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14-P-645                                               Appeals Court

               COMMONWEALTH     vs.   MICHAEL BLANCHARD.


                              No. 14-P-645.

       Norfolk.        October 2, 2015. - November 12, 2015.

           Present:   Katzmann, Grainger, & Maldonado, JJ.


Practice, Criminal, Jury and jurors, Deliberation of jury,
     Instructions to jury, Voir dire, Mistrial, Confrontation of
     witnesses, Required finding. Constitutional Law, Jury,
     Confrontation of witnesses. Jury and Jurors. Evidence,
     Expert opinion, Cross-examination. Witness, Cross-
     examination. Firearms. License.



     Indictments found and returned in the Superior Court
Department on April 16, 2010.

    The cases were tried before Elizabeth M. Fahey, J.


     William S. Smith for the defendant.
     Pamela L. Alford, Assistant District Attorney (Gregory P.
Connor, Assistant District Attorney, with her) for the
Commonwealth.


    GRAINGER, J.      The defendant was convicted by a jury in

Superior Court of murder in the second degree, G. L. c. 265,

§ 1, and carrying a firearm without a license, G. L. c. 269,
                                                                     2


§ 10(a).1   On appeal, he asserts that the trial judge improperly

denied his motion for a mistrial, erred in admitting testimony

of a substitute medical examiner, erred in preventing his line

of questioning on cross-examination, and that there was

insufficient evidence to support the firearms conviction.       We

set forth the background of the case as it pertains to the

issues on appeal.

     Background.    After the jury had reached their verdicts, but

before they were announced, the prosecutor was informed by a

court officer that a white three-ring binder containing the

judge's copy of the motions in limine, including documents and

photographs excluded from trial and a complete unredacted set of

jail telephone call transcripts, had been delivered into the

jury deliberations room.2    The prosecutor alerted defense counsel

and, after reviewing the binder together, they recognized that

it was not in evidence.     Outside the presence of the jury,

counsel then brought this matter to the attention of the judge.

The judge noted that the binder was not intended to be submitted

to the jury.   Upon inquiry, it was discovered that the binder

     1
       The defendant was found not guilty on an indictment
charging armed assault with intent to murder.
     2
       The binder contained transcripts of conversations between
the defendant and his family about the fact that the family had
to mortgage their house to pay for defense counsel,
conversations about miscarriages the defendant's girl friend
had, and about other drug use.
                                                                   3


had been inadvertently included with the exhibits brought over

to the jury room.   The judge stated to counsel:    "I would be

shocked if I don't have to declare a mistrial if [the jury] did

review it."

     The judge then conducted individual voir dire examinations

of each juror about the binder in accordance with Commonwealth

v. Mejia, 461 Mass. 384, 393-396 (2012) (Mejia).3    Several jurors

recalled having looked through the binder during deliberations.

The foreperson thought the binder was not "really material to

the discussion of [their] reaching a verdict."     Each juror

affirmed the ability to disregard the contents of the binder and

reach the verdicts based only on the evidence at trial and the

judge's instructions on the law.

     The judge did not look at the initial jury verdict slips

and impounded them.4   She supplied the jury with new verdict

slips, and they were instructed to resume deliberations.


     3
       The judge asked each juror if he or she had seen the
binder in question and, if so, to what extent, and if he or she
would be able to disregard the contents of the binder when
continuing deliberations. The judge did not inquire about the
role of the binder materials in the jury's deliberations to that
point. See Commonwealth v. Fidler, 377 Mass. 192, 198 (1979)
("[J]uror testimony concerning the existence of extraneous
influences does not . . . unduly intrude on jury
deliberations").
     4
       The Commonwealth subsequently moved that the initial
verdict slips be destroyed; the defendant did not oppose the
motion, and the judge allowed it.
                                                                    4


     Discussion.    Extraneous information introduced to the jury

room.    If a judge "determines that the jury may have been

exposed during the course of trial to material that 'goes beyond

the record and raises a serious question of possible prejudice'

[the judge] should conduct a voir dire examination of jurors to

ascertain the extent of their exposure to the extraneous

material and to assess its prejudicial effect."    Mejia, supra at

394, quoting from Commonwealth v. Womack, 457 Mass. 268, 280

(2010).    A judge, however, may not receive any evidence

"concerning the subjective mental processes of jurors" for this

would involve probing the juror's thought processes.5

Commonwealth v. Fidler, 377 Mass. 192, 196 (1979) (Fidler).

     The foreperson's remark that the binder was "not really

material" crossed the permissible line from a description of

improper influences to an assessment of their impact on the jury

deliberations.    Had the judge approved the verdicts on that

basis we would be confronted with reversible error.     However,

during her voir dire, and in addition to determining that there

had been no prejudice, the judge correctly ascertained the

jury's ability to decide the case on properly admitted evidence

alone, and ordered the jury to redeliberate without considering

     5
       As Fidler acknowledges, "We recognize that the line
between overt factors and matters resting in a juror's
consciousness is not easily drawn, and difficult cases will
arise." Id. at 198.
                                                                      5


any of the materials in the binder.6   "Jurors are presumed to

follow a judge's instructions, including instructions to

disregard certain testimony."   Commonwealth v. Caldwell, 459

Mass. 271, 278 (2011), quoting from Commonwealth v. Vallejo, 455

Mass. 72, 78 (2009).

