Com. v. Claudio

• Decision Date: 03 August 1989
• Citation: 541 N.E.2d 993,405 Mass. 481
• Parties: COMMONWEALTH v. Gloria CLAUDIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 993

541 N.E.2d 993

405 Mass. 481

COMMONWEALTH v. Gloria CLAUDIO.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued May 1, 1989.

Decided Aug. 3, 1989.

Patricia A. O'Neill, Committee for Public Counsel Services, for defendant.

Cynthia A. Vincent, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

After a jury trial, the defendant was convicted of trafficking in heroin by knowingly or intentionally possessing with intent to manufacture, distribute, or dispense twenty-eight grams or more, but less than one hundred grams, of that substance. G.L. c. 94C, § 32E (c )(1) (1988 ed.). The Appeals Court affirmed the conviction. 26 Mass.App.Ct. 218, 525 N.E.2d 449 (1988). At the trial, the Commonwealth had introduced in evidence two certificates of chemical analysis performed by the Department of Public Health which reported that 1,095 plastic bags seized from the defendant's apartment contained 88.02 grams of heroin. In the Appeals Court, the defendant challenged the judge's jury instruction concerning the significance of the certificates. She also asserted that she did not receive effective assistance of counsel. After the Appeals Court rejected her argument, the defendant sought, and we granted, further appellate review solely with respect to the jury instruction question. We, too, affirm the conviction, although our reasoning departs to some degree from that of the Appeals Court.

The judge instructed the jury that "the burden of proof is upon the Commonwealth to prove beyond a reasonable doubt and to a moral certainty that the defendant is guilty of the crime with which she has been charged," and that "[t]here is no duty resting upon the defendant to prove or to establish her innocence.... The defendant is not required to put any evidence on or to do anything. The burden remains solely with the Commonwealth to prove its case beyond a reasonable doubt." However, the judge also charged the jury as follows: "The Commonwealth must prove beyond a reasonable doubt that the defendant trafficed in what? In heroin. So, they must prove that the drugs that you have and will have in the jury deliberation room as evidence are heroin or any mixture thereof. You will have with you analysis sheets. They're marked. They're exhibits. These constitute an analysis done, I believe by the Federal Drug Administration, but it'll tell you on the analysis sheet, and the weight. Those analysis sheets constitute as a matter of law what we call, 'prima facie evidence,' again a legal term. It simply means that there is a presumption that goes with those analysis sheets. The presumption is what it says on the analysis sheet, that it is heroin and in the weight produced. You must accept that presumption unless there is any evidence to the contrary to rebut that presumption. That's what prima facie evidence means. It carries with it a presumption that stands unless there is evidence to rebut that presumption. So, you have with you the analysis sheets and they constitute prima facie evidence, carrying the presumption that the drugs are heroin, and in the weight specified within those sheets."

Following her instruction concerning the certificates of analysis, the judge instructed that "the Commonwealth, in order to prove beyond a reasonable doubt the charge of trafficking, must prove that the net weight of the drugs fell within a category ... the category being a net weight of more than twenty-eight grams and less than 100 grams." Also, she stated, "if you find that the Commonwealth has not sustained its burden beyond a reasonable doubt ... as to the weight of the grams falling into the category that I told you, then you may consider whether or not the defendant is guilty of the lesser included offense [simple possession]."

The Appeals Court reasoned that, "[b]y requiring the defendant to produce evidence in order to rebut the presumption of the analysis sheets, the trial judge seemed to place the burden of production on the defendant as to an element of the offense charged.... Instructions which, through the use of a presumption, require a defendant to produce evidence in support of her innocence may tend to undermine the constitutional requirement that the Commonwealth must prove every element of a crime beyond a reasonable doubt." 26 Mass.App.Ct. at 219-220, 525 N.E.2d 449. The Appeals Court did not decide whether the instructions were constitutionally valid. Instead, recognizing that defense counsel had failed to object to the instruction, the court considered whether, even if the instruction was erroneous, it nevertheless was harmless beyond a reasonable doubt. Id. at 221, 525 N.E.2d 449. Reasoning that, at trial, the defendant had "admitted to possessing and selling heroin, and [that] defense counsel did not contest that the confiscated packets contained heroin," the Appeals Court concluded that any error in the instructions was harmless beyond a reasonable doubt and therefore was not reversible. Id.

In our view, a reasonable juror could have understood the jury instructions to mean either that the burden was on the defendant to prove that the bags did not contain 88.02 grams of heroin or that the certificates conclusively established that the bags did contain that amount. The instructions, therefore, were not correct. Since the defendant did not object at trial to the instructions, the question on review is whether the error created a substantial risk of a miscarriage of justice. Judging according to that standard, we conclude that the error does not require that the conviction be reversed. We explain below.

To determine the correctness of a jury instruction, it is appropriate first to consider how a reasonable juror could have understood it. Sandstrom v. Montana, 442 U.S. 510, 514, 524, 99 S.Ct. 2450, 2454, 2459, 61 L.Ed.2d 39 (1979). Commonwealth v. Pickles, 393 Mass. 775, 778, 473 N.E.2d 694 (1985). Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196 (1982). The judge told the jury that they must accept the presumption that the substance was heroin and its weight was as recorded in the certificates of analysis unless there was evidence to the contrary; that the presumption "stands unless there is evidence to rebut that presumption." "So," the judge said, "you have with you the analysis sheets and they constitute prima facie evidence, carrying the presumption that the drugs are heroin, and in the weight specified within the sheets." A reasonable juror could have interpreted the words, "[y]ou must accept that presumption unless there is any evidence to the contrary to rebut that presumption," as shifting the burden of proof to the defendant, that is, as requiring the jury to accept the accuracy of the certificates unless persuaded otherwise by the defendant. See Sandstrom v. Montana, supra 442 U.S. at 517, 99 S.Ct. at 2455; Mullaney v. Wilbur, 421 U.S. 684, 686, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508 (1975); Commonwealth v. Callahan, 380 Mass. 821, 824-825, 406 N.E.2d 385 (1980). We have referred to this burden-shifting principle as a "mandatory presumption." DeJoinville v. Commonwealth, 381 Mass. 246, 252, 408 N.E.2d 1353 (1980).

We think that it also would have been reasonable for a juror to interpret the judge's statement that the "analysis sheets ... constitute prima facie evidence, carrying the presumption that the drugs are heroin, and in the weight...