Commonwealth v. Blanchard , 88 Mass. App. Ct. 637 ( 2015 )

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14-P-645 Appeals Court
COMMONWEALTH vs. MICHAEL BLANCHARD.
No. 14-P-645.
Norfolk. October 2, 2015. - November 12, 2015.
Present: Katzmann, Grainger, & Maldonado, JJ.
Practice, Criminal, Jury and jurors, Deliberation of jury,
Instructions to jury, Voir dire, Mistrial, Confrontation of
witnesses, Required finding. Constitutional Law, Jury,
Confrontation of witnesses. Jury and Jurors. Evidence,
Expert opinion, Cross-examination. Witness, Cross-
examination. Firearms. License.
Indictments found and returned in the Superior Court
Department on April 16, 2010.
The cases were tried before Elizabeth M. Fahey, J.
William S. Smith for the defendant.
Pamela L. Alford, Assistant District Attorney (Gregory P.
Connor, Assistant District Attorney, with her) for the
Commonwealth.
GRAINGER, J. The defendant was convicted by a jury in
Superior Court of murder in the second degree, G. L. c. 265,
§ 1, and carrying a firearm without a license, G. L. c. 269,
2
§ 10(a).1 On appeal, he asserts that the trial judge improperly
denied his motion for a mistrial, erred in admitting testimony
of a substitute medical examiner, erred in preventing his line
of questioning on cross-examination, and that there was
insufficient evidence to support the firearms conviction. We
set forth the background of the case as it pertains to the
issues on appeal.
Background. After the jury had reached their verdicts, but
before they were announced, the prosecutor was informed by a
court officer that a white three-ring binder containing the
judge's copy of the motions in limine, including documents and
photographs excluded from trial and a complete unredacted set of
jail telephone call transcripts, had been delivered into the
jury deliberations room.2 The prosecutor alerted defense counsel
and, after reviewing the binder together, they recognized that
it was not in evidence. Outside the presence of the jury,
counsel then brought this matter to the attention of the judge.
The judge noted that the binder was not intended to be submitted
to the jury. Upon inquiry, it was discovered that the binder
1
The defendant was found not guilty on an indictment
charging armed assault with intent to murder.
2
The binder contained transcripts of conversations between
the defendant and his family about the fact that the family had
to mortgage their house to pay for defense counsel,
conversations about miscarriages the defendant's girl friend
had, and about other drug use.
3
had been inadvertently included with the exhibits brought over
to the jury room. The judge stated to counsel: "I would be
shocked if I don't have to declare a mistrial if [the jury] did
review it."
The judge then conducted individual voir dire examinations
of each juror about the binder in accordance with Commonwealth
v. Mejia, 461 Mass. 384, 393-396 (2012) (Mejia).3 Several jurors
recalled having looked through the binder during deliberations.
The foreperson thought the binder was not "really material to
the discussion of [their] reaching a verdict." Each juror
affirmed the ability to disregard the contents of the binder and
reach the verdicts based only on the evidence at trial and the
judge's instructions on the law.
The judge did not look at the initial jury verdict slips
and impounded them.4 She supplied the jury with new verdict
slips, and they were instructed to resume deliberations.
3
The judge asked each juror if he or she had seen the
binder in question and, if so, to what extent, and if he or she
would be able to disregard the contents of the binder when
continuing deliberations. The judge did not inquire about the
role of the binder materials in the jury's deliberations to that
point. See Commonwealth v. Fidler, 377 Mass. 192, 198 (1979)
("[J]uror testimony concerning the existence of extraneous
influences does not . . . unduly intrude on jury
deliberations").
4
The Commonwealth subsequently moved that the initial
verdict slips be destroyed; the defendant did not oppose the
motion, and the judge allowed it.
4
Discussion. Extraneous information introduced to the jury
room. If a judge "determines that the jury may have been
exposed during the course of trial to material that 'goes beyond
the record and raises a serious question of possible prejudice'
[the judge] should conduct a voir dire examination of jurors to
ascertain the extent of their exposure to the extraneous
material and to assess its prejudicial effect." Mejia, supra at
394, quoting from Commonwealth v. Womack, 457 Mass. 268, 280
(2010). A judge, however, may not receive any evidence
"concerning the subjective mental processes of jurors" for this
would involve probing the juror's thought processes.5
Commonwealth v. Fidler, 377 Mass. 192, 196 (1979) (Fidler).
The foreperson's remark that the binder was "not really
material" crossed the permissible line from a description of
improper influences to an assessment of their impact on the jury
deliberations. Had the judge approved the verdicts on that
basis we would be confronted with reversible error. However,
during her voir dire, and in addition to determining that there
had been no prejudice, the judge correctly ascertained the
jury's ability to decide the case on properly admitted evidence
alone, and ordered the jury to redeliberate without considering
5
As Fidler acknowledges, "We recognize that the line
between overt factors and matters resting in a juror's
consciousness is not easily drawn, and difficult cases will
arise." Id. at 198.
 5
any of the materials in the binder.6 "Jurors are presumed to
follow a judge's instructions, including instructions to
disregard certain testimony." Commonwealth v. Caldwell, 459
Mass. 271, 278 (2011), quoting from Commonwealth v. Vallejo, 455
Mass. 72, 78 (2009).
