Opinion
10-P-1864
12-22-2011
COMMONWEALTH v. JOHN F. O'BRIEN.
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
After a Superior Court jury trial, the defendant was convicted of trafficking in a controlled substance (cocaine), see G. L. c. 94C, § 32E(b)(2), and unlawful possession of a controlled substance (cocaine), see G. L. c. 94C, § 34. The jury acquitted his codefendant, Kathleen Brown. We affirm.
This was the defendants' second trial on these charges. Originally, the defendant and Brown were tried together in October, 2007. A jury found the defendant guilty of trafficking in a controlled substance and unlawful possession of a controlled substance, and found Brown guilty of trafficking in a controlled substance and unlawful possession of a hypodermic instrument. In November, 2009, this court vacated both defendants' drug convictions pursuant to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and a retrial ensued.
Background. On December 27, 2003, police executed a search warrant at Brown's home in Lakeville, Massachusetts. Prior to executing the warrant, police conducted surveillance and searched trash left outside the home. They found plastic baggies containing white residue, a list of names and dollar amounts, mail addressed to Brown, and green vegetable matter believed to be marijuana.
When the police entered the house, Brown was in the living room with another woman and three children. The defendant was found with another man in the rear bedroom. The defendant was holding a rolled-up dollar bill and bending over a DVD case containing four lines of cocaine.
In the bedroom, police found a bag containing 3.72 grams of cocaine, two bottles of Inositol, two cut straws, a list of names and dollar amounts, a sock containing $156 in currency, various papers belonging to the defendants, marijuana roaches, and a bag containing $1,519 in currency. They also found $250 in currency in the defendant's front pocket.
The police also searched a locked shed outside the home after obtaining the combination from Brown. In the shed, police found a plastic bag containing 44.82 grams of cocaine buried inside a bag of potting soil, a spoon, plastic baggies, scissors, a grinder, and a scale.
Discussion. 1. Severance. The defendant's chief contention is that he was entitled to have his case severed from that of Brown. We review his argument under well-established principles.
'Absent a constitutional requirement for severance, joinder and severance are matters committed to the sound discretion of the trial judge.' Commonwealth v. McAfee, 430 Mass. 483, 485 (1999). Severance is required only 'when the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial.' Commonwealth v. Moran, 387 Mass. 644, 658 (1982). Compelling prejudice arises when the defenses asserted at trial conflict to the point of being 'mutually antagonistic and irreconcilable.' Id. at 659. ''[M]utual antagonism' only exists where the acceptance of one party's defense will preclude the acquittal of the other.' Id. at 657 (citations omitted). Severance is not required merely because the trial strategies of codefendants are inconsistent or the defendant 'would have had a better chance of acquittal had he been tried alone.' Commonwealth v. Smith, 418 Mass. 120, 129 (1994), quoting from Commonwealth v. Moran, supra at 659.
Here, the defendants' strategies were not mutually antagonistic and irreconcilable. Brown's strategy was to deny any knowledge of drug trafficking activity on her property, while the defendant's strategy was to portray himself as a drug user who did not live in the house and did not have access to the shed where the large amount of cocaine was found. Furthermore, both defendants pointed a finger at a potential third party culprit -- eliciting police testimony that Brown's previous boyfriend had lived in the house and stored items in the shed, and arguing this point in closing argument.
In short, this was not a case where '[t]he sole defense of each was the guilt of the other.' Commonwealth v. Moran, supra at 656 (citations omitted). Nor was this a case where the defendant suffered compelling prejudice. Here, particularly where there was evidence of a third party with access to the area, and no evidence as to when the cocaine was placed in the shed, the jury were free to accept the defenses of both defendants, or neither of them.
Nothing in Brown's opening statement or cross-examination of witnesses changes this analysis. Accordingly, the defendant's counsel did not render ineffective assistance in failing to renew the motion to sever and seek mistrial. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007) (ineffective assistance claim based on failure to bring motion requires showing that motion likely would have been granted).
2. Jury instructions. The defendant argues that the judge erred by failing to instruct the jury on the lesser included offense of possession with intent to distribute. 'A judge is required to charge the jury concerning lesser included offenses if the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.' Commonwealth v. Gonzalez, 67 Mass. App. Ct. 877, 880 (2006), quoting from Commonwealth v. Santo, 375 Mass. 299, 305 (1978). A defendant charged with trafficking in a controlled substance is entitled to an instruction on a lesser included offense only if the weight of the drugs is disputed. See Commonwealth v. Johnson, 32 Mass. App. Ct. 355, 358 (1992).
In this case, there was no rational basis for the jury to find that the defendant possessed less than the trafficking weight for the cocaine in the shed, which was the sole basis for the trafficking charge, as the cocaine inside the home weighed less than twenty-eight grams. The judge recognized this and properly denied the request for the lesser included offense instruction.
The judge also was not required to refer in the trafficking charge to factors such as the exceptional purity of the drugs, repeated travel to drug distribution centers, or sophisticated sales arrangements. These factors were not at issue in this case, and the defendant did not request their inclusion.
3. Police witness testimony. The defendant challenges several statements made by Detective Thomas Keating during his testimony at trial. Substantially for the reasons stated in the Commonwealth's brief, we discern no error, prejudice, or substantial risk of a miscarriage of justice.
Keating stated that the quantity of cocaine was consistent with drug trafficking, that he would be unlikely to obtain a handwriting analysis in this type of case, and replied, 'I testified on this before' in response to a question during cross-examination. The defendant objected only to the last statement.
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Judgments affirmed.
By the Court (Kafker, Cohen, & Katzmann, JJ.),