Commonwealth v. Mike Jonas.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1197

COMMONWEALTH

vs.

MIKE JONAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2021, following a jury trial in Superior Court, the

defendant was found guilty of unlawful possession of a class B

controlled substance (cocaine) with intent to distribute, in

violation of G. L. c. 94C, § 32A (c).1 In this consolidated

appeal, the defendant challenges: (1) the denial of a motion for

a new trial and a motion to reconsider based on newly discovered

evidence; (2) the denial of a motion to dismiss, asserting that

late disclosure of evidence required dismissal; and (3) his

conviction, claiming error in the failure to discharge a juror

after she was seated. We affirm.

1The defendant was also charged with unlawful distribution
of a class B controlled substance, to which he later pleaded
guilty.
Background. On March 2, 2020, units from the Massachusetts

State police and the Brockton police department conducted a drug

interdiction operation at the Stop and Gas on Warren Avenue in

the city of Brockton. During the operation, Trooper Paul

Dunderdale made an undercover, hand-to-hand purchase of cocaine

from the defendant. The operation included multiple officers in

unmarked vehicles who kept visual surveillance on Trooper

Dunderdale (spotters), as well as officers who stayed farther

away to identify suspects and make arrests (covers). One set of

spotters observed Trooper Dunderdale from about one hundred feet

away in the side parking lot of a supermarket, adjacent to the

Stop and Gas. Spotters observed that the defendant wore a dark

pinstriped hat, a black hooded sweatshirt, gray sweatpants, and

a pair of black sneakers. No one else during that period of

time and in that area matched the defendant's description. Just

before arresting him, spotters saw the defendant carrying a

pinstriped hat in his hand. During his arrest, officers found a

pocketknife, twenty-nine small bags of crack cocaine, and $2,340

in cash on the defendant. Among the cash found on the defendant

were two twenty-dollar bills which had been marked by police

prior to the operation by recording the serial numbers.

Discussion. 1. Posttrial disclosure of audio recording.

In 2023, the defendant filed his first brief in his direct

appeal. Shortly after, the Commonwealth disclosed and provided

2
to the defendant an audio recording made by the "Callyo"

application Trooper Dunderdale had used during the operation.

The relevant portions of the audio recording relate to

communications between Trooper Dunderdale and a cover officer

and are as follows.2

TROOPER DUNDERDALE: "Alright, that's a done deal with
Ghost. Short black kid. Celtics hat, gray
sweatpants, black hoodie . . . . He's got a
Celtics pinstriped hat on, real low. Black
hoodie, gray sweatpants. He told me his name is
Ghost . . . . Alright, he's got a Celtics
pinstriped hat on, black hoodie, he's holding a
soda bottle, um, gray sweatpants. He's right in
front of the 'Stop and Get Shot'. . . .

COVER OFFICER: "Is he in a Lakers hat?"

TROOPER DUNDERDALE: "Yeah."

COVER OFFICER: "He's over here."

TROOPER DUNDERDALE: "What did I say? What did I say?
. . . . Yeah, it might have been Lakers, let me
do a drive by . . . . Oh yeah, that's him in
front of Fernandez. Right, is that who you're
looking at? I'm almost positive it's him . . . .
I can do a drive by if you want . . . . Yeah,
that's him. Yup. Yup, that's him. Is that a
Lakers hat?"

In light of the posttrial disclosure, the defendant filed a

motion to stay the appellate proceedings. The motion was

granted, and the defendant filed a motion for a new trial based

solely on the newly disclosed audio recording. In 2024, the

2 Other portions of the audio recording reveal that Trooper
Dunderdale repeatedly announced variations of "I got to piss
bad" during the undercover operation.

3
motion judge, who was not the trial judge, denied that motion.

The defendant then moved for reconsideration of the denial after

another District Court judge issued a decision in a separate

matter regarding seven other defendants arrested in drug

interdiction operations involving undisclosed Callyo recordings

by members of the State police gang unit, including Trooper

Dunderdale.3 After review of that decision, the defendant's

motion for reconsideration was denied by the same judge who had

denied the new trial motion.

We review an appeal from the denial of a motion for a new

trial "only to determine whether there has been a significant

error of law or other abuse of discretion." Commonwealth v.

Grace, 397 Mass. 303, 307 (1986). See L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014) ("a judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made a clear error of judgment in weighing the factors relevant

to the decision such that the decision falls outside the range

of reasonable alternatives" [quotation and citation omitted]).

