|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Owens, 414
Supreme Judicial Court of Massachusetts,
Argued
Decided
Joseph J. Balliro,
James F. Lang, Asst. Dist. Atty., for Commonwealth.
Before [414
LYNCH, Justice.
After a
jury trial in the Superior Court the defendant, Johnny Owens, was found guilty
of trafficking in heroin, unlawful carrying of several firearms, and possession
of firearms without a firearm identification card. (FN1)
Indictments charging the defendant with possession with intent to
distribute heroin, possession with intent to distribute marihuana, possession
of procaine, possession of ammunition without a firearm identification card,
and possession of a defaced firearm were placed on file with the defendant's
consent. On appeal, the defendant
contends that the trial judge erred in several respects, including: (1) denying his motions to dismiss the
indictments and to suppress evidence because the arresting officers were
outside their jurisdictional territory;
(2) denying his request to be present at the voir dire of prospective
jurors, thereby violating his constitutional rights; (3) giving erroneous instructions on
constructive possession which misled the jury in assessing whether the
defendant had constructive possession of the contraband discovered in the trunk
of the automobile that he had been operating;
(4) improperly instructing the jury that a witness's interest in the
outcome of the case could influence his credibility; and (5) permitting convictions of both
possession with intent to distribute heroin and trafficking in heroin because
possession [414 Mass. 597] with intent to distribute is a lesser
included offense. We transferred the
case to this court on our own motion.
We
summarize the findings of fact leading to the arrest as found by the judge who
ruled on the motions to dismiss and to suppress. On
Pursuant
to his request for a check of the Cadillac, Detective Lanergan received
information that the automobile was not stolen, but the vehicle owner was the
subject of an outstanding warrant for serious felony charges. As the detective drove closer to the two
vehicles, they moved from the parking lot into traffic. Detective Lanergan attempted to determine the
number of the
Detective
Lanergan approached the Cadillac and identified himself. For his own protection, he conducted a pat‑down
search of the defendant's outer clothing.
He felt a bulge in the area of the defendant's waist. The defendant stated that [414 Mass. 598] he had
a gun. The detective reached in and
removed a .32 caliber revolver. In his
pocket, the defendant had a magazine containing ammunition which did not fit
the revolver.
Since the
ammunition did not fit the revolver, the detective believed that there could be
other guns located in the trunk of the vehicle.
Detective Lanergan opened the trunk, saw a shotgun, and immediately
closed the trunk without conducting a search.
He advised the defendant of his Miranda rights and placed him under
arrest. The defendant was transported to
the Quincy police station for processing.
The Cadillac was towed to the station where an inventory search of the
vehicle took place. This search resulted
in the seizure of more guns, ammunition, and drugs.
Subsequently,
Detective Lanergan learned that the owner of the vehicle was the defendant's
son. There apparently were no
outstanding warrants on the defendant. At
the time the detective stopped the defendant he had neither a physical
description of the owner nor his date of birth.
1. Motions to dismiss and to suppress. At the hearing on the motions to suppress
evidence and to dismiss the indictments, testimony was provided by Detective
Lanergan. After the hearing, the judge
denied the defendant's motions on three grounds: (a) the police had made a lawful
investigative inquiry based on the information before them which justified the
arrest; (b) the arrest was valid and
proper as the result of fresh and continued pursuit; and (c) the arrest was justified as a
citizen's arrest because the detective had reasonable cause to believe that the
defendant had committed a felony. The
defendant challenges the judge's ruling arguing that the Quincy police did not
have lawful extraterritorial authority to stop or to arrest the defendant nor
did Detective Lanergan have probable cause to justify fresh and continued
pursuit or a citizen's arrest.
[1][2]
Case law consistently uses a two‑prong standard when analyzing whether a
stop and arrest is lawful. The first
prong examines whether the initiation of the investigation was permissible in
the circumstances, and then, the second prong examines whether the scope of the
search was justified by the [414
Mass. 599] circumstances.
Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895
(1974). Police officers have a right to
"stop a vehicle in order to conduct a threshold inquiry if [they have] a
reasonable suspicion that the occupants have committed, are committing, or are
about to commit, a crime. [This]
suspicion must be based on specific, articulable facts and reasonable
inferences drawn therefrom. A hunch will
not suffice." Commonwealth v. Moses, 408 Mass. 136,
140, 557 N.E.2d 14 (1990), quoting
Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). See
Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968);
Commonwealth v. Silva, supra 366 Mass. at 405‑406, 318 N.E.2d
895. Objectively viewing the evidence,
Detective Lanergan had probable cause to believe, absent any indication
otherwise, that the driver of the automobile was also the owner, who was wanted
for serious felony charges. This
provided the detective with reasonable cause to stop the defendant to conduct a
threshold investigation. Commonwealth v. Ortiz, 376 Mass. 349,
354, 380 N.E.2d 669 (1978).
[3][4][5]
The defendant argues that, even if the investigative inquiry was justified, the
detective was beyond his jurisdictional authority and powerless to stop and
arrest the defendant absent an arrest warrant.
While a police officer's powers to execute an arrest warrant are State‑wide, Commonwealth v. Kerr, 409 Mass. 284,
286, 565 N.E.2d 1201 (1991), citing
Commonwealth v. Martin, 98 Mass. 4 (1867), the power to arrest without a
warrant is limited to the officer's governmental unit unless he is in fresh and
continued pursuit. See Commonwealth v. Grise, 398 Mass. 247,
249, 496 N.E.2d 162 (1986); G.L. c. 41,
§ 98A (1990 ed.). See also Commonwealth v. LeBlanc, 407 Mass. 70,
72‑73, 551 N.E.2d 906 (1990); Commonwealth v. O'Hara, 30 Mass.App.Ct.
608, 610, 571 N.E.2d 51 (1991). General
Laws c. 41, § 98A, provides that:
"A police officer of a city or town who is empowered to make arrests
within a city or town may, on fresh and continued pursuit, exercise such
authority in any other city or town for any offence committed in his presence
within his jurisdiction for which he would have the right to arrest within his
jurisdiction without a warrant."
Detective Lanergan was within his jurisdiction when he received the
information regarding the outstanding warrant.
He therefore had reason to believe that [414 Mass. 600] the
suspect had committed an arrestable offense when he began his pursuit. See
Commonwealth v. LeBlanc, supra 407 Mass. at 73, 551 N.E.2d 906. The fact that the officer may have
subjectively intended only to make an investigative stop is immaterial as long
as probable cause to arrest existed. Commonwealth v. Gullick, 386 Mass. 278,
284, 435 N.E.2d 348 (1982). The fresh
pursuit statute provided a legal basis for the stop of the defendant, and it is
therefore unnecessary for us to reach the question whether the arrest of the
defendant was valid as a citizen's arrest.
See Commonwealth v. Gullick, supra
at 282, 435 N.E.2d 348, citing
Commonwealth v. Harris, 11 Mass.App.Ct. 165, 415 N.E.2d 216 (1981).
[6][7][8]
Turning to an examination of the scope of the search, we find that it was
within constitutional limits. If a reasonably
prudent police officer believes his safety or the public's safety is in danger,
regardless of probable cause to arrest, he is warranted in conducting a search
to discover weapons or other hidden instruments that could be used for assault. See Commonwealth v. Robbins, 407 Mass. 147,
151, 552 N.E.2d 77 (1990); Commonwealth v. Almeida, 373 Mass. 266,
271, 366 N.E.2d 756 (1977); Commonwealth v. Silva, supra 366 Mass. at
408, 318 N.E.2d 895; Commonwealth v. Matthews, 355 Mass. 378,
381, 244 N.E.2d 908 (1969). Detective
Lanergan had sufficient reason to believe he could be confronting a dangerous
felon based on the reported outstanding warrant for serious felony charges for
the owner of the Cadillac. As a
precaution, he would be warranted, when faced with a suspected potentially
armed and dangerous felon to conduct a limited pat‑down search to ensure
his safety. Once Detective Lanergan
discovered the illegally possessed revolver, he had probable cause to arrest
the defendant, Commonwealth v. Ballou, 350 Mass. 751,
756, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17
L.Ed.2d 679 (1967), and privilege to search further. Commonwealth v. Silva, supra
366 Mass. at 408, 318 N.E.2d 895. After
seizing the revolver, the detective discovered that the defendant possessed
ammunition that did not match the revolver, creating a suspicion that the
defendant possessed other weapons.
Discovery of an illegally possessed firearm and ammunition, which did not
match the weapon, gave the detective cause to search the vehicle for other
concealed objects. Commonwealth v. Jimenez, 22 [414 Mass. 601] Mass.App.Ct. 286, 290‑291, 493 N.E.2d 501 (1986), citing
United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72
L.Ed.2d 572 (1982).
