Commonwealth v. Sepheus (Lawyers Weekly No. 10-087-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11380 COMMONWEALTH vs. CARL SEPHEUS. Hampden. January 7, 2014. ‑ May 19, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Practice, Criminal, Assistance of counsel, Confrontation of witnesses, Required finding. Constitutional Law, Assistance of counsel, Confrontation of witnesses. Due Process of Law, Assistance of counsel. Evidence, Expert opinion, Intent. Witness, Expert. Intent. Drug Paraphernalia. Indictment found and returned in the Superior Court Department on November 18, 2009. The case was heard by C. Brian McDonald, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Leslie H. Powers for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. SPINA, J. The defendant was convicted at a jury-waived trial of possession of cocaine with intent to distribute. G. L. c. 94C, § 32A (c). A divided panel of the Appeals Court affirmed the conviction. See Commonwealth v. Sepheus, 82 Mass. App. Ct. 765 (2012). We granted the defendant’s application for further appellate review. On appeal the defendant argues that (1) his motion for a required finding of not guilty should have been allowed as to the element of intent to distribute, (2) his right of confrontation under the Sixth Amendment to the United States Constitution was violated by the admission of hearsay evidence during cross-examination of the Commonwealth’s expert witness, and (3) counsel was ineffective for failing to move to strike a portion of the testimony of the Commonwealth’s expert witness. We conclude that the evidence was sufficient to warrant conviction of possession of cocaine with intent to distribute. We also conclude that there was no Sixth Amendment violation. However, we conclude that trial counsel was ineffective for failing to move to strike a portion of the testimony of the Commonwealth’s expert witness because it was nonresponsive. Had counsel so moved, the testimony should have been stricken and the motion for a required finding of not guilty should have been allowed as to so much of the indictment that alleges intent to distribute. The conviction must be reversed, but the defendant is entitled to a new trial because the Commonwealth may present the testimony of a witness whose statements were allegedly relied on by the Commonwealth’s expert. 1. Facts. We summarize the evidence […]