Commonwealth v. Fluellen, SJC-10429

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtCORDY, J
Citation456 Mass. 517,924 N.E.2d 713
Docket NumberSJC-10429
Decision Date16 April 2010

456 Mass. 517
924 N.E.2d 713

Jimmy Lee FLUELLEN, Jr.


Supreme Judicial Court of Massachusetts,

Argued Nov. 3, 2009.
Decided April 16, 2010.

924 N.E.2d 714


924 N.E.2d 715
Nadell Hill for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.



The defendant, Jimmy Lee Fluellen, Jr., was tried together with Anthony Green on charges of distributing cocaine, G.L. c. 94C, § 32A ( c ), and distributing cocaine within a school zone, G.L. c. 94C, § 32J. After the judge instructed the jury on the law of joint venture, they acquitted Green and convicted the defendant of both charges.

The defendant filed a timely appeal, and we granted his application for direct appellate review principally to consider whether the rule of consistency, a limited doctrine that we have applied to reverse certain types of inconsistent verdicts rendered against codefendants tried together, applies in the circumstances of this case. We hold that it does not. We also consider the defendant's claim that there was insufficient evidence to convict him of distribution because his intent was to purchase the drugs for personal consumption rather than to distribute them. We conclude that the defendant's claim has no merit. Finally, we consider the impact of the admission of certificates of analysis of the drugs recovered in this case. See Melendez-Diaz v. Massachusetts, --- U.S. ----, ----, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009); Griffith v. Kentucky, 479 U.S. 314, 322-323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (newly declared constitutional rules apply to cases pending on direct appeal). Because we conclude that the introduction of the certificates was not harmless beyond a reasonable doubt, we reverse the defendant's convictions and remand the case for a new trial consistent with this opinion.

Background. At trial, the Commonwealth offered the testimony of four witnesses from which the jury could have found the following facts. On June 25, 2006, an undercover police officer, Robert Diliddo, was parked in Brockton in an unmarked vehicle. His aim was to purchase narcotics with two specific twenty dollar bills that could be traced after an arrest. Diliddo made eye contact with the defendant, who approached Diliddo's vehicle and got into the passenger seat. Diliddo told the defendant that he wanted to buy forty dollars' worth of cocaine. The defendant replied that he only had twenty

924 N.E.2d 716
dollars' worth of “crack” cocaine on his person, wrapped in a gum wrapper. However, the defendant offered to contact someone who could provide Diliddo with additional cocaine. After handing Diliddo the cocaine in the gum wrapper, the defendant made a telephone call from Diliddo's cellular telephone. He then directed Diliddo to drive to a nearby location where the defendant said individuals sold cocaine.

During the drive, Diliddo handed the defendant two twenty dollar bills, holding on to the defendant's twenty dollars' worth of crack cocaine as collateral. When they arrived at the location, the defendant got out of the automobile and approached four males loitering on a corner. Green was in the group. The defendant spoke with Green and the two began haggling. According to Diliddo, it appeared that the defendant was attempting to obtain more cocaine for the forty dollars so that he could keep the surplus for himself. But Diliddo, growing nervous, shouted at the defendant to complete the transaction. The defendant complied, giving Green the money. Green then approached the passenger side of Diliddo's vehicle, leaned in, and spat two pieces of crack cocaine onto the floor of the vehicle.1 The transaction occurred 348 feet from the Keith School, which is a public school.

The defendant reentered the vehicle, retrieved the cocaine from the floor, and handed it to Diliddo. He also expressed his displeasure at Diliddo's interrupting his negotiation, claiming he could have gotten more cocaine for the money. Diliddo dropped the defendant off where they originally met and returned to him the gum wrapper of cocaine he had retained as collateral.

Diliddo then contacted other officers who proceeded to arrest the defendant, Green, and the three other males. The officers recovered the two twenty dollar bills (which had been previously photocopied by the police) from Green's person. A cellular telephone but no drugs was found during a search of Green. No cocaine or other drug trade paraphernalia were recovered from the defendant. The same was not true for the other three arrested males, from whom the officers recovered cash, cocaine, cellular telephones, and lists of customers' numbers.

During the presentation of its case, the Commonwealth introduced several exhibits, including the pieces of crack cocaine that were spit into the vehicle as well as the additional cocaine recovered from the other males. Certificates of analysis confirming that the drugs were, in fact, cocaine accompanied each of the exhibits. Neither the defendant nor his codefendant objected.

