Opinion
11-P-1549
12-10-2012
COMMONWEALTH v. KEITH TAYLOR.
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
On appeal from convictions of possession with intent to distribute cocaine (subsequent offense) and another controlled substance, and an accompanying school zone violation, the defendant contends that (1) the motion judge erred in denying his motion to suppress evidence, (2) the school zone evidence was insufficient, (3) the trial judge erred in admitting expert testimony, (4) the judge imposed an extraneous influence on the jury, and (5) the jury waiver colloquy was inadequate. We affirm.
1. The search warrant. We reject the defendant's claim that the affidavit in support of the search warrant application failed to establish the requisite nexus between the defendant's drug dealing and 184 Canterbury Street, Apartment 2, Worcester. See Commonwealth v. Escalera, 462 Mass. 636, 643-645 (2012). The confidential informant made five controlled purchases of drugs from the defendant. On the second occasion, the police observed the defendant return to the apartment after the sale; on the third, they observed him leave that location and proceed to the sale; and on the fourth and fifth occasions they observed him leave the apartment, proceed to the sale, and return to the apartment after the sale. These observations established the requisite nexus. See id. at 643, 645. The absence of a recitation that the police field tested the substances does not vitiate the finding of probable cause. The number of successive controlled purchases warranted the magistrate in concluding that there was probable cause to believe the substances were drugs and not a counterfeit. Moreover, the affidavit recited that after each controlled purchase the informant turned over to the police what the defendant had provided: a white, rocklike substance that was recognized as consistent in color, texture, and packaging with cocaine. See Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 240 (2009). In determining probable cause, the averments in the supporting affidavit should be 'read as a whole, not parsed, severed, and subjected to hypercritical analysis.' Commonwealth v. Blake, 413 Mass. 823, 827 (1992).
2. The school zone. Trooper Nicholas E. Nason testified that the defendant's apartment was in proximity to 'the Canterbury Street School.' Following up that response, the prosecutor asked, 'What type of school is that?' Nason answered, 'I believe it's either an elementary or a middle school.' Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), Nason's unchallenged testimony, given without objection, suffices to establish that the Canterbury Street school falls within the statute. See Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 630 (2010); G. L. c. 94C, § 32J ('within one thousand feet of . . . a[n] . . . elementary . . . or secondary school'). Compare Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 324 (2008) (testimony insufficient to establish school was 'accredited').
3. The expert testimony. Trooper Peter Leduc's testimony that he found a piece of paper containing numbers in the defendant's computer room, to which no objection was lodged, does not give rise to error, whether individually or in conjunction with the later testimony of Lieutenant James Bigelow that some of the numbers appearing on the list are consistent with the amounts in which cocaine is often sold to a redistributor. Such evidence was relevant and admissible on the question of the defendant's intent to distribute. In any event, given the substantial evidence of the defendant's guilt, we discern no basis for reversing the conviction based upon the admission of this testimony. See substantially the reasons given in the Commonwealth's brief at pages 34-36.
Bigelow emphasized that the list is 'not . . . a cuff list.'
Likewise, the judge did not err in admitting, over objection, Trooper Nason's testimony that an unidentified caller on the defendant's cellular phone asked to speak with 'Keith' about purchasing a 'forty.' See Commonwealth v. DePina, 75 Mass. App. Ct. 842, 850-851 (2009) (telephone conversations non hearsay because admitted solely to establish use of telephone as means of distribution). The caller's words were not offered for their truth, but as assertions having independent legal significance, that the defendant used the telephone as an implement of his drug delivery business. The inference that the defendant ('Keith') was involved in sales of drugs did not depend on the caller's truthfulness, memory, or perceptions, the core concerns behind the hearsay rule. See United States v. Cesareo-Ayala, 576 F.3d 1120, 1130 (10th Cir. 2009). See also substantially the reasons in the Commonwealth's brief at 39-42.
4. Extraneous influence. For substantially the reasons at pages 43-46 of the Commonwealth's brief, the judge did not expose the jury to an extraneous influence by acknowledging an impending snowstorm and giving the jury the option to deliberate that day or return the next. Nothing in the record before us suggests, let alone establishes, that the judge abused his discretion in this regard or that the jury's deliberation and verdict was impermissibly curtailed or coerced as a result. The judge's actions 'were simply part of the common, everyday administration of the court room.' Commonwealth v. Brazie, 66 Mass. App. Ct. 315, 324 n.6 (2006).
5. The jury waiver colloquy. There is no merit to the defendant's claim that the judge conducted an insufficient colloquy regarding the defendant's waiver of the right to jury trial for the subsequent offense charge. The defendant signed a written jury waiver, and the judge engaged the defendant in a colloquy appropriate to the circumstances. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008).
The defendant had just participated in trial by jury on the underlying offense, observed the jury operate, and heard the judge's instructions detailing the jury's function and the differing roles of the trial judge and the jury as fact finder. In this context, the defendant clearly understood the difference between a jury trial and a bench trial. See Commonwealth v. Hardy, 427 Mass. 379, 382 (1998). The determination to waive the right to trial by jury was the intelligent and voluntary choice of the defendant himself, made after consultation with his lawyer and with full knowledge of the differences between a jury trial and a bench trial.
Judgments affirmed.
By the Court (Grasso, Vuono & Milkey, JJ.),