A motion for reconsideration likewise calls upon the

considerable discretion of the motion judge. See Commonwealth

v. Pagan, 73 Mass. App. Ct. 369, 374 (2008). "Because the

motion judge did not preside over the trial or conduct an

3 The defendant was not a party to the case.

4
evidentiary hearing, and the only relevant evidence submitted

. . . consisted of . . . documentary evidence, we review the

denial of the motion for a new trial de novo." Commonwealth v.

Mazza, 484 Mass. 539, 547 (2020). See Commonwealth v. Tremblay,

480 Mass. 645, 656 (2018) ("As the recording is documentary

evidence, the judge's findings drawn from it are not entitled to

deference, and we may review such evidence de novo").

"To prevail on a motion for a new trial based on new

evidence, a defendant must establish 'both that the evidence is

newly discovered [or newly available] and that it casts real

doubt on the justice of the conviction.'" Commonwealth v.

Bonnett, 482 Mass. 838, 844 (2019), quoting Grace, 397 Mass. at

305. The evidence must not only "be material and credible . . .

but also must carry a measure of strength in support of the

defendant's position." Grace, supra. "In evaluating whether

newly discovered evidence casts real doubt on the justice of a

conviction, [t]he motion judge decides not whether the verdict

would have been different, . . . but whether the evidence

probably would have been a real factor in the jury's

deliberations" (quotations and citations omitted). Bonnett,

supra.

The Commonwealth concedes that the audio recordings are new

evidence within the meaning of Grace, 397 Mass. at 305. That

said, we focus on the justice of the conviction. The defendant

5
first asserts that the posttrial disclosure of the audio

recording of Trooper Dunderdale's undercover operation "cast[s]

doubt" on the identification of the defendant as the person who

sold Trooper Dunderdale two bags of cocaine because he initially

described the defendant as wearing a "Celtics hat" and not the

"Lakers hat" he was seen wearing just before his arrest and had

in his possession when arrested. The defendant also argued that

the recording undercut Trooper Dunderdale's credibility in

several respects. To be sure, the recording reflects that

Trooper Dunderdale repeated an inaccurate description of the

defendant's hat multiple times until another trooper

specifically asked whether the defendant was wearing a Lakers

hat, at which time Dunderdale realized his error and confirmed

the defendant was the person who sold him the drugs.

The defendant asserts that evidence of the Commonwealth's

"sloppy investigation," shown through the defendant's use of a

Bowden defense at trial, was strengthened by the audio

recording.4 See Commonwealth v. Bowden, 379 Mass. 472, 485-486

(1980). The defendant argues that a new trial is warranted

4 "A Bowden defense refers to a defense built around the
proposition that an inadequate police investigation may raise
serious questions about whether the police and the Commonwealth
have charged and are prosecuting the proper perpetrator, and
thus may give rise to reasonable doubt about the defendant's
guilt" (quotation omitted). Commonwealth v. Avila, 454 Mass.
744, 745 n.1 (2009), citing Commonwealth v. Bowden, 379 Mass.
472, 485-486 (1980).

6
because, in addition to the evidence at trial regarding claimed

gaps in the police investigation, the jury should have been

shown that officers did not know how to use their own equipment,

that Trooper Dunderdale misstated the team logo on the

defendant's hat three times, and that he stated multiple times

that he had to use the facilities, "undermining his credibility

as a serious police officer." We are not persuaded.

We discern no abuse of discretion in the motion judge's

determination that evidence of the audio recording would not

have been a real factor in the jury deliberations. The audio

recording supported the strong evidence against the defendant.

Spotters recognized the defendant as the person who approached

Trooper Dunderdale's vehicle at the beginning of the operation

and the same person who exited the Stop and Gas just after

Trooper Dunderdale made the undercover purchase. In the

recording, Trooper Dunderdale identified the defendant's

clothing, including the pinstripes on his hat. In response to

officers asking Trooper Dunderdale whether the defendant wore a

Celtics hat or a Lakers hat, he drove by the defendant to

confirm the defendant's identity as the same person who sold him

cocaine just ten minutes earlier. Officers arrested the

defendant as he carried the pinstriped hat. Given these facts

and how they support the trial evidence, we discern no error in

the judge's conclusion that there was no "substantial risk that

7
the jury would have reached a different conclusion had the

[audio recording] been admitted at trial." Grace, 397 Mass. at

306.

Likewise, we are not persuaded that the evidence of "sloppy

police work," or evidence calling Trooper Dunderdale's

credibility into question, would have cast real doubt on the

justice of the defendant's conviction. The judge limited

evidence of the undercover operation to the sole issue the

defendant was on trial for -- his intent to distribute.

However, even if all evidence of the operation were excluded,

"there [were] a number of indicia that [could] have been

considered in the assessment of the [defendant's] intent to

distribute." Commonwealth