Opinion
No. 15–P–1081.
10-25-2016
COMMONWEALTH v. Bruce F. LEWIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Bruce F. Lewis, appeals from the judgments after his convictions of possession of heroin with intent to distribute, second or subsequent offense, in violation of G.L. c. 94C, § 32(b), and possession of a class C substance, Clonazepam, in violation of G .L. c. 94C, § 34. We affirm.
Tuey–Rodriquez/Figueroa instructions. After about four hours of deliberations the jury reported, “We cannot come to a unanimous decision on the charge of intent to distribute, but we are unanimous with respect to possession of heroin.” With the agreement of both parties, the judge gave a Tuey–Rodriquez charge, and the jury continued deliberations. However, within thirteen minutes the judge called counsel into the court room and, having done his own legal research, directed their attention to the recently decided case of Commonwealth v. Figueroa, 468 Mass. 204 (2014), stating his intention to reinstruct the jury in accordance with Figueroa. The parties again voiced no objection. The judge then instructed the jury that his previous instruction “may have left a misimpression.” To the extent his prior instruction may have suggested that the jury “must resolve the possession with intent to distribute, either guilty or not guilty of that charge, before [they] can move on to guilty or not guilty of simple possession,” he said, “I gave you the wrong impression.” The judge then reinstructed the jury in accordance with Figueroa. Twenty-two minutes elapsed between the time the jury retired after the Tuey–Rodriquez charge and were called back for the Figueroa charge. The jury deliberated for approximately forty-five minutes more before delivering their verdict.
See Commonwealth v. Tuey, 8 Cush. 1, 203 (1851) ; Commonwealth v. Rodriquez, 364 Mass. 87, 101–102 (1973).
Speculating that the Tuey–Rodriquez charge must have affected deliberations, the defendant contends that the judge's instructions created a substantial risk of a miscarriage of justice. We disagree. Having realized his own error, the judge gave a specific curative instruction that, the defendant concedes, accurately conveyed how the jury should resolve any deadlock. The jury are presumed to follow such instructions. See Commonwealth v. Thomas, 401 Mass. 109, 116–117 & n. 8 (1987) ; Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010) ; Commonwealth v. Amran, 471 Mass. 354, 360 (2015). The judge's handling of the situation was exemplary.
The defendant also alleges that counsel was ineffective for failing to object to the initial charge. Whether we review for a substantial risk of a miscarriage of justice or for ineffective assistance of counsel, the result is the same. See Commonwealth v.. Randolph, 438 Mass. 290, 296 (2002) (“If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice—ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not”).
Particularity of search warrant. The police obtained a warrant to search the defendant's mobile home. The warrant described the property to be searched as follows: “The property/curtalige [sic ] of 24 Fawcett Lane specifically containing a mobile motor home owned by Bruce Lewis. This is Lewis' primary residence, in which he has registered and insured in his name.” The warrant described the motor home by color, license plate number, year, make, model, and vehicle identification number.
In his motion to suppress, the defendant claimed that the four corners of the affidavit in support of the warrant application did not establish probable cause to search the mobile home. On appeal, he argues that the execution of the warrant was flawed because the police searched the motor home described in the warrant at a gasoline station and not at 24 Fawcett Lane. As he did not raise this issue in his motion to suppress, “the defendant is precluded from raising the issue for the first time on appeal.” Commonwealth v. Ramos, 402 Mass. 209, 211 (1988).
Moreover, we discern no error, and therefore no risk of a miscarriage of justice. The warrant described the mobile home in great detail, and it is clear from the affidavit in support of the warrant application that the mobile home itself, and not the curtilage of 24 Fawcett Lane, was the target of the search. The affidavit asserted that contraband, proceeds, and evidence would be found “inside the mobile motor home of Bruce Lewis, currently located on the property at 24 Fawcett Lane” (emphasis supplied), and requested “a warrant to search the mobile motor home.” Given the inherent mobility of motor homes, the warrant described the mobile home “with the level of specificity that was practical in the circumstances.” Commonwealth v. Penta, 423 Mass. 546, 555 (1996).
In any event, having probable cause, the police likely would have been justified to search the mobile home under the automobile exception to the warrant requirement. See Commonwealth v. Bakoian, 412 Mass. 295, 303 (1992) ; Commonwealth v. Eggleston, 453 Mass. 554, 557 (2009). Any claim concerning the reasonableness of the circumstances that caused the police to execute the search at a gasoline station rather than at 24 Fawcett Lane is not before us because the defendant failed to raise this issue or to develop supporting facts in his motion to suppress.