Opinion
10-P-784
03-26-2012
COMMONWEALTH v. DAVID W. JEFFERSON.
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, David W. Jefferson, was convicted of armed robbery and kidnapping. He raises three complaints on appeal and asserts that he received ineffective counsel for failure to object to these three errors.
First, the defendant argues that evidence that he was driving a stolen car was improperly admitted at trial as bad act evidence. Prior bad act evidence is 'evidence that a defendant previously has misbehaved.' Commonwealth v. McCowen, 458 Mass. 461, 477 (2010), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). A BB gun and the same type of zip ties used to bind a motel were found in the car.
The defendant's own counsel strategically elicited the evidence that the car was stolen during his cross-examination of a police officer to disassociate the defendant from the gun and ties found in the car. Defense counsel attempted to do this by eliciting on cross-examination that the officer's 'attention at least in part was drawn to this motor vehicle because it was reported stolen.' In his closing remarks, defense counsel stressed that the ties had been found '[i]n the trunk of the car where none of the defendant's personal belongings were taken from in a stolen car. In a stolen car. In a stolen car. How do we know . . . that he even knew of the existence of those zip ties? Or the gun?' The importance of this strategy was underscored by repetition of the phrase, 'in a stolen car.'
The prosecutor's subsequent inquiries about the date and place the car was reported stolen and the defendant's statement to a friend that he had purchased the car were relevant for the purpose of establishing that the car had been in the defendant's possession for a sufficient amount of time after the reported theft to permit the jury to conclude that he had placed the BB gun and zip ties in it.
In both closing arguments, references were made only to 'a stolen' car or vehicle, without any suggestion or implication that the defendant had stolen the car or knew it was stolen. Moreover, the judge instructed the jury that they were 'not to speculate about matters which were not presented in evidence,' and jurors are presumed to follow a judge's instructions. Commonwealth v. Caldwell, 459 Mass. 271, 278 (2011). Particularly given the defense strategy to focus on the stolen nature of the car, the probative value of the prosecutor's treatment of the evidence strongly outweighs any possible prejudicial effect.
Second, the defendant asserts that he was denied his Sixth Amendment to the United States Constitution right to confront and cross-examine Merth, the Massachusetts State Crime Lab analyst who performed the deoxyribonucleic acid testing on the BB gun. The testimony of the lab supervisor, Cunningham, was that both he and Merth had independently arrived at the same opinion: there was insufficient data from which to draw any conclusions. Cunningham's testimony provided no prejudicial link between the defendant and the BB gun. That link had been established by the testimony that the gun had been found under the driver's seat of the car being driven by the defendant. There was no substantial risk of a miscarriage of justice.
Third, the defendant asserts that his right to a public trial was denied when the judge, sua sponte, excluded the public during the instruction phase of the trial. The record demonstrates that, contrary to the defendant's claim, there was no closure, 'partial' or otherwise, of the court room. It is well-settled law that 'no 'closure' of a court room occurs where a judge orders that no one may leave or enter the court room during the judge's charge to the jury in order to prevent disruption or distraction of the jurors during the charge.' Commonwealth v. Cohen, 456 Mass. 94, 112 n.27 (2010).
Here, at the conclusion of closing arguments, the judge announced, 'I'll just state for anybody who's in the courtroom, once I begin to instruct the jury, you won't be permitted to leave. I think they all know that. And once I start, no one will be permitted in either. Ladies and gentlemen, you're welcome to stand and stretch if you'd like. I'm going to be talking to you for another half hour at least.' The transcript then indicates that there was a '[p]ause in proceedings.'
The Cohen court recognized the distinction between the issue before it -- the partial closure of the court room during jury selection -- and a no exit/no entry order prior to the judge's charge. Commonwealth v. Cohen, 456 Mass. at lll-ll2 & n.27. The partial closure must be justified by a 'substantial reason.' Id. at lll. On the other hand, a no exit/no entry order requires no such justification because it is not a closure and it serves the self-evident purpose of 'prevent[ing] disruption or distraction of jurors during the charge.' Id. at 112 n.27. Here, there was no closure; therefore the claim is without merit.
Finally, the defendant argues that his counsel was ineffective for failing to object in connection with the three particularized claims of error addressed above. In order to prevail on an ineffective assistance claim, the defendant must show that 'there has been serious incompetency, inefficiency, or inattention of counsel . . . falling measurably below that which might be expected from an ordinary fallible lawyer,' and that the failure 'deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant has failed to identify any serious misstep by counsel and failed to identify, let alone demonstrate, that a substantial ground of defense was lost.
Judgments affirmed.
By the Court (Berry, Kafker & Mills, JJ.), Clerk