Commonwealth v. PIXLEY

• Decision Date: 09 September 2010
• Docket Number: No. 07-P-1976.,07-P-1976.
• Citation: 933 N.E.2d 645,77 Mass.App.Ct. 624
• Parties: COMMONWEALTH v. Marcus PIXLEY.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 624

933 N.E.2d 645

COMMONWEALTH

v.Marcus PIXLEY.

No. 07-P-1976.

Appeals Court of Massachusetts.Suffolk.

Argued May 17, 2010.

Decided Sept. 9, 2010.

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COPYRIGHT MATERIAL OMITTED.

Jane E. Ross for the defendant.

Andrew R. Thomson (Joseph M. Ditkoff, Assistant District Attorney, with him), for the Commonwealth.

Present: CYPHER, MEADE, & MILKEY, JJ.

MEADE, J.

A jury convicted the defendant of distribution of cocaine in violation of G.L. c. 94C, § 32A( c ), and of doing so in a school zone in violation of G.L. c. 94C, § 32J. In a separate bench trial, the defendant was also convicted of being a habitual criminal in violation of G.L. c. 279, § 25, and of second offense distribution in violation of G.L. c. 94C, § 32A( d ). ¹

On appeal, the defendant claims that (1) the judge erred in holding an in camera hearing to determine the validity of a defense witness's claim of privilege under the Fifth Amendment to the United States Constitution, (2) the evidence was insufficient to establish that University High School (UHS) was a secondary school, (3) testimony regarding money used to purchase narcotics should have been excluded because the money itself was not in evidence, (4) the admission of the certificate of drug analysis without testimony from the analyst violated his rights under the Sixth Amendment to the United States Constitution, and (5) that the judge erred in failing to properly instruct the jury on the school zone charge. We reverse.

1. Background. From the evidence at trial, the jury were entitled to find the following. On March 2, 2005, Everett police Officer Richard Connor and Middlesex County Deputy Sheriff Meaghan Leary, both working undercover, entered a McDonald's restaurant in Boston. The defendant and Dwayne Gillum also entered the restaurant, and Gillum told the undercover officers to sit down at a small table. Moments later, the defendant sat down at a table behind them. Connor told the defendant that he had forty dollars, and the defendant responded, “My boy will hook you up.” The defendant walked over to Gillum, and both men returned together and sat down. The defendant said, “Give me the money.” Connor gave two twenty dollar bills (with prerecorded serial numbers) to the defendant, who handed them to Gillum. Gillum in turn gave a plastic bag to the defendant, who handed it to Connor. The defendant and Gillum left the restaurant in different directions and were arrested by Boston police officers shortly thereafter. In his right hand, Gillum still held the forty dollars given to him by Connor. The plastic bag contained two pieces of “crack” cocaine. Connor and Leary identified both the defendant and Gillum at the time of their arrests. The drug transaction was also recorded by the McDonald's security cameras, and the recording was later played for the jury.

Gillum pleaded guilty to two charges of distribution of cocaine, distribution in a school zone, and conspiracy. The defendant summonsed Gillum to testify as a defense witness during the defendant's jury trial on the drug distribution and school zone charges. The defendant anticipated that Gillum would offer testimony that would contradict the Commonwealth's version of what transpired at the McDonald's restaurant. Gillum was appointed counsel, who informed the judge that Gillum would invoke his privilege against self-incrimination. The judge held an in camera hearing at Gillum's counsel's request and determined that Gillum had a valid Fifth Amendment privilege.

2. Fifth Amendment issue. The defendant claims the judge erred in holding a hearing in camera to determine the validity of Gillum's Fifth Amendment privilege claim. Instead, he argues that the judge should have conducted a particularized inquiry in open court to determine the validity of Gillum's claim of privilege and that such an inquiry should have been done on a question-by-question basis.