[9] 2.
Exclusion of the defendant from voir dire of prospective jurors. The defendant contends that the judge
violated his constitutional rights guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights when he denied the defendant's request to be present at
sidebar voir dire of individual prospective jurors, thereby mandating the
reversal of his convictions. During the
empanelment process the judge initially addressed the entire venire in
accordance with G.L. c. 234, § 28 (1990 ed.), in open court, describing the
nature of the case and querying whether any of the prospective jurors
knew or was related to anyone involved in the case, or had formed any opinions,
bias, or prejudice about the case. The
judge then explained the rules of law pertaining to the presumption of
innocence, and the burden on the Commonwealth to prove guilt beyond a
reasonable doubt. He further informed
the panel that the defendant was not required to take the stand or to present
any evidence on his own behalf. Then the
judge conducted individual voir dire at sidebar. The individual voir dire inquired whether: the race of the defendant, who is black,
would affect the juror's deliberation;
testimony by a police officer would be more credible than that of
another witness; the fact that the case
involved drugs and guns would make it difficult for them to render an impartial
verdict; and if given a choice, the
juror would prefer not to serve on the case.
After the sidebar voir dire commenced, the judge denied defense
counsel's request for the defendant to be present at sidebar stating that the
defendant was represented by competent counsel and his presence could
intimidate the jurors. (FN2) During the seating of the first fourteen
jurors, six were excused for cause without objection based on their response to
the questions. Defense counsel conferred
with the defendant prior to the exercise of any peremptory [414 Mass. 602]
challenges. Then the prosecutor struck
three of the initial fourteen. The
following voir dire to select replacements excused four more for cause without
objection. After the prosecutor declared
satisfaction, defense counsel exercised four of his peremptory challenges. After the jurors were replaced, defense
counsel conferred again with the defendant subsequently declaring his
satisfaction. The prosecutor challenged
one of the newly seated jurors. Neither
side struck the chosen substitute and the case proceeded.
[10][11]
It is clear that a defendant is entitled to be present at all critical stages
of a criminal proceeding from arraignment to sentence. See
Commonwealth v. Bergstrom, 402 Mass. 534, 543, 524 N.E.2d 366 (1988). See also Mass.R.Crim.P. 18(a), 378 Mass. 887
(1979) (defendant "entitled to be present at all critical stages of the
proceedings"). Article 12
states: "And every subject shall
have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to
face, and to be fully heard in his defence by himself, or his counsel, at his
election." The defendant's
personal presence is essential at trial which "commences at least from the
time when the work of empanelling the jury begins." Hopt v. Utah, 110 U.S. 574,
578, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884).
A defendant has a right to be present when jurors are being examined in
order to aid his counsel in the selection of jurors and in the exercise of his
peremptory challenges. Lewis v. United States, 146 U.S. 370,
373, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892).
It is "improper to deny to a defendant the privilege of being
present at a voir dire, if an appropriate request for his presence is
made." Amado v. Commonwealth, 349 Mass. 716,
721, 212 N.E.2d 205 (1965) (voir dire of witness on the subject of
voluntariness of defendant's statements in police station). While the Commonwealth acknowledges that
exclusion of [414 Mass. 603] the defendant from the voir dire was
error, it argues that reversal of the convictions is not automatic. (FN3)
[12]
Exclusion of the defendant from communications between the judge and the jury
may not mandate a new trial if it is shown that the error is "harmless
beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24,
87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (constitutional error does not
automatically require reversal of conviction, instead harmless error analysis
is applied). See Arizona v. Fulminante, 499 U.S. 279, ‑‑‑‑,
111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991) (most constitutional errors can be
harmless beyond a reasonable doubt); Lufkins v. Leapley, 965 F.2d 1477, 1480
(8th Cir.1992) (constitutional errors during course of trial assessed with
other evidence to determine whether the trial error was harmless beyond a
reasonable doubt); Rushen v. Spain, 464 U.S. 114, 118‑120,
104 S.Ct. 453, 455‑56, 78 L.Ed.2d 267 (1983) (ex parte communication
between judge and jury does not constitutionally require reversal of conviction
if error harmless); United States v. Alessandrello, 637 F.2d
131, 143‑144 (3rd Cir.1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031,
68 L.Ed.2d 334 (1981) (absence of defendant from voir dire not subject to per
se rule of automatic reversal, totality of circumstances must be examined to
determine whether error harmless); United States v. Washington, 705 F.2d
489, 497‑498 (D.C.Cir.1983) (when defendant's request to be present
denied, assess whether error harmless beyond reasonable doubt to exclude
defendant after request from voir dire at which counsel participated); Young
v. United States, 478 A.2d 287, 290 (D.C.1984) (to prevent reversal of
conviction, must show exclusion of defendant from voir dire harmless error
beyond a reasonable doubt); State v. Payne, 328 N.C. 377, 388, 402
S.E.2d 582 (1991) (violation of defendant's constitutional right to be present [414 Mass. 604] subject to harmless error analysis); Wesley v. State, 749 S.W.2d
933, 934‑935 (Tex.Ct.App.1988) (defendant failed to show that his absence
from portion of voir dire, at which counsel participated, resulted in any
prejudicial injury). Cf. Robinson v. United States, 448 A.2d
853, 855‑856 (D.C.1982) (on request, defendant should be allowed to
participate in voir dire, but reversal not per se required). See also Annot., 33 A.L.R. 4th 429, §§ 2, 6,
and 7 (1984 & Supp.1992).
