COMMONWEALTH v. SWAINAMER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant, Jerilyn Swainamer, was convicted of possession with intent to distribute a class B substance under G. L. c. 94C, § 32A (a). She argues on appeal that the “fail[ure] to investigate the presence of an extraneous factor during the jury's deliberations, and its impact on their decision” constitute reversible error. We affirm.

Background. As part of the Commonwealth's case, the Commonwealth introduced in evidence a Barbasol shaving cream container that was found in the defendant's apartment. The can had a false bottom, and when it was discovered by police, it contained ninety-four bags of suspected narcotics.² Prior to deliberations, the judge informed the jury that the bottom of the can had been twisted by counsel and witnesses so many times that it had broken into two pieces.³ After the jury reached its verdict and was discharged and the defendant was sentenced, defense counsel observed that the can was then in three pieces. Upon closer inspection counsel saw white powder, which was observable for the first time, at the top of the interior of the can. Within moments, the testifying officer, who was still present, assured the judge that he had seen that type of can before and in his opinion the powdery substance was glue. Defense counsel raised the prospect that the powder may have affected the jury's deliberations.

A few days later, the defendant filed a motion for voir dire of each of the jurors to determine whether they considered the powdery substance during their deliberations. The judge denied the motion, concluding that the existence of the white powder did not meet the definition of “extraneous information,” and even if it did, it did not have an influence on the proceedings. The defendant timely appealed the judgment.⁴

Discussion. The defendant argues that the judge erred by concluding that the admission of the shaving cream can necessarily included anything and everything contained in the confines of the can. Instead, she contends that “[t]here is nothing about a can of Barbasol shaving cream, or a ‘hide’ built from a can of Barbasol shaving cream, that necessarily entails the presence of cocaine or fentanyl.” She also argues that the loose white powder constituted an “extraneous influence” on the jury because “the presence of this loose white powder ․ was immediately apparent to all present shortly after the jury's deliberations concluded.” We disagree.

“Generally, a postverdict inquiry of a juror may be conducted only if the court finds that extraneous matters became part of the jury's deliberations.” Commonwealth v. Murphy, 86 Mass. App. Ct. 118, 122 (2014), quoting Commonwealth v. Fidler, 377 Mass. 192, 193 (1979). For something to be considered an “extraneous matter,” it should “[involve] information not part of the evidence at trial ‘and [raise] a serious question of possible prejudice.’ ” Commonwealth v. Guisti, 434 Mass. 245, 251 (2001), quoting Commonwealth v. Kater, 432 Mass. 404, 414 (2000). The defendant bears the burden of demonstrating by a preponderance of the evidence that the jury were exposed to the extraneous matter. See Fidler, supra at 201. “[T]here must be something more than mere speculation.” Commonwealth v. Dixon, 395 Mass. 149, 152 (1985), quoting United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985).

Here, the entirety of the Barbasol shaving cream can was admitted in evidence. The defendant points to no authority where an item already in evidence was ruled to be extraneous, nor can we find support for the contention. As the judge noted, successful motions of this variety involve “specific facts not mentioned at trial concerning one of the parties or in the matter in litigation were brought to the attention of the deliberating jury.” Fidler, 377 Mass. at 200. The white powder cannot be considered an “extraneous matter” when it was part and parcel of the admitted physical evidence.⁵ As a result, the judge did not abuse his discretion denying the defendant's motion.⁶

Judgment affirmed.

Order denying postconviction motion to be furnished with contact information for all sitting jurors affirmed.

FOOTNOTES

2.   A forensic scientist testified at trial that the powder contained fentanyl, cocaine, and caffeine.

3.   The admitted evidence was inspected by counsel for both sides prior to going into the jury room.

4.   After the voir dire motion was denied, the defendant filed a motion to be furnished with contact information for all sitting jurors. That motion was denied after a hearing. The defendant filed a separate notice of appeal from that decision, and that appeal was consolidated with her appeal from the judgment.

5.   During the trial, the testifying officer stated that the can contained glue: “And then you can either twist the top of the bottom will come right off, like this, for example, this –- see the glue. This is glued, Judge.”

6.   We also agree with the judge that, assuming arguendo the powder did constitute an “extraneous matter,” there would be no prejudice where the Commonwealth had introduced a wealth of evidence that the can had held numerous bags of a powder mixture of fentanyl, cocaine, and caffeine. Even if the jury assumed the worst –- that the white powder was some mixture of illegal substances –- there would be no prejudice because it would only be cumulative of admitted evidence establishing the same fact. See Commonwealth v. Silva, 482 Mass. 275, 283 (2019) (“Information is not ‘extraneous’ when it is cumulative of evidence introduced at trial”). We also agree with the judge's conclusion that, because at trial an officer testified to the serious risks of coming into contact with fentanyl, if the jury were concerned about the powder they would have more likely than not notified the court.