     We therefore view this case as presenting a somewhat

distinct issue from that presented in Fidler and its progeny,

which involved inquiries after verdicts had been announced.      By

sealing and then discarding whatever partial or final conclusion

the jury may have attained at the time the error was unearthed,

the judge removed the extraneous influence from consideration.

This record is closely analogous to Commonwealth v. Tennison,

440 Mass. 553 (2003), a case allowing, after deliberations had

begun, replacement of a single juror suspected of unauthorized

contact with one of the parties.

     "We review a judge's ruling that the jury remained

impartial and could disregard the extraneous information for an

abuse of discretion."   Mejia, supra at 395, quoting from

Commonwealth v. Womack, supra at 280-281.7   The judge acted


     6
       The jury's initial verdict slips were sealed and thus
invalidated as they were not "given and affirmed orally by the
jurors in open court." Commonwealth v. Tennison, 440 Mass. 553,
561 (2003).
     7
       The defendant moved for the transmittal of the binder to
this court, asserting it was "relevant and absolutely necessary"
to our consideration of this issue. We treat this motion as a
                                                                     6


within her discretion to determine that by instructing the jury

"to decide the entire case anew, [s]he eliminated any influence"

from the extraneous materials prospectively.   Commonwealth v.

Tennison, supra at 561.

    Admission of testimony of substitute medical examiner.

Because the medical examiner who conducted the autopsy was

unavailable for trial, a substitute medical examiner testified

in his place.   "A substitute medical examiner who did not

perform the autopsy may offer an opinion on the cause of death,

based on his review of an autopsy report by the medical examiner

who performed the autopsy and his review of the autopsy

photographs . . . [as well as offer] an expert opinion as to the

time that would have elapsed between injury and death, the force

required to inflict the injury, and the effect that certain

types of injuries would have upon a victim."   Commonwealth v.

Reavis, 465 Mass. 875, 883 (2013).   "A substitute medical

examiner may not, however, testify to facts in the underlying

autopsy report where that report has not been admitted."     Ibid.

    The record shows that the substitute expert's testimony on

the number of gunshot wounds was based on autopsy photographs

that were properly authenticated by a witness present at the


claim that the materials were sufficiently prejudicial to render
the judge's finding that the jury could disregard them as clear
error. We conclude from a review of the binder that it does not
support such a claim.
                                                                    7


autopsy.   At trial, the substitute medical examiner identified

the photographs which showed the entry and exit wounds.     The

substitute medical examiner was free to rely on admitted

photographs and "to describe what he . . . observe[d] in those

photographs."   Commonwealth v. DiPadova, 460 Mass. 424, 438 n.17

(2011).    There was no error in allowing such testimony.

     Cross-examination of victim's sister.    During the cross-

examination of the victim's sister, the defendant began

questioning her about certain cellular telephone text messages

she had received from the defendant.    The judge interpreted the

defendant's question as asking the witness "what the sender of

the message meant" and intervened sua sponte.8

     To determine whether the defendant's constitutional right

to confront witnesses against him has been violated, "we weigh

the materiality of the witness's direct testimony and the degree


     8
       Defense counsel began the relevant inquiry by quoting from
a text message received by the witness:

     Defense counsel: "'-- car. He did it with my own car.
And I don't care if the cops know who killed him.' What is that
in reference to in November of 2009?"
     The judge: "How can she say that?"
     Defense counsel: "Well, because this --"
     The judge: "That's for the jury."
     Defense counsel: "Well, I'm asking her. It's a text that
she received. And -- and I'm asking --"
     The judge: "You're asking her, in effect, what the sender
of that message meant. And that's not for her to conclude."
     Defense counsel: "Can I ask her if she -- if she knows
anything about what's referring to a car?"
     The judge: "You can't ask her what the sender meant."
                                                                     8


of the restriction on cross-examination."    Commonwealth v.

Miles, 420 Mass. 67, 72 (1995).   We note that "a witness may

testify only to facts that she has observed and may not give an

inference or opinion based upon those facts."   Olson v. Ela, 8

Mass. App. Ct. 165, 167 (1979).

    There is no evidentiary basis to conclude that the witness

had personal knowledge about the underlying meaning of the text

message.   The witness testified that she had limited

communications with the defendant in the months prior to

receiving the text messages, and stated "I don't really recall

what was said during that conversation" when asked about a text

sent earlier that same day.   "[T]he extent of cross-examination

is generally within the control of the trial judge."    McElwain

v. Capotosto, 332 Mass. 1, 3 (1954).   Absent personal knowledge

of the witness, the judge did not err in preventing the

defendant from further questioning.

    Insufficiency of the evidence on the conviction of

possession of a firearm without a license.   The defendant

acknowledges that the Commonwealth does not have the burden to

produce evidence of the defendant's lack of gun licensure.     See

Commonwealth v. Gouse, 461 Mass. 787, 804 (2012).   Licensure is

an affirmative defense, which the defendant must raise; the

Commonwealth only needs to "prove the absence of properly raised

affirmative defenses."   Ibid., quoting from Commonwealth v.
                                                                  9


Cabral, 443 Mass. 171, 178 n.15 (2005).   The defendant made no

proffer respecting licensure; the judge properly denied the

defendant's motion for a required finding.

                                   Judgments affirmed.
