Opinion
12-P-657
12-31-2012
COMMONWEALTH v. KEVIN ILGES.
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 sole contention in this appeal is whether there was sufficient evidence presented to determine whether the city map used at trial to identify the defendant's address in relation to a school zone comported with the requirements of the Sixth Amendment. We affirm.
Background. The defendant was convicted of one count of trafficking in a controlled substance, one count of trafficking in cocaine within 1,000 feet of a school zone, and one count of possession of vicodin. We affirm those convictions. Commonwealth v. Ilges, 64 Mass. App. Ct. 503 (2005).
At trial, the Commonwealth offered in evidence a map of the city of Gloucester to establish that the defendant possessed drugs within 1,000 feet of a school zone. The map depicted the defendant's address as shaded gray. All other residences were depicted with stripes through them. A purple circle, marking a 1,000-foot radius, was drawn around the defendant's address. The Commonwealth called David Knowlton (Knowlton), a city engineer, to testify as to the alterations on the map. On direct examination, and in response to the prosecutors question of whether he recognized the map, Knowlton testified 'yes . . . we made [the map] in my office.' He pointed out the defendant's address as 'the building []that has an odd shape to it.' Further, on direct examination, the prosecutor again asked 'who created [the map],' to which Knowlton replied, '[i]t was a member of my staff.' At the prosecutor's request, Knowlton shaded in a school zone that was within 1,000 feet of the defendant's address. Knowlton testified that the purple circle, 'at its deepest point' extends 'just under a hundred feet,' 'almost an inch', into the school zone.
On cross-examination, the following exchange occurred between defense counsel and Knowlton:
Q. 'Sir, do you know the date this particular map was made?'
A. 'It was one month ago. I made it one month ago.'
Q. 'At the request of the District Attorney's Office?'
A. 'Yes. Actually the detective in Gloucester.'
Q. 'Sergeant Ryan?'
A. 'No.'
Q. 'Robertson?'
A. 'Robertson.'
Q. 'Okay. And they gave you an address, is that correct?'
A. 'Yes.'
Q. 'And they said basically draw an area of a thousand feet circumference around it?'
A. 'Yes.'
Q. 'Is that correct? And you knew the request was to see if any part of a school was on that, is that correct?'
A. 'Yes.' (Emphasis added.)
The defendant moved for a new trial, arguing that his Sixth Amendment right to confrontation was violated because Knowlton did not create the alterations on the map. The Commonwealth opposed the motion, arguing that Knowlton independently measured the distance from the defendant's address to the school zone while testifying. In support, Knowlton submitted an affidavit stating that the map was created 'under [his] direction' by an employee of his office and that he sometimes brought a ruler to actually measure the distance at trial, but could not remember whether he did so in this instance. The prosecutor also submitted an affidavit, stating that although he could not recall whether Knowlton independently created the map, it was 'not [his] practice to call an engineer to simply authenticate the map.' He further stated, that based on his customary practice and the nature of Knowlton's testimony, 'including his comment that the circle intersected the school property by 'almost an inch", he believed Knowlton measured the distance while testifying. The motion judge, who was also the trial judge, denied the defendant's motion without a hearing.
Discussion. We review a decision to grant or deny a motion for new trial only to determine whether there was a significant error of law or abuse of discretion. Commonwealth v. Walker, 443 Mass. 213, 224-225 (2005). Where the motion judge also served as the trial judge, we give particular deference to that decision. Commonwealth v. Mercado, 452 Mass. 662, 666 (2008).
The defendant's argument rests solely on the engineer's statement on direct examination, when, in response to the prosecutors question, 'who created this [map] . . .?', the engineer responded, '[i]t was a member of my staff.' The defendant argues it is conclusive evidence that the engineer at trial did not create the map. However, there was never an assertion by defense counsel, during either direct or cross-examination, that the engineer did not create the map. Had defense counsel been concerned that the engineer was merely testifying to his review of his employee's work, we would expect a hearsay objection. See Commonwealth v. Greineder, 458 Mass. 207, 236-237 (2010).
The defendant's reliance on the engineer's statement alone ignores the rest of his testimony, which strongly indicates that he independently measured the distance and had a substantial hand in the map's creation. See Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 795-796 (2011). Moreover, defense counsel's questions implicitly acknowledge the engineer's significant control in generating the alterations. Affidavits from Knowlton and the trial prosecutor further establish that Knowlton made independent measurements while testifying. Because of evidence and the motion judge's particular familiarity with this case, we conclude that there was no abuse of discretion or error of law.
Order denying motion for new trial affirmed
By the Court (Meade, Sikora & Carhart, JJ.),