Opinion
10-P-2127
04-09-2012
COMMONWEALTH v. DAVID 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
After a jury trial in Superior Court, the defendant was convicted of possession of cocaine with intent to distribute (subsequent offense), G. L. c. 94C, §§ 32A(c) & (d), and a drug violation in a school zone, G. L. c. 94C, § 32J. We affirm.
1. Sufficiency of the evidence. Taken in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence at trial showed that during a search of the defendant's apartment, police found $1,900 in cash and two cell phones in a room that the jury could reasonably have concluded was the defendant's bedroom. A search of the defendant's person revealed a third cell phone. Nine individually packaged rocks of crack cocaine were found beneath a sweatshirt the defendant admitted was his, and the jury reasonably could have inferred that they had fallen from the sweatshirt's pocket. A search of the kitchen revealed a box of sandwich baggies, as well as paperwork containing 'some math notations.' This evidence and the inferences that reasonably could be drawn therefrom, see ibid., were 'sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime.' Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). See, e.g., Commonwealth v. Wilson, 441 Mass. 390, 401-402 (2004); Commonwealth v. Gonzalez, 452 Mass. 142, 148-149 (2008); Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 238-241 (1997), and cases cited.
2. Jury instructions. At the end of her instructions on aiding and abetting, the trial judge told the jury that:
'If you should find that the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, or that he had the shared intent required for that crime, then you may find him guilty of the charge. If you find that the Commonwealth has not proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, or shared the intent required for that crime, then he must be acquitted.'
The defendant did not object to this instruction, and at the close of the charge defense counsel declared that he was content with the instructions given. The defendant now argues that this instruction permitted the jury to return a guilty verdict without finding that the defendant both participated in the commission of the crime and acted with the requisite intent.
The defendant also argues that the judge abused her discretion by instructing the jury on aiding and abetting at all. The defendant's argument on this point is unsupported by citation to any legal authority, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and in any event we discern no error.
'We construe jury instructions as a whole. Isolated misstatements included in a comprehensive charge to the jury do not constitute reversible error when there is little likelihood that the jury would have misunderstood the correct import of the entire charge.' Commonwealth v. Rogers, 459 Mass. 249, 262 (2011). The misstatement in the judge's charge came after a near verbatim recitation of the entirety of the model instruction set out in the appendix to Commonwealth v. Zanetti, 454 Mass. at 470, in the course of which the jury heard multiple times that in order to convict the defendant they were required to find that he 'intentionally participate[d] in some meaningful way in the commission of the offense, with the intent required to commit the offense.' Ibid. Especially as there was no objection to the charge at the time, see Commonwealth v. Colleran, 452 Mass. 417, 430 (2008) ('The absence of any objection suggests that counsel did not [view the instruction as it is argued on appeal] . . . . If counsel did not get that impression, then neither would a reasonable jury'), we do not believe there is any significant likelihood that the jury misunderstood the import of the charge as a whole.
3. The confidential informant. The search of the defendant's apartment that led to his arrest and prosecution resulted in part from a confidential informant's tip to police that another individual was selling drugs out of the apartment. In general, the identity of a confidential informant is privileged, especially if the informant is a 'mere tipster' whose information bears solely on the issue of probable cause for an arrest or search. Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989). Prior to trial, the defendant filed a motion for disclosure of the informant's identity. See Commonwealth v. Shaughessy, 455 Mass. 346, 353-354 (2009) (to obtain the informant's identity, 'the burden is on a defendant to demonstrate that an exception to the privilege ought apply, that is, that the disclosure would provide him with material evidence needed . . . for a fair presentation of his case to the jury'). The judge concluded that some of the informant's information could be relevant and helpful to the defense -- specifically, the fact that on all three occasions when the informant had bought drugs at the defendant's apartment, the informant had dealt solely with another individual, and never with the defendant. However, the judge determined that disclosure of the informant's identity was not necessary to get that information before the jury. Instead, the judge suggested that the parties enter a stipulation containing the exculpatory information. The parties entered such a stipulation in evidence at trial. As a result, any exculpatory value the informant's testimony might have had was fully captured by the stipulation. See Commonwealth v. Connolly, 454 Mass. 808, 827-828 (2009). There was no error.
4. Other alleged errors. The defendant claims that his trial counsel rendered ineffective assistance by failing to submit any motions in limine prior to the defendant's retrial (a previous trial had ended in a mistrial). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). '[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal.' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Instead, 'the preferred method for raising a claim of ineffective assistance is through a motion for a new trial.' Commonwealth v. Burts, 68 Mass. App. Ct. 684, 685 (2007). Because the defendant has not pursued a motion for a new trial, he has not presented by affidavit or otherwise any evidence of trial counsel's reasoning in choosing one trial strategy over another. On the current record we cannot conclude that the tactics of the defendant's trial counsel were manifestly unreasonable.
Finally, the defendant contends that the prosecutor engaged in misconduct by failing to submit a motion in limine regarding her intention to proceed (in the alternative) under a joint venture theory. This claim is unsupported by any legal authority, and we discern no merit in it.
Judgments affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),