Our
decisions have utilized a similar approach in deciding whether constitutional
violations require reversal. See Commonwealth v. Martino, 412 Mass. 267,
286, 588 N.E.2d 651 (1992) (defendant's absence from communications between
judge and jury does not constitute per se reversible error);
Commonwealth v. Bobilin, 25 Mass.App.Ct. 410, 415, 519 N.E.2d 1349
(1988) (defendant's absence from communication between judge and jury about
administrative matters did not pose a risk of miscarriage of justice);
Commonwealth v. Hicks, 22 Mass.App.Ct. 139, 147, 491 N.E.2d 651
(1986) (judge's interrogation of jurors in defendant's absence regarding
newspaper article harmless error).
[13] We
have also ruled that the defendant's presence is not required at pretrial
motions for changes of venue or continuances. Commonwealth v. Millen, 289
Mass. 441, 454, 194 N.E. 463 (1935). Nor
is the defendant's presence required at a hearing on a motion for a new trial, Commonwealth v. Costello, 121 Mass. 371,
372, (1876), at a proceeding conducted between the verdict and sentence, Commonwealth v. Cody, 165 Mass. 133,
138‑139, 42 N.E. 575 (1896), or at a jury view, see Snyder v. Massachusetts, 291 U.S. 97, 114, 54 S.Ct. 330, 335, 78
L.Ed. 674 (1934); Commonwealth v. Dascalakis, 246 Mass. 12,
31, 140 N.E. 470 (1923).
[14] This
court and the Appeals Court have ruled that exclusion of the defendant from
voir dire, over his objection, is reversible error when the communications
concern juror misconduct, Commonwealth v.
Robichaud, 358 Mass. 300, 303, 264 N.E.2d 374 (1970), or a deliberating
juror is discharged due to illness,
Commonwealth v. Perez, 30 Mass.App.Ct. 934, 935‑936, 569 N.E.2d 836
(1991), or when the record fails to establish that a juror's discharge was for
good cause, Commonwealth v. Connor,
392 Mass. 838, 842‑847, 467 N.E.2d 1340 (1984). If, however, there is no objection [414 Mass. 605] on the record to the defendant's exclusion, then the court
considers the issue waived and will
not address it on appeal. Commonwealth v. Martino, supra 412 Mass.
at 287, 588 N.E.2d 651. Commonwealth v. MacDonald (No. 1), 368
Mass. 395, 400, 333 N.E.2d 189 (1975). Commonwealth v. Hicks, supra 22
Mass.App.Ct. at 146‑147, 491 N.E.2d 651.
Here,
defense counsel conferred with the defendant on at least two occasions during
the voir dire and before the exercise of peremptory challenges. The defendant through his counsel failed to
exercise all of his peremptory challenges and expressed satisfaction with the
jury selected. There is no claim of
bias, prejudice, or improper influence on any of the jurors seated.
[15][16][17][18]
As the judge found, the defendant was well represented by adequate counsel who
participated fully during the voir dire and conferred with the defendant during
the proceedings. The defendant offers no
suggestion as to how he was prejudiced by the procedure, except for his
diminished capacity to observe jurors.