We therefore view this case as presenting a somewhat
distinct issue from that presented in Fidler and its progeny,
which involved inquiries after verdicts had been announced. By
sealing and then discarding whatever partial or final conclusion
the jury may have attained at the time the error was unearthed,
the judge removed the extraneous influence from consideration.
This record is closely analogous to Commonwealth v. Tennison,
440 Mass. 553 (2003), a case allowing, after deliberations had
begun, replacement of a single juror suspected of unauthorized
contact with one of the parties.
"We review a judge's ruling that the jury remained
impartial and could disregard the extraneous information for an
abuse of discretion." Mejia, supra at 395, quoting from
Commonwealth v. Womack, supra at 280-281.7 The judge acted
6
The jury's initial verdict slips were sealed and thus
invalidated as they were not "given and affirmed orally by the
jurors in open court." Commonwealth v. Tennison, 440 Mass. 553,
561 (2003).
7
The defendant moved for the transmittal of the binder to
this court, asserting it was "relevant and absolutely necessary"
to our consideration of this issue. We treat this motion as a
6
within her discretion to determine that by instructing the jury
"to decide the entire case anew, [s]he eliminated any influence"
from the extraneous materials prospectively. Commonwealth v.
Tennison, supra at 561.
Admission of testimony of substitute medical examiner.
Because the medical examiner who conducted the autopsy was
unavailable for trial, a substitute medical examiner testified
in his place. "A substitute medical examiner who did not
perform the autopsy may offer an opinion on the cause of death,
based on his review of an autopsy report by the medical examiner
who performed the autopsy and his review of the autopsy
photographs . . . [as well as offer] an expert opinion as to the
time that would have elapsed between injury and death, the force
required to inflict the injury, and the effect that certain
types of injuries would have upon a victim." Commonwealth v.
Reavis, 465 Mass. 875, 883 (2013). "A substitute medical
examiner may not, however, testify to facts in the underlying
autopsy report where that report has not been admitted." Ibid.
The record shows that the substitute expert's testimony on
the number of gunshot wounds was based on autopsy photographs
that were properly authenticated by a witness present at the
claim that the materials were sufficiently prejudicial to render
the judge's finding that the jury could disregard them as clear
error. We conclude from a review of the binder that it does not
support such a claim.
7
autopsy. At trial, the substitute medical examiner identified
the photographs which showed the entry and exit wounds. The
substitute medical examiner was free to rely on admitted
photographs and "to describe what he . . . observe[d] in those
photographs." Commonwealth v. DiPadova, 460 Mass. 424, 438 n.17
(2011). There was no error in allowing such testimony.
Cross-examination of victim's sister. During the cross-
examination of the victim's sister, the defendant began
questioning her about certain cellular telephone text messages
she had received from the defendant. The judge interpreted the
defendant's question as asking the witness "what the sender of
the message meant" and intervened sua sponte.8
To determine whether the defendant's constitutional right
to confront witnesses against him has been violated, "we weigh
the materiality of the witness's direct testimony and the degree
8
Defense counsel began the relevant inquiry by quoting from
a text message received by the witness:
Defense counsel: "'-- car. He did it with my own car.
And I don't care if the cops know who killed him.' What is that
in reference to in November of 2009?"
The judge: "How can she say that?"
Defense counsel: "Well, because this --"
The judge: "That's for the jury."
Defense counsel: "Well, I'm asking her. It's a text that
she received. And -- and I'm asking --"
The judge: "You're asking her, in effect, what the sender
of that message meant. And that's not for her to conclude."
Defense counsel: "Can I ask her if she -- if she knows
anything about what's referring to a car?"
The judge: "You can't ask her what the sender meant."
8
of the restriction on cross-examination." Commonwealth v.
Miles, 420 Mass. 67, 72 (1995). We note that "a witness may
testify only to facts that she has observed and may not give an
inference or opinion based upon those facts." Olson v. Ela, 8
Mass. App. Ct. 165, 167 (1979).
There is no evidentiary basis to conclude that the witness
had personal knowledge about the underlying meaning of the text
message. The witness testified that she had limited
communications with the defendant in the months prior to
receiving the text messages, and stated "I don't really recall
what was said during that conversation" when asked about a text
sent earlier that same day. "[T]he extent of cross-examination
is generally within the control of the trial judge." McElwain
v. Capotosto, 332 Mass. 1, 3 (1954). Absent personal knowledge
of the witness, the judge did not err in preventing the
defendant from further questioning.
Insufficiency of the evidence on the conviction of
possession of a firearm without a license. The defendant
acknowledges that the Commonwealth does not have the burden to
produce evidence of the defendant's lack of gun licensure. See
Commonwealth v. Gouse, 461 Mass. 787, 804 (2012). Licensure is
an affirmative defense, which the defendant must raise; the
Commonwealth only needs to "prove the absence of properly raised
affirmative defenses." Ibid., quoting from Commonwealth v.
9
Cabral, 443 Mass. 171, 178 n.15 (2005). The defendant made no
proffer respecting licensure; the judge properly denied the
defendant's motion for a required finding.
Judgments affirmed.