Opinion
15-P-1614
05-16-2017
COMMONWEALTH v. REY LORENZANA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted on three indictments for unlawful distribution of heroin. On appeal, he argues that the judge erred by failing to provide the jury with a proper instruction on the use of the tape recorded jury instructions. We affirm.
Background. The defendant was charged in three indictments for unlawful distribution of heroin and two indictments for unlawful distribution of heroin within a school zone. After a jury trial he was convicted on the three indictments for unlawful distribution of heroin and sentenced. Prior to the charge to the jury, the judge informed the jurors that they would be allowed to use a tape recording of her instructions and an outline of her instructions during their deliberations. The defendant neither objected to the jury's use of the recording nor to the jury instructions. For the first time on appeal, the defendant claims that the judge committed reversible error by not providing a separate instruction to the jury on the proper use of the recorded jury instructions including to consider the recording in its entirety.
Discussion. Because the defendant did not object at trial we review any error for a substantial risk of a miscarriage of justice. Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016). In order to constitute such a risk, the error must "materially influence the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999)(quotation omitted).
Here, the judge announced, prior to closing arguments of counsel that she intended to send a tape recording of her entire instructions, a tape recorder, and an outline of her instructions with the jury to use during their deliberations. She also instructed the jury that she would make notations on the outline where that topic could be located on the recording. The defendant argues that the judge erred by failing to provide a separate instruction that the jury should consider the tape recorded instructions in their entirety to avoid selective overemphasis of any one area of the charge.
If a judge intends to provide the jury with a tape recording of the jury instructions to use during their deliberations, then "(1) the judge must advise the counsel for both parties that the judge is going to do it; (2) the tape recording must be audible in its entirety and contain the whole instruction; (3) the judge shall give instructions to the jury about how to use the tape recorded charge; and (4) the judge should have the tape recording marked for identification." Commonwealth v. Baseler, 419 Mass. 500, 506 (1995).
The potential for overemphasis may be avoided by cautioning the jury to "consider the whole charge in reaching their verdict." Commonwealth v. Baseler, 419 Mass. 500, 505 (1995). The judge's final instructions here assured that the jury would do so. The judge took pains during her instructions to assure that no part of her instructions was emphasized at the expense of another. The jurors were instructed that they should "not ignore any of [the] instructions" and should not "give special emphasis to any one instruction." Additionally they were charged that "[a]ll [the] instructions are equally important." There was no need for the judge to repeat these same instructions upon her announcement that the recorded instructions could be used by the jury. Commonwealth v. Redmond, 357 Mass. 333, 342 (1970).
In addition, the defendant has not argued, much less shown, how he was prejudiced by the absence of the instruction at issue. Thus, even if he had shown error, he would not have shown a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
Judgments affirmed.
By the Court (Kafker, C.J., Milkey & Lemire, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 16, 2017.