Defense Counsel's Failure to Move to Strike Portion of Expert's Testimony Leads to New Trial

June 9, 2014
By Parker Scheer LLP on June 9, 2014 11:01 AM |

On May 19, 2014, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Sepheus, reversed the conviction of a defendant convicted of possession of cocaine with intent to distribute, and determined the defendant is entitled to a new trial, because trial counsel was ineffective for failing to object to a portion of the Commonwealth's expert's testimony. The portion of the expert's testimony to which counsel did not object was the expert's response to questions counsel asked that allowed the expert to offer his own opinion as to the defendant's guilt.

The defendant was arrested on outstanding warrants in Springfield, MA on September 30, 2009. At the time of the arrest, the defendant was with another man, whom Springfield police observed perform what they believed to be a narcotics transaction. Both the defendant and the other man were arrested. Defendant was found in possession of three small bags of "crack" cocaine, weighing approximately 0.4 grams and packaged individually in the twisted-off corner of a sandwich bag, and $312 in currency. The defendant did not have in his possession a device to ingest the drug.

Detective John Wadlegger was involved in the search for and ultimate arrest of the defendant, and testified at trial that he and the other officers received information that the defendant was in the area, armed, and selling crack cocaine. This portion of Wadlegger's testimony was admitted solely for the purpose of explaining why Wadlegger was in the area. Wadlegger also testified that the method of packaging used by the defendant was consistent with the sale of the narcotic, each bag was worth about twenty dollars on the street, and a user of the drug usually carried a device to ingest the drug.

On cross-examination, Wadlegger conceded that he has arrested individuals for simple possession for possessing amounts similar to and greater than that possessed by the defendant, and that an average user could consume the amount seized in one to two hours. Importantly, the following exchange took place during cross-examination of Wadlegger:

Q.: "And there is nothing about the fact that it's three rocks that suggests to you that he's a dealer."

A.: "The manner in which it was packaged, our information about Mr. Sepheus, the area, the observations beforehand, and the way it's packaged, and the amount."

Q.: "Let me ask you this: Did you personally see Mr. Sepheus engage in narcotics transactions on September 30th of 2009?"

A.: "I did not, no."

Q.: "And so you're relying predominantly on information that was provided by outside sources."

A.: "Yes. From a reliable informant, correct."

Q.: "And the informant's name?"

A.: "I don't have that. It wasn't my informant."

Counsel neither moved to strike Wadlegger's non-responsive answer, nor did counsel move to strike the portion of Wadlegger's testimony where he said he relied on information obtained from a "reliable informant." The SJC determined the answers were "essentially an averment that the defendant was a dealer, [and] provided the evidence that allowed the judge properly to deny the motion for a required finding of not guilty."

The SJC found that trial counsel provided the defendant ineffective assistance because counsel should not have asked Wadlegger to "directly express his views of the defendant's guilt," and that if counsel had moved to strike Wadlegger's nonresponsive answer, the motion should have been allowed. If not for this portion of Wadlegger's testimony, the Commonwealth would have had to rely solely on the weak inference that buyers of narcotics generally possess an ingesting device, while sellers do not.

The defendant was not, however, entitled to a dismissal of the portion of the indictment that alleged intent to distribute, as the proper relief for an ineffective assistance claim is a new trial. Because the SJC found no error in the conviction for possession, the Commonwealth will have the opportunity on remand to either retry the defendant for possession with intent to distribute, or move to sentence the defendant on the lesser-included offense of possession. If the Commonwealth elects to retry the defendant, it may elect to call the informant to testify "to offer competent testimony that the defendant had been selling crack cocaine for purposes of supporting an inference that he intended to sell the three rocks of crack cocaine that he had on his person."