In his closing argument, the prosecutor told the jury that it was for them to determine whether the drugs recovered were cocaine. He made no reference to the certificates. In the judge's final instruction to the jury, she told them that the certificates were prima facie evidence that the drugs were cocaine but that it was for them to determine if the Commonwealth had carried its burden beyond a reasonable doubt.

Discussion. 1. Inconsistent verdicts. In this case, the Commonwealth sought to establish that the defendant engaged in a joint venture with his codefendant to distribute cocaine. Indeed, the judge instructed the jury to that effect, specifically directing their attention to the

924 N.E.2d 717
defendant and Green as the alleged joint venturers despite evidence that at least three other males had been arrested at the same time as Green.2 In these circumstances, the defendant argues that his convictions must be reversed because they are inconsistent with the jury's verdict of not guilty with respect to Green. At root, the defendant questions how one can be a joint venturer alone. See Commonwealth v. Benesch, 290 Mass. 125, 135, 194 N.E. 905 (1935) (“one cannot be a conspirator alone”).

“That breed of ‘inconsistent’ verdicts which is not allowed to stand under our cases is small,” Commonwealth v. Scott, 355 Mass. 471, 475, 245 N.E.2d 415 (1969), and we reverse inconsistent verdicts only in limited circumstances. We have applied the so-called “rule of consistency” to reverse convictions only where three elements are present: “a crime charged that by its nature requires a combination of individuals; a single trial of all the participants in that crime; and an acquittal of all but one of the participants.” Commonwealth v. Medeiros, 456 Mass. 52, 59, 921 N.E.2d 98 (2010). We have not applied the rule of consistency to inconsistent verdicts in joint venture trials (as we have to those in conspiracy trials), because the first element, a crime that requires a combination of individuals, is generally not satisfied.3,4

When evaluating whether a crime, by its nature, requires a combination of individuals, we consider whether the crime is defined by “the united act of two or more individuals.” Commonwealth v. Medeiros, supra at 59, 921 N.E.2d 98, quoting Commonwealth v. Slate, 77 Mass. 60, 11 Gray 60, 63 (1858). The “united act” requirement is met when the Commonwealth

924 N.E.2d 718
proves such a combination as an element of the crime charged, either because of the common-law definition of the crime or because the Legislature has required it. See Commonwealth v. Medeiros, supra at 60, 921 N.E.2d 98 (interpreting aggravated rape provision in G.L. c. 265, § 22 [ a ] ); Commonwealth v. Benesch, supra (interpreting conspiracy). Where a combination is required, our usual deference to a jury's inconsistent verdicts is outweighed by our concern that “the jury may have fundamentally misunderstood the nature of the crime charged and convicted the defendant even though the Commonwealth did not prove an essential element of the crime beyond a reasonable doubt.” Commonwealth v. Medeiros, supra at 59, 921 N.E.2d 98.

Joint venture liability is provided for in G.L. c. 274, § 2, but joint venture is neither a crime nor an element of a crime.5 Rather, a joint venturer is liable for his participation in the underlying substantive offense. See Commonwealth v. Zanetti, 454 Mass. 449, 466, 910 N.E.2d 869 (2009) (“to find the defendant guilty as a joint venturer, [the jury] must find that the Commonwealth has proved both the elements of the offense and the defendant's knowing participation in the offense”). The operation of the principles of joint venture does not transform the character of the underlying offense into one that requires the united action of multiple persons. No meeting of at least two minds is required to participate in the commission of the crime of drug distribution, charged here, unlike the crime of conspiracy, Commonwealth v. Benesch, supra, nor has the Legislature embedded therein a statutory element of concerted action.6 See Commonwealth v. Medeiros, supra at 60, 921 N.E.2d 98.

Moreover, inconsistent verdicts for joint venturers tried together does not undermine our deference to juries. “A finding of not guilty at a criminal trial can result from any number of factors having nothing to do with the defendant's

924 N.E.2d 719
actual guilt.” Commonwealth v. Cerveny, 387 Mass. 280, 285, 439 N.E.2d 754 (1982). In this case, the evidence of the defendant's participation in the distribution of cocaine was very strong, but the testimony that it was Green who spit the cocaine into Diliddo's vehicle, while sufficient to support a conviction, was conflicting. See note 1, supra; Commonwealth v. Robinson, 48 Mass.App.Ct. 329, 341, 720 N.E.2d 480...

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