No presumptive prejudice arises from the defendant's difficulty in
observing the jurors during voir dire, since "the deprivation of an
opportunity for observing a prospective juror's demeanor lacks legal
significance." Commonwealth v. Campbell, 378 Mass. 680,
696, 393 N.E.2d 820 (1979). See Commonwealth v. Tracy, 27 Mass.App.Ct.
455, 465, 539 N.E.2d 1043 (1989) (deprivation of opportunity to observe
prospective juror's demeanor legally insignificant; defendant still retained unused peremptory
challenges); Commonwealth v. Fudge, 20 Mass.App.Ct.
382, 387‑389, 481 N.E.2d 199 (1985) (defendant failed to show injury from
empanelling process and retained peremptory challenges). Cf.
Commonwealth v. Brown, 395 Mass. 604, 605‑606, 481 N.E.2d 469 (1985)
(error to require defendant to exercise peremptory challenges before full jury
panel obtained); Commonwealth v. Susi, 394 Mass. 784, 789,
477 N.E.2d 995 (1985) (prejudicial diminution of peremptory challenges
constitutes reversible error); Commonwealth v. Wood, 389 Mass. 552, 564,
451 N.E.2d 714 (1983) (erroneous denial of proper peremptory challenge
reversible error). Whatever benefit the
defendant would gain from being within hearing range of the jurors' responses
during the voir dire was available to him through the presence of his counsel, [414 Mass. 606] who conferred with him during the examinations and prior to the
exercise of peremptory challenges. Amado v. Commonwealth, supra 349 Mass. at
721, 212 N.E.2d 205 (benefit of cross‑examination available to the
defendant through counsel's presence during voir dire). When a defendant is excluded from a trial
proceeding, the exclusion should be considered in relation to the whole
record. See United States v. Gagnon, 470 U.S. 522, 526‑527, 105 S.Ct.
1482, 1484, 84 L.Ed.2d 486 (1985); Snyder v. Massachusetts, supra 291 U.S.
at 115, 54 S.Ct. at 335. To require a
new trial in these circumstances, therefore, would mean that a per se rule of
prejudice exists in any instance of impairment of the defendant's right to be
present during voir dire. This we are
not inclined to do. Instead, we follow
those jurisdictions that apply the harmless error analysis. See
United States v. Washington, supra (despite impairment of defendant's
ability for direct observation and hearing of voir dire examinations, no
showing that it altered ability to exercise peremptory challenges or outcome of
trial);
United States v. Alessandrello, supra (no showing that exclusion of
defendant from voir dire affected outcome of trial); Young v. United States, supra
at 291 (no evidence provided that defendant's presence at bench voir dire would
have altered conviction); State v. Payne, supra 328 N.C. at 388,
402 S.E.2d 582 (no showing that defendant's presence at voir dire would have
resulted in different outcome). We
conclude that the error was harmless beyond a reasonable doubt.
[19] 3.
Constructive possession instructions. The defendant maintains that the
instructions on constructive possession were insufficient because they failed
to convey the concepts of knowledge, ability, and intent to control the illegal
drugs found in the automobile's trunk.
We set out the judge's charge pertaining to the possession of controlled
substances in the margin. (FN4)
[414 Mass. 607] [20][21] When assessing whether jury instructions are sufficient,
"we consider the charge in its entirety, to determine the 'probable
impact, appraised realistically ... upon the jury's factfinding function.'
"
Commonwealth v. Batchelder, 407 Mass. 752, 759, 555 N.E.2d 876
(1990), quoting Commonwealth v. Richards,
384 Mass. 396, 399‑400, 425 N.E.2d 305 (1981). Jury instructions must be construed as a
whole to prevent isolated misstatements or omissions from constituting
reversible error. See Commonwealth v. Campbell, 378 Mass.
680, 706, 393 N.E.2d 820 (1979). A judge
is not required to give jury instructions in the exact manner requested by the
defendant provided that the requested instruction is adequately covered. See
Commonwealth v. Lowe, 391 Mass. 97, 109, 461 N.E.2d 192 (1984);
Commonwealth v. Jones, 375 Mass. 349, 359, 377 N.E.2d 903 (1978).
The judge
correctly instructed that the jury must consider whether the defendant
possessed the drugs consciously, voluntarily, and purposely. There is no significant difference between
the words "purposely" and "intentionally." Thus the jury were instructed that the
Commonwealth's burden was to prove both knowledge and specific intent regarding
the drugs.
