19 Mass. App. Ct. 40 | Mass. App. Ct. | 1984
The defendant, charged with two drug offenses, was tried in a joint trial with another, who was charged with seven drug offenses. No motion to sever was filed prior to trial or after the opening statements. In his appeal from his conviction of unlawful possession with intent to distribute marijuana (G. L. c. 94C, § 31), the defendant claims that the trial court erred: in denying his motions made during trial for relief from prejudicial joinder and for a mistrial; in admitting in evidence a statement made by his codefendant that he and the defendant were “partners”; in admitting in evidence other testimony characterized by the defendant as “previously undisclosed”; and in failing to give certain instructions or giving incorrect instructions. There was no error.
We will discuss the issues of severance, mistrial, and the admission of the “partner” statement together. In his opening,
No motion to sever was made by the defendant after the openings of the Commonwealth and the codefendant. The defendant made no opening at that time. Trial commenced. In the course of direct examination an undercover agent was asked about a conversation with the codefendant. The latter’s counsel objected, and a bench conference was held, at which time the defendant, too, objected. After hearing arguments of counsel, the judge ruled the evidence admissible, and both defendants moved for a mistrial. The undercover agent had previously testified that he was in the codefendant’s apartment on March 30, 1982, that the defendant had delivered marijuana to the apartment in response to a request, that the defendant had compared the quality of the marijuana then being sold to the agent with the quality of a previous sale, and that the codefendant had given the defendant a large portion of the proceeds of the present sale. The agent now testified that prior to giving the money to the codefendant he had asked the codefendant whom he should pay for the drugs, and the codefendant replied, “It doesn’t make any difference. We are partners.”
The defendant argues, citing Bruton v. United States, 391 U.S. 123 (1968), that this statement was not admissible and required a severance. There is here no Bruton problem. The codefendant took the stand and was subject to cross-examination.
Furthermore, in Bruton, see 391 U.S. at 128 n.3, the court emphasized it was concerned with a confession of the codefendant implicating the defendant which was “clearly inadmissible” against the defendant.
Even if there is not a constitutional deprivation, a defendant is entitled to a severance if he can show that “the prejudice resulting from a joint trial is so compelling that it prevents [him] from obtaining a fair trial.” Commonwealth v. Moran, 387 Mass, at 658. The defendant’s claims fall short on this ground as well. The “partner” statement does not come within the rare case where an appellate court will interfere “with a judge’s decision whether to bar a jury from considering relevant evidence for fear of prejudicial side effects.” Commonwealth v. Best, 381 Mass. 472, 495 (1980). The claim that the defendant
The failure seasonably to move to sever provides sufficient ground, in itself, for the judge’s denial of the defendant’s several motions. See Mass.R.Crim.P. 9(d)(2), 378 Mass. 860 (1979), and Reporters’ Notes thereto, Mass. Ann. Laws, Rules of Criminal Procedure at 433-434 (1980); Commonwealth v. DiPietro, 373 Mass. 369, 387-388 (1977); Commonwealth v. Jackson, 391 Mass. 749, 759 (1984). It also supports the Commonwealth’s suggestion that the defendant’s initial strategy was “to ride on the coattails” of the codefendant’s entrapment theory. Indeed, some of the defendant’s requests for instructions focused on this defense. A change in tactics in the course of trial does not permit unseasonable motions for severance. In any event, neither a showing of differences in trial strategies between the two defendants, see Commonwealth v. Moran, 387 Mass, at 658-659; Commonwealth v. Miller, 17 Mass. App. Ct. 991, 992 (1984), nor a showing that the case against the codefendant was stronger, see Commonwealth v. DiBlasio, 17 Mass. App. Ct. 1008, 1009 (1984), nor any other claim made here is sufficient for us to conclude that the trial judge abused his discretion in denying the motions for severance. See also Commonwealth v. Dickerson, 17 Mass. App. Ct. 960 (1983), and cases cited.
The denial of the defendant’s additional motion for severance, made orally after the admission of previously undisclosed testimony which the defendant claimed was prejudicial, was correct for the reasons stated in Commonwealth v. Costello, 392 Mass. 393, 398 (1984). The defendant neither showed how his case was prejudiced nor demonstrated how the granting of a new trial would substantially remedy such prejudice. Ibid. There was also no error in the admission of the testimony.
Judgment affirmed.
Confessions, such as the one involved in Bruton, made after the termination of a joint venture or conspiracy “are not admissible, as matter of State law.” Commonwealth v. Bongarzone, 390 Mass. 326, 340 n. 11 (1983).