The Fifth Amendment's privilege against compulsory self-incrimination provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. 5. See Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Mass. G. Evid. § 511(b) (2010). Where a witness is called to testify but invokes the privilege against self-incrimination, the witness will not be forced to testify unless it is “ ‘ perfectly clear, from a careful consideration of all the circumstances in the case ... that the answer[s] cannot possibly have such tendency’ to incriminate (emphasis in original).” Commonwealth v. Martin, 423 Mass. 496, 502, 668 N.E.2d 825 (1996), quoting from Commonwealth v. Funches, 379 Mass. 283, 289, 397 N.E.2d 1097 (1979). The “privilege extends not only to [a witness's] answers that would in themselves support a conviction, but also to those that would furnish a link in the chain of evidence needed to prosecute the witness.” Commonwealth v. Freeman, 442 Mass. 779, 785, 817 N.E.2d 727 (2004). ²

When a witness, directly or through counsel, informs the judge that he would exercise his Fifth Amendment privilege against self-incrimination, the judge is required to “make an informed determination [as to] whether the witness has established a real risk that his testimony could possibly tend to incriminate him.” Pixley v. Commonwealth, 453 Mass. 827, 832, 906 N.E.2d 320 (2009). Usually, this can be accomplished by the disclosure of information to the judge in open court. See Commonwealth v. Martin, 423 Mass. at 504, 668 N.E.2d 825. In exceptional circumstances, the information made available to the judge in open court will not be adequate to permit the judge to assess the validity of the asserted privilege. When this is the case, the judge may conduct an in camera hearing with the witness and the witness's counsel at which the witness will be required to disclose enough additional information to permit the judge to make the determination. Commonwealth v. Martin, supra; Pixley v. Commonwealth, supra at 833, 906 N.E.2d 320; Mass. G. Evid. § 511(b).

Here, through his counsel, Gillum informed the judge that he would exercise his Fifth Amendment privilege. With this notice, the judge made a limited inquiry of the prosecutor as to what crimes Gillum had been convicted of for his role in the incident at the McDonald's restaurant on March 2. The prosecutor informed the judge of the various crimes to which Gillum had pleaded guilty, and noted that an indictment which alleged a school zone violation had been dismissed. When the judge began to inquire as to which charges Gillum could still be placed in jeopardy, and could therefore claim a Fifth Amendment privilege, Gillum's counsel requested that further inquiry be conducted in camera. The judge agreed and conducted a Martin hearing. The defendant claims, in essence, that the judge jumped the gun by conducting an in camera inquiry without first attempting to gather more information in open court to permit her to make the “informed decision” about the claim of privilege. Even if this is true, based on our review of the transcript and what was later revealed in open court, as we explain below, we fail to see how the defendant suffered any prejudice.

Having reviewed the transcript of the in camera hearing, ³ we conclude that the hearing itself was properly conducted and that the witness had a valid claim of privilege. In considering whether the privilege against self-incrimination is validly asserted, the judge must consider “ ‘the possible incriminatory potential of each proposed question, or area ’ which may be explored (emphasis in original).” Commonwealth v. Freeman, 442 Mass. at 785, 817 N.E.2d 727, quoting from Commonwealth v. Martin, 423 Mass. at 502, 668 N.E.2d 825. In the course of the in camera hearing, two different areas of Gillum's potential criminal exposure were explored. One was accepted as a real risk and the other rejected. The judge further explored the possibility of permitting a question-by-question inquiry of Gillum, but concluded that the Commonwealth's cross-examination was where the danger for Gillum existed. The judge properly was concerned about the real possibility of having to strike Gillum's direct testimony if Gillum exercised the privilege on cross-examination, and having to declare a mistrial. Given these concerns and the undisclosed information we have reviewed, it was not an abuse of discretion for the judge to conclude that Gillum had a valid claim to the privilege.

After the in camera hearing, the judge announced that Gillum had a valid claim to the privilege. She further explained that she explored the possibility of conducting a question-by-question inquiry in order to provide the jury with some of his testimony. In the end, the judge determined that such an inquiry would not insulate Gillum from answering incriminating questions on cross-examination, that an invocation of the privilege on cross-examination would require that his direct testimony be struck and perhaps result in a mistrial. Despite this, the defendant claims that it was abuse of discretion for the judge not to conduct the question-by-question inquiry. We disagree.

The Supreme Judicial Court has clarified that a Martin hearing need not be conducted on a question-by-question basis. Rather, particularized questioning is only one manner to evaluate the assertion of the privilege; it may also be evaluated with respect to an “area” of questioning to be explored. Commonwealth v. Freeman, 442 Mass. at 785, 817 N.E.2d 727. A question-by-question inquiry was not necessary in the instant case because, as in Freeman, the judge properly ascertained the areas to which Gillum was refusing to testify. Had the judge allowed Gillum to refuse to answer the prosecutor's questions, his testimony would have been struck, and a mistrial risked.

Turning to what was revealed in open court, which is where the defendant claims the inquiry should have taken...