COMMONWEALTH v. MERVEILLE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant was convicted of possession with intent to distribute heroin in violation of G. L. c. 94C, § 32 (a), with a subsequent offense penalty pursuant to G. L. c. 94C, § 32 (b), and was acquitted on two remaining charges.² On appeal, the defendant argues that the trial judge erred in allowing the Commonwealth to introduce testimony about an uncharged drug transaction that occurred immediately before the events underlying the charges on trial. We affirm.

On the morning in question, the Boston drug control unit observed the defendant engage in an interaction during which the officers believed the defendant sold narcotics to a third party. No charges were brought pertaining to this initial interaction and, after a motion in limine by the defendant, the trial judge initially excluded evidence pertaining to it. Immediately after the initial interaction police observed the defendant engage in a second transaction in an automated teller machine (ATM) vestibule. When the officers arrested the defendant he tossed away additional narcotics.

The decision to admit prior bad act evidence is committed to the “sound discretion of the trial judge and will not be disturbed by a reviewing court absent palpable error” (quotation omitted). Commonwealth v. McCowen, 458 Mass. 461, 478 (2010). While evidence of a defendant's prior bad acts may be inadmissible as propensity evidence, such evidence may be admissible to show “'motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation' ․ [so long as the] probative value is [not] outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014), quoting Commonwealth v. Walker, 460 Mass. 590, 613 (2011). See Mass. G. Evid. § 404(b)(2) (2019). Importantly, evidence “that otherwise may be inadmissible may become admissible where the defendant opens the door to its admission.” Commonwealth v. Quinn, 469 Mass. 641, 732-733 (2014).

Here, the defendant opened the door to testimony pertaining to the initial interaction during cross-examination of the Commonwealth's witness, Officer Latoya Gamble. Defense counsel began his cross-examination of Gamble by asking her three times if she had ever seen the defendant distribute drugs, to which she said she had. At sidebar, the judge warned defense counsel that he was “perilously close by [his] generalized questions as to what [Officer Gamble] observed” to opening the door to the excluded testimony. Still, defense counsel persisted, setting up a challenge to Gamble's credibility. Defense counsel was again warned by the judge that he needed to limit questions specific to the charged conduct, “not just generally.” Defense counsel then elicited testimony that Gamble had not seen the defendant's hands in the ATM vestibule.

Defense counsel's cross-examination did indeed open the door to evidence of the prior transaction. Defense counsel's questions would permit defense counsel to impeach Gamble's credibility by arguing that her answer that she saw the defendant distribute drugs that day was false because she also testified that she could not see the defendant's hands while he was huddled with another man in the ATM vestibule. As the trial judge indicated, if he had not permitted the Commonwealth to introduce this evidence, it would “destroy[ ] the ability of the Commonwealth to respond” to defense counsel's tactics. The Commonwealth then questioned Gamble on redirect to testify to the observation of the uncharged transaction prior to the interaction in the ATM vestibule. We discern no abuse of discretion. Here, “defense counsel invited a fuller explanation” of Gamble's testimony, McCowen, 458 Mass. at 479, and the prosecutor was permitted to respond. See id.

The trial judge acted within discretion by concluding that the evidence's probative value was not outweighed by the risk of unfair prejudice to the defendant, especially where, as here, the trial judge gave the jury a contemporaneous limiting instruction, and reiterated this instruction at the close of the case. Commonwealth v. Forte, 469 Mass. 469, 480-481 (2014) (limiting instructions can minimize risk of prejudicial effect). The prosecutor mentioned the first transaction once briefly in closing argument and otherwise focused on the events underlying the charged conduct.

Judgment affirmed.

FOOTNOTES

2.   Distribution of cocaine, in violation of G. L. c. 94C, § 32A (c), with a subsequent offense penalty pursuant to G. L. c. 94C, § 32A (d), and possession of cocaine with intent to distribute, in violation of G. L. c. 94C, § 32A (c), with a subsequent offense penalty pursuant to G. L. c. 94C, § 32A (d).