[22]
Constructive possession of a controlled substance requires proof that the
defendant had knowledge of the location of the illegal drugs plus the ability
and intent to exert dominion and control.
See Commonwealth v. Garcia,
409 Mass. 675, 686, 569 N.E.2d 385 (1991); Commonwealth v. Pratt, 407 Mass. 647,
651, 555 N.E.2d 559 (1990); Commonwealth v. Dinnall, 366 Mass. 165,
168‑169, 314 N.E.2d 903 (1974); Commonwealth v. Booker, 31 Mass.App.Ct.
435, 437, 578 N.E.2d 815 (1991); Commonwealth v. Arias, 29 Mass.App.Ct.
613, 618, 563 N.E.2d 1379 (1990), S.C.,
410 Mass. 1005, 572 N.E.2d 553 (1991); Commonwealth v. [414 Mass. 608]
Nichols, 4 Mass.App.Ct. 606, 613‑614, 356 N.E.2d 464 (1976). The instruction adequately informed the jury
of those requirements.
4. Jury instruction assessing witness
credibility. Although the defendant
asserts to the contrary, the judge's instruction did not focus on the defendant's
testimony or interest in the case.
Instead, the judge's instructions were general regarding common factors
the jury could consider in assessing the testimonial evidence including the
demeanor, frankness, intelligence, memory, motive, and objectivity of the
witnesses. We find no error in the
instruction. See Commonwealth v. Roderick, 411 Mass. 817, 821, 586 N.E.2d 967
(1992);
Commonwealth v. Ramos, 31 Mass.App.Ct. 362, 368‑369, 577
N.E.2d 1012 (1991).
[23] 5.
Duplicative conviction. The
defendant was convicted of both possession with intent to distribute heroin and
trafficking in heroin. As the parties
agree, possession with intent to distribute is a lesser included offense of the
trafficking offense and the defendant cannot be sentenced on both. See
Commonwealth v. Chappee, 397 Mass. 508, 523, 492 N.E.2d 719 (1986);
Morey v. Commonwealth, 108 Mass. 433, 434‑435 (1871). We affirm the trafficking conviction. The possession with intent to distribute
heroin conviction, which was placed on file, is vacated, and the indictment is
dismissed. The judgments of conviction
on the indictments before the court are affirmed.
So ordered.
(FN1.) The defendant was sentenced on the
trafficking in heroin charge to a term of from five years to five years and one
day at the Massachusetts Correctional Institution, Cedar Junction. On the firearms convictions, he was sentenced
to a term of from two and one half years to three years, to be served
concurrently.
(FN2.)
DEFENSE COUNSEL: "May I just make a
suggestion? I think because we're doing
this at side bar and there are people in the courtroom, I think the defendant
ought to be up here to hear the answers."
PROSECUTOR: "I'd object. We've never had a defendant during an
individual voir dire."
THE
JUDGE: "We have very competent
counsel representing the defendant. I
think it unnecessarily complicates things.
I also think it intimidates the jurors, and I don't want to do
that. For that reason, I'm going to
decline the request, but I'll note your objection."
(FN3.) The defendant argues that his right to
be present is constitutionally based on the Sixth and Fourteenth Amendments to
the United States Constitution and art. 12 of the Massachusetts Declaration of
Rights and that the right is so fundamental that it should not be subjected to
harmless error analysis. He does not
argue, however, that, because art. 12 affords greater protection in these
circumstances than that afforded by the Sixth and Fourteenth Amendments,
harmless error analysis is foreclosed.
That question is therefore not before us and we do not decide it.
(FN4.) The judge instructed the jury in
pertinent part: "So first of all,
you have to find out is there a controlled substance, secondly, did the
defendant possess it and did the defendant do so knowingly or
intentionally. By knowingly or
intentionally, I mean not accidentally, did the defendant possess a drug
consciously, voluntarily, and purposely and not because of ignorance, mistake
or accident, and did he possess it with intent to distribute it, sell it or
give it to others.
"When
we're talking about knowledge and when we're talking about intent, you may well
ask yourself how do you prove that. You
can't go inside somebody's mind. So the
best we can do to prove knowledge or to prove intent is to look at all the
circumstances at a particular time and then make reasonable inference from
those circumstances that the party did or did not knowingly, did or did not
intentionally possess it, did or did not possess a drug with intent to sell or
distribute it to others."