Opinion
10-P-2084
03-02-2012
COMMONWEALTH v. JASON LATIMORE.
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 raises two arguments in this direct appeal from various convictions relating to his sale of crack cocaine to an undercover policeman. We affirm.
The defendant was convicted, after a jury trial, of unlawful distribution of a class B controlled substance, G. L. c. 94C, § 32A(c); unlawful distribution of a class B controlled substance in a school zone, G. L. c. 94C, § 32J; possession of a class B controlled substance with intent to distribute, G. L. c. 94C, § 32A; possession of a class B controlled substance with intent to distribute in a school zone, G. L. c. 94C, § 32J; and resisting arrest, G. L. c. 268, § 32B. He was acquitted of two counts of assault and battery on a police officer, G. L. c. 265, § 13D.
The defendant argues that his motion to dismiss should have been allowed because the Commonwealth presented false and misleading testimony to the grand jury. More specifically, he points to Officer Linehan's (who conducted the undercover buy) testimony that the certificates of drug analysis bore both his and the codefendant's names when, in fact, only the codefendant's name appeared. 'Dismissal of an indictment based on impairment of the grand jury proceedings requires proof of three elements: (1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict.' Commonwealth v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986). 'Inaccurate testimony made in good faith does not require dismissal of an indictment.' Ibid.
The defendant is correct that Officer Linehan inaccurately stated that both defendants' names appeared on the certificates. That fact, standing alone, is not enough to warrant dismissal of the indictments. There is no evidence that the misstatement was deliberately made by the officer or presented by the prosecutor. Moreover, the certificates were available to the grand jurors to review themselves and the obvious and plain nature of the error undercuts any suggestion that it was made knowingly or deliberately so as to deceive or mislead. Moreover, the statement was unlikely to have factored into the grand jury's deliberations in any meaningful way, given the first-hand testimony by the officer as to who was involved in the sale of the cocaine, and the evidence linking the substances recovered from the defendant's person (and near him) after the sale and the test results reflected on the certificates. We see no error in the judge's denial of the motion to dismiss.
Secondly, the defendant argues that the drug certificates were inadmissible because they bore only the codefendant's name and not his own. The fact that the defendant's name (in addition to the codefendant's name) did not appear on the drug certificates of analysis went to their weight, not their admissibility. Commonwealth v. Rodriguez, 456 Mass. 578, 581 n.5 (2010).
Although counsel invokes Commonwealth v. Moffett, 383 Mass. 201, 207- 208 (1981), with respect to the second of the defendant's arguments, counsel has not correctly followed the Moffett procedure. We are nonetheless not inclined to allow the Commonwealth's motion to strike, but reject the defendant's argument on the merits.
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For these reasons, the judgments are affirmed.
So ordered.
By the Court (Cypher, Cohen & Wolohojian, JJ.),