Opinion
15-P-179
05-05-2017
COMMONWEALTH v. Toby E. WALTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Toby E. Walton, was convicted of trafficking in heroin (between eighteen and thirty-six grams), G. L. c. 94C, § 32E(c )(1), and negligent operation of a motor vehicle, G. L. c. 90C, § 24(2)(a ). On appeal, he contends that the trial judge should have recused himself from hearing the defendant's new trial motion, erroneously denied the motion, and mishandled a claim of a sleeping juror. We affirm.
Recusal. "To show that a judge abused his discretion by failing to recuse himself, a defendant ordinarily must show that the judge demonstrated a bias or prejudice arising from an extrajudicial source, and not from something learned from participation in the case." Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). The defendant argues that the judge's handling of an allegation that the defendant's house of correction medical record had been altered, combined with certain comments the judge made during the trial, demonstrated "pervasive bias." See Davis v. Board of School Commrs. of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975). We disagree.
The two different versions of the medical record—one with a handwritten notation on the second page indicating that the defendant used "[two] bundles" of heroin, and one without—suggested either that someone on the defense side had removed the notation or that someone on the government side had added the notation after the record had been produced to defense counsel. The judge's comments at trial did not reveal any bias: "[I]f this was altered, it was either done by the [h]ouse of [c]orrection[,] defense counsel[,] or the District Attorney's office. In any event, that's bad." The judge's subsequent referral letter to the Board of Bar Overseers (BBO) did not accuse defense counsel of wrongdoing, although the letter did state that "[i]t appears that the words '[two] bundles' had been whited out," tacitly suggesting that the defendant was responsible for the change. In his memorandum denying the new trial motion, however, the judge noted that "[t]he BBO's inquiry cleared both attorneys of any wrongdoing," and referred to the alterations in terms suggesting no bias against defense counsel.
Another discrepancy was a handwritten notation in the same area of the second page indicating that the defendant used "200 mg" of methadone ; however, both versions of the document referred to "methadone 200 mg" on the first page.
If anything, the judge's memorandum implied that the government was responsible for the alteration. The judge referred to defense counsel's version of the report as "[t]he initial report, without the handwritten comments" and as the "unaltered report"; he referred to the prosecutor's version, with the handwritten notations, as "the altered report."
Thus, the judge's handling of the medical record issue does not impugn his impartiality. Nor do the three isolated remarks discussed in the defendant's brief, made over the course of the six-day trial, require recusal. See Liteky v. United States, 510 U.S. 540, 555-556 (1994) ("expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as ... judges, sometimes display" do not establish bias or partiality). Having reviewed the entire record, we see no reason to question the judge's determination that he harbored no "subjective bias, or objective appearance of bias, that would preclude an impartial determination."
Denial of continuance. The defendant claims that the judge erred by denying his midtrial request (later joined by the prosecutor) for a hearing to determine the source of the discrepancy between the two versions of the medical record. He suggests that the judge's decision not to interrupt the trial interfered with his ability to present a defense because it effectively kept him from testifying and from using the record to substantiate his defense that he was a heroin addict.
"In determining whether to grant a continuance, judges are to be guided by the ‘controlling principle ... that a continuance should be granted only when justice requires.’ " Commonwealth v. Burston, 77 Mass. App. Ct. 411, 417 (2010) (citation omitted). "In approaching this problem, we are guided by the well-established view that a trial judge's decisions on matters of continuance, being committed to his discretion, are not to be disturbed on appeal unless shown to be arbitrary." Commonwealth v. Gilchrest, 364 Mass. 272, 274 (1973).
The judge stated that he would hold a hearing to investigate the issue, but that he did not intend to interrupt the trial to do so. The judge also indicated that the documents were not authenticated and therefore inadmissible. The defendant's current claim that he might have used the initial version of the document to support his defense directly contradicts defense counsel's statement at trial that he was not seeking to admit the record. Nor does the record support his claim that the threat of the prosecutor using the document to impeach him kept him from testifying. The prosecutor indicated that if the defendant testified he might ask, "Isn't it true that you told [the nurse at the house of correction] you did two bundles?" To establish this point, however, the altered document was unnecessary; the prosecutor had a good-faith basis to ask the question based on his conversations with the nurse.
Two bundles would amount to approximately twenty bags. In his opening statement, defense counsel hinted that the defendant used fifty bags per day.
Thus, we discern no abuse of discretion and no prejudice to the defendant. The trial judge reasonably concluded "that a continuance would result in a delay but not in the introduction of any significantly new evidence." Id. at 277.
