Commonwealth v. Davis
| Decision Date | 08 May 2001 |
| Docket Number | P-1633 |
| Citation | 751 N.E.2d 420,52 Mass. App. Ct. 75 |
| Parties | (Mass.App.Ct. 2001) COMMONWEALTH vs. WADE DAVIS. 99- |
| Court | Appeals Court of Massachusetts |
County: Berkshire
Present: Brown, Jacobs, & McHugh, JJ.
Practice, Criminal, Instructions to jury, Agreement between prosecutor and witness. Witness, Credibility, Immunity.
Indictment found and returned in the Superior Court Department on October 2, 1998.
The case was tried before Elizabeth B. Donovan, J.
Julie Ann Boyden for the defendant.
Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.
The defendant was convicted by a Superior Court jury of distribution of cocaine. G. L. c. 94C, § 32A. We conclude that the erroneous answer supplied by the trial judge to a jury question created a substantial risk of a miscarriage of justice. We reverse the defendant's conviction.
The defendant was convicted largely, if not solely, on the testimony of one Francis Thornton. Some time before the events that gave rise to the defendant's arrest, Thornton himself had been arrested for distribution of marijuana. In exchange for nonspecific "consideration" from the district attorney's office, Thornton had agreed to help police arrest others involved in the sale of illegal drugs.
On August 3, 1998, Officer Timothy Face, dressed in plainclothes, used Thornton to contact a reputed drug dealer known in criminal society as "K." Thornton apparently paged K, and asked to purchase some cocaine. In due course, the defendant turned up. However, no exchange of drugs occurred, apparently because the defendant did not trust Face.
A short time later, Thornton ostensibly paged K again, and arranged to meet him on a nearby street, this time without Face. Face gave Thornton $50 to make a drug purchase. According to Thornton's testimony, the defendant appeared at the appointed spot, and sold Thornton a small bag of cocaine. There were no witnesses to the transaction (other than Thornton) who could identify the defendant. Thornton surrendered the cocaine to police, and the defendant was arrested.1
At trial, the sole issue in dispute was Thornton's credibility. In the absence of any physical or other eyewitness evidence linking the defendant to the cocaine exchanged during the alleged sale, Thornton was the linchpin of the Commonwealth's case. During extensive cross-examination, defense counsel repeatedly emphasized the fact that Thornton faced serious pending charges, and so had a significant motive to lie in favor of the government. Thornton conceded on the stand that he expected "consideration" in exchange for testimony inculpating the defendant. Both the prosecutor and defense counsel made the issue of Thornton's veracity the centerpiece of their respective closing arguments.
Against this backdrop, the jury asked a single question: The judge, apparently without consulting either the prosecutor or defense counsel,2 simply stated that "[t]here are no laws of leniency, all right?" A recess was then taken, and shortly3 thereafter the jury returned with guilty verdicts.
The judge's response was fatally misleading. The law of the Commonwealth gives the executive branch of government virtually unlimited power to decide whether and how an alleged crime will be prosecuted. The law, therefore, would permit the government to drop all charges against Thornton if it so chose. Alternately, the government would be free to try Thornton for a lesser offense than that originally charged. Likewise, the law permits a defendant and prosecutor to submit, before trial, a joint recommendation for a sentence in exchange for a guilty plea. If the judge accepts the recommendation, it becomes the final disposition of the case. If not, the defendant is free to withdraw his plea and stand trial.
None of this was explained to the jury. The judge's inadequate answer left the clear impression that Thornton, in fact, had no basis for any realistic expectation of "consideration," i.e., that there was no mechanism in the law for mitigating the punishment Thornton would receive for his crimes, despite his assistance to the Commonwealth. That is materially misleading. The judge should have explained the options open to the Commonwealth for rewarding Thornton, as requested by the jury's question.4 By failing so to do, the jury improperly were led to believe that Thornton had no motive to lie, and that the "consideration" he had referred to in his testimony was trifling at best -- certainly no incentive for perjury.
Exacerbating the error here is the fact that the judge formulated his answer without any apparent contribution from the parties.5 A judge is required, whenever possible, to permit parties to suggest responses to jury questions, and lodge objections to perceived shortcomings.6 See Commonwealth v. Floyd P., 415 Mass. 826, 833 (1993); Commonwealth v. Baciqalupo, 49 Mass. App. Ct. 629, 633 (2000).
Also problematic is the fact that the judge here failed to instruct the jury that a witness's agreement to provide testimony in exchange for consideration with respect to pending charges does not constitute governmental endorsement of the witness's veracity. Absent such an instruction, the jury may well infer that the government's willingness to compensate a witness for testimony reflects the Commonwealth's endorsement of the veracity of the evidence.7 While the absence of a cautionary charge on this point does not in and of itself amount to reversible error, at least in the absence of any express vouching by a prosecutor, the omission nonetheless was improper. See Commonwealth v. Meuse, 423 Mass. 831, 832 (1996).8
Finally, we note that the government's case here was by no means overwhelming. It is entirely possible that Thornton, concerned that he did not produce results when he summoned the defendant on the first occasion, transacted a sale with a more reliable dealer on the second attempt. In the alternative, Thornton could have himself supplied the drugs recovered by police in order to curry favor with the authorities. Everything turned on Thornton's perceived veracity. The judge's misleading response to the lone jury question had significant potential to affect the credibility calculus. The defendant is entitled to a new trial. See Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 14...
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