonwealth v. Brown, 364 Mass. 471, 476 (1973). The defendant has not met that burden here.
Just before the lunch recess on day four of the trial, the judge informed the attorneys that a juror 'ha[d] been sleeping most of the morning.' Counsel for the two codefendants (see note 2, supra) insisted he was simply resting his eyes for brief moments. The next day at the charging conference, the Commonwealth again raised the issue of the sleeping juror and suggested that, in the interest of justice, he be the alternate. The judge again expressed that he had observed the juror 'clearly sleeping.' The defendant's counsel maintained that the juror was not sleeping during trial. Counsel for codefendant Hawkins objected to the juror being dismissed for that reason. The court acquiesced. No inquiry was made, and the juror was not selected as the alternate.
The judge stated, 'Well, it's the liberty of the defendants that is at stake here and if they wish to keep the juror, we'll keep the juror, all right? Let's move on.'
'If a juror sleeps through testimony, the criminal defendant's fundamental right to a fair trial may be placed in jeopardy.' Commonwealth v. Keaton, 36 Mass. App. Ct. 81, 87 (1994). A defendant's right to challenge a sleeping juror, however, is not unassailable. Like other important rights afforded criminal defendants, it may be waived. See, e.g., Commonwealth v. Rowe, 257 Mass. 172, 174 (1926) (right to be tried by jury); Commonwealth v. Williams, 379 Mass. 874, 876 (1980) (right to public trial); Commonwealth v. Martin, 425 Mass. 718, 720-721 (1997) (right to assistance of counsel); Commonwealth v. Beliard, 443 Mass. 79, 89 (2004) (right to confront witnesses); Commonwealth v. Spear, 43 Mass. App. Ct. 583, 585-589 (1997) (right to defense of double jeopardy). See also Commonwealth v. Spaulding, 411 Mass. 503, 504-506 (1992) (right to speedy trial). We conclude that the defendant waived his right to challenge the sleeping juror.
When a juror is suspected of sleeping the judge must exercise a 'prompt judicial intervention,' and she met that requirement by notifying the attorneys of her suspicions. While a voir dire may have been the preferred practice, the judge's decision to proceed without removing the juror or conducting a voir dire was not 'arbitrary or unreasonable,' Commonwealth v. Beneche, 458 Mass. at 78, quoting from Commonwealth v. Brown, 364 Mass. at 476, especially after defense counsel and counsel for the codefendants insisted that the juror was not asleep, and in the same discussion counsel for a codefendant opposed the judge's suggestion that the juror be named an alternate, without disagreement or statement of a different position by counsel for the defendant. We thus conclude that the defendant has waived his right to challenge the sleeping juror.
The defendant also challenged the judge's submission of the criminal complaint to the jury. Codefendant Hawkins pressed the same issue on his appeal, but a panel of this court rejected the claim. Commonwealth v. Hawkins, 82 Mass. App. Ct. 1116 (2012). Although our unpublished decisions have no precedential value, see Chase v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008), we agree with our colleagues' conclusion.
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Judgments affirmed.
By the Court (Trainor, Brown & Milkey, JJ.),