Commonwealth v. Gordon

• Docket Number: 22-P-825
• Decision Date: 08 November 2023
• Parties: COMMONWEALTH v. ELANA GORDON.
• Court: Appeals Court of Massachusetts

1

COMMONWEALTH
v.
ELANA GORDON.

No. 22-P-825

Appeals Court of Massachusetts

November 8, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted after a Superior Court jury trial of delivering a class B controlled substance to a prisoner (G. L. c. 268, § 28), the defendant appeals.^[1] She argues that the trial judge erred by admitting audio recordings of two jail calls between the defendant, who is an attorney, and Jassel Castillo, an inmate at the Plymouth County house of correction, and by permitting a substitute drug analyst to opine that a substance contained buprenorphine, a class B substance. The defendant further

2

contends that a substantial risk of a miscarriage of justice arose when correction officers testified that attorneys were prohibited from leaving paperwork with inmates, and when a State police trooper testified that the defendant's cell phone "had been reset." She also claims that her trial counsel was ineffective when he argued in closing that the defendant showed "terrible judgment" by delivering envelopes to an inmate, but did not know that they contained drugs. We affirm.

Background.

On May 3, 2018, Castillo made two phone calls from the Plymouth County house of correction to his sister, who added the defendant to each call, creating three-way calls. During those calls, Castillo instructed the defendant to visit Noah Bell, who was also an inmate at the house of correction, on the following day. Castillo told the defendant, "Don't call me down tomorrow." The defendant then asked Castillo, "What do I have this paperwork for?" and Castillo replied, "Just give it to him. He'll give it to me." Castillo also told the defendant, "Just come take care of this thing tomorrow."

The next day, May 4, 2018, the defendant went to the house of correction and met with Bell. During their meeting, she gave two manila envelopes to Bell. Afterwards, officers searched Bell and found in the envelopes sixty-one strips of Suboxone, which contains buprenorphine, a class B substance.

3

Police arrested the defendant and seized her cell phone. Attempting to search the cell phone, a State police trooper powered it on. The phone showed a welcome screen, indicating that it had been reset.

The defense theory was that the defendant did not know that the envelopes contained Suboxone. The defendant testified that she "had no idea" there was anything other than paperwork in the envelopes which she gave to Bell. Defense counsel argued in both opening and closing that the defendant "had no knowledge" that she was bringing drugs into the jail.

Discussion.

Jail calls.

The defendant argues that the judge erred in admitting the audio recordings of the two jail calls between the defendant, Castillo, and Castillo's sister. The defendant claims that the prejudicial impact of the jail calls substantially outweighed their probative value because in them she used obscenities.

The defendant moved in limine to exclude the jail calls, asserting that they were improper "character evidence."^[2] After the prosecutor explained that the jail calls showed the defendant's knowledge that she was delivering drugs to Bell, the

4

judge ruled to admit the jail calls. We conclude that the judge did not abuse his discretion in determining that the jail calls were probative "to prove a plan to bring drugs" into the house of correction.

A trial judge has "broad discretion" to determine whether "the risk of prejudice substantially outweighs the probative value of the evidence." Commonwealth v. Fan, 490 Mass. 433, 444 (2022). See Mass. G. Evid. § 403 (2023). A trial judge's evidentiary ruling is reversed only if the judge made "a clear error of judgment" which "falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge heard extensive argument from both parties regarding the admissibility of the jail calls, considered the representations of both parties as to the calls' contents, and properly instructed the jury to consider the statements of persons other than the defendant on the calls only as to "what knowledge [the defendant] would have and to give context to any statements that she made." In those circumstances, we discern no error in the judge's implicit determination that the probative value of the jail calls outweighed any prejudice to the defendant, and no abuse of discretion in their admission. See Commonwealth v. Gardner, 102 Mass.App.Ct. 299, 306-307 (2023).

5

The defendant argues that the judge did not conduct the balancing test to weigh the prejudicial effect of the jail calls evidence against their probative value because, as a result of technical difficulties, he did not listen to the jail calls before they were played for the jury. The judge relied on the prosecutor's offer of proof about the contents of the jail calls, which was accurate. Based on that offer of proof, the judge could exercise his discretion to admit the jail calls, which were not the sort of highly inflammatory evidence that a judge might be required to review first. Contrast Commonwealth v. Carey, 463 Mass. 378, 390-391 (2012) (judge should have viewed "highly inflammatory" video of strangulation before admitting it).

For the first time on appeal, the defendant argues that because the jail calls included her "swearing repeatedly and acting unprofessional," their prejudicial impact outweighed their probative value. Because the defendant did not object on those grounds or request that swear words be redacted, we doubt that she preserved that claim for appellate review. We need not resolve that doubt, because even if the defendant had objected on those grounds at trial, the judge would not have been required to rule that any resulting prejudice outweighed the probative value of the calls. See Commonwealth v. Rosa, 468 Mass. 231, 241-242 (2014) (jail call in which defendant used

6

racial epithet as term of familiarity not unduly prejudicial); Comm...