Ineffective assistance of counsel. The defendant bears the burden of proving ineffective assistance of counsel. See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 438 (2016). "Counsel is ineffective where his conduct falls ‘below that which might be expected from an ordinary fallible lawyer’ and prejudices the defendant by depriving him ‘of an otherwise available, substantial ground of defence.’ " Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). With respect to the first prong of Saferian, defense counsel's tactical or strategic decisions do not amount to ineffective assistance unless they are manifestly unreasonable when made. See Commonwealth v. Bousquet, 407 Mass. 854, 863-864 (1990) ; Lacoy, supra at 439. "In assessing the second prong of Saferian, ‘a defendant is entitled to a new trial if we have a serious doubt that the result of the trial might have been different had the error not been made.’ " Lacoy, supra, quoting from Commonwealth v. Millen, 474 Mass. 417, 432 (2016).
The defense at trial was that the defendant was a "vicious" heroin addict and that he possessed the heroin solely for personal use. Expert testimony is routinely admitted to show "[w]hether a certain quantity of drugs is consistent with personal use or with distribution." Commonwealth v. Wilson, 441 Mass. 390, 401 (2004). But neither the Commonwealth nor a defendant may introduce "profile" evidence to describe the typical attributes of certain types of offenders to suggest that the defendant does or does not exhibit the characteristics of an offender. See Commonwealth v. Horne, 476 Mass. 222, 226-228 (2017) (Commonwealth may not rely on "negative profiling evidence" to prove that, because the defendant did not match the characteristics of a drug addict, he must be a drug dealer); Commonwealth v. Coates, 89 Mass. App. Ct. 728, 734-735 (2016) (expert testimony proffered to show that defendant did not fit the profile of a pedophile properly excluded).
Notwithstanding the inadmissibility of profile evidence—and the judge's determined efforts to keep it out—defense counsel sought to demonstrate, primarily through cross-examination of the Commonwealth's witnesses, that the defendant exhibited the characteristics of a drug addict rather than a drug dealer. To the extent he relied on improper profiling evidence to do so, counsel clearly pursued this strategy intentionally—and given the state of the evidence, he had few, if any, alternatives. "In view of the situation with which the defense counsel was faced, we cannot conclude that his trial tactics were ‘manifestly unreasonable.’ " Commonwealth v. Griffith, 404 Mass. 256, 263 (1989), quoting from Commonwealth v Adams, 374 Mass. 722, 728 (1978). "[T]he basic trouble from the defense standpoint was weaknesses in the facts rather than any inadequacy of counsel." Commonwealth v. Satterfield, 373 Mass. 109, 111 (1977).
The defendant was found slumped over in his truck at the side of the road with two tires missing and the engine running. Inside his truck the police discovered a shopping bag containing 1,461 individual bags of heroin (approximately twenty-six grams) and a handwritten piece of paper that appeared to be a ledger of transactions. The defendant had $1,113 cash in his pocket. The presence of a syringe and a needle mark on the defendant's arm indicated recent ingestion of heroin.
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With respect to the bank records, the defendant has not shown either that counsel's conduct was deficient or that he was prejudiced thereby. In calling Mark Socie, the branch manager, to authenticate the records, defense counsel reasonably relied on Socie's representation that he was the keeper of the records. Moreover, the records were excluded not only because of Socie's lack of qualifications, but also because the records were incomplete, a deficiency that even a qualified record keeper would not have been able to cure. Moreover, the defendant has not explained how the absence of the bank records deprived him of a defense. Although, contrary to the judge's findings, the records themselves were not admitted through a Commonwealth witness, their content was thoroughly discussed. Indeed, the state of the evidence was sufficient for defense counsel to argue in his summation that the defendant "deposited over $35,000 in cash from his business proceeds from working. Most of those deposits as you heard Officer Strout testify came from deposits from the Mass[.] Housing Authority for a contract job he was doing." Conspicuously absent from the defendant's new trial motion and from his appellate brief is any indication of how exactly the records he says were excluded would have helped his defense.
Accordingly, we discern no abuse of discretion in the judge's denial of the motion for new trial or in his denial of an evidentiary hearing.
Sleeping juror. "[N]ot every complaint regarding juror attentiveness requires a voir dire." Commonwealth v. Bois, 476 Mass. 15, 28 (2016), quoting from Commonwealth v. McGhee, 470 Mass. 638, 644 (2015). When defense counsel related the defendant's parents' report that a juror was sleeping—something that neither attorney had observed—the judge said he would "pay particular attention." When defense counsel repeated his client's parents' concern two days later, the judge said, "I have observed her. I haven't observed her nodding off or anything like that. She seems to be as attentive as anyone else, no more, no less."
"Where a judge has only tentative information that a juror may be sleeping, it is sufficient to note the report and monitor the situation." Commonwealth v. Alleyne, 474 Mass. 771, 778 (2016). The defendant has not shown that the judge's response was arbitrary or unreasonable. See Bois, supra. We discern no error.
Judgments affirmed.
Order denying motion for new trial affirmed.