Opinion
No. 11–P–852.
2012-06-29
COMMONWEALTH v. Melffrin F. PEREZ–FERNANDEZ.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Upon review of the briefs, record appendix, and transcript, nothing has been made to appear that would cause us to reverse the defendant's convictions or denial of his motion for a new trial. We discern neither clear error nor a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624–625 n. 4 (1994) (discussing standard of review for ineffective assistance of counsel claims). Accordingly, we address the defendant's several claims of error in summary manner, merely citing relevant case law where appropriate.
1. Required finding. There was ample evidence from which the jury could reasonably infer that the defendant had distributed heroin. The defendant's principal reliance on Commonwealth v. O'Toole, 52 Mass.App.Ct. 183 (2001), is off the mark. We think the reasoning of Commonwealth v. Deane, 458 Mass. 43, 50 (2010), and the thoughtful analysis set out in Commonwealth v. Latney, 44 Mass.App.Ct. 423, 426 (1998), control this claim of error in material respects. 2. Observation of a narcotics transaction. The defendant's argument that the admission of testimony from two police officers that they believed they had seen a drug transaction involving the defendant was error creating a substantial risk of a miscarriage of justice is of no avail. Contrast Commonwealth v. Rivera, 425 Mass. 633, 644–645 (1997). In any event, this was not particularly significant evidence. See Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2003).
3. Bowden instruction. The defendant's attack on his defense counsel's failure to request a “so-called ‘Bowden’ “ instruction likewise is unavailing. See Commonwealth v. Bowden, 379 Mass. 472, 485–486 (1980). See also Commonwealth v. Williams, 439 Mass. 678, 687 (2003). The short answer is that the defendant has not met his burden of establishing that a request for such an instruction would have been allowed. See Commonwealth v. Anderson, 58 Mass.App.Ct. 117, 120–122, cert. denied, 540 U.S. 1009 (2003) (voluntary intoxication instruction).
4. Other claims of error. We have reviewed the defendant's other contention of ineffective assistance of counsel, as well as his claim that the judge's response to a jury question “stripped” the jury of its vital function, and find each one devoid of merit.
Judgments affirmed.
Order denying motion for new trial affirmed.