This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Roberto Zayas, appeals from his conviction of cocaine trafficking. The defendant argued that the judge erred by failing to inquire into one juror's background and by failing to provide instructions on a lesser included offense. The defendant also argues that defense counsel was ineffective.,, We affirm.
Lack of additional inquiry of juror.
The defendant argues that the judge erred by failing to inquire, after defense counsel's request, into juror number 11's potential bias. At the beginning of the jury empanelment process the judge asked the venire if anyone had an affiliation with the Middlesex County district attorney's office or the assistant district attorney who was prosecuting the case. No juror, including juror number 11, responded that he or she had such an affiliation. The judge also asked the venire, " Do you have any bias or prejudice for or against the Commonwealth or for or against the defendant?" No juror, including juror number 11, responded that he or she had such a bias or prejudice. After both the Commonwealth and the defense attorney exercised peremptory challenges, but before the jury was sworn, the defense counsel requested that the judge inquire into juror number 11's potential bias. He stated: " I might just want to make sure, if he has a lot of contact with the D.A.'s Office . . . I just want to make sure he can be objective."  The judge indicated that it was late to raise that concern. Defense counsel then asked about the inquiry being for cause. After the judge again declined to inquire, defense counsel indicated he was content with the jury.
Here, although the defense counsel mentioned " for cause," the request was for additional questioning of the juror, not for the juror to be excused for cause. " Where a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived." Commonwealth v. McCoy, 456 Mass. 838, 842, 926 N.E.2d 1143 (2010). Further, " [t]he scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Ibid., quoting from Commonwealth v. Lopes, 440 Mass. 731, 736, 802 N.E.2d 97 (2004). " A prospective juror who does not come forward in response to a judge's questioning of the full venire is '[impliedly representing] that he or she is not biased.'" Ibid., quoting from Commonwealth v. Duddie Ford, Inc., 409 Mass. 387, 393, 566 N.E.2d 1119 (1991). Failing to conduct an additional inquiry of this juror was not an abuse of discretion.
Lesser included offense.
The defendant requested that the judge provide an instruction on simple possession of cocaine, which " is a lesser included offense of trafficking." Commonwealth v. Wilson, 52 Mass.App.Ct. 411, 419, 754 N.E.2d 113 (2001). " As a general rule, the jury should receive an instruction on a particular offense where (1) the offense is, as a matter of law, a lesser included offense of the crime charged; and (2) the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Id. at 418-419. Here, the defense theory was that the defendant did not know that the package contained cocaine, not that he possessed it for personal use. Further, the Commonwealth's expert testified that 123 grams of cocaine in a car without " personal paraphernalia associated with the personal ingestion of cocaine" was more consistent with someone selling the cocaine. The defendant did not attempt to discredit this testimony on cross-examination. The evidence at trial did not place the " element differentiating the two crimes . . . sufficiently in dispute." Commonwealth v. Souza, 428 Mass. 478, 494, 702 N.E.2d 1167 (1998), quoting from Commonwealth v. Egerton, 396 Mass. 499, 504, 487 N.E.2d 481 (1986). The defendant's request for an instruction on simple possession of cocaine was properly denied.
Ineffective assistance of counsel.
The defendant argues that his trial counsel was ineffective. The defendant did not file a motion for new trial. " As a consequence, we will reverse the defendant's convictions only if the ineffectiveness 'appears indisputably on the trial record.'" Commonwealth v. Medeiros, 456 Mass. 52, 61, 921 N.E.2d 98 (2010), quoting from Commonwealth v. Zinser, 446 Mass. 807, 811, 847 N.E.2d 1095 (2006).
First, the defendant argues that trial counsel was ineffective because he made statements in his opening suggesting the defendant might testify. There is no basis on the trial record alone to conclude this was ineffective assistance of counsel.
See Commonwealth v. Duran, 435 Mass. 97, 110-111, 755 N.E.2d 260 (2001).
Second, the defendant argues that trial counsel was ineffective because he failed to object to various pieces of evidence. Failing to object to the improper testimony, which the judge struck from the record sua sponte, did not deprive the defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Furthermore, the other expert testimony the defendant now complains of was proper as admitted, and as a result, there was no reason to object. In addition, even assuming there was a reason to object to statements concerning children being near the school, the testimony was unrelated to a contested issue at trial, and failing to object to it did not deprive the defendant of a substantial ground of defense. See Ibid.
Finally, the issuance of the decision in Commonwealth v.Bradley, 466 Mass. 551, 998 N.E.2d 774 (2013), which resulted in the judge entering a required finding of not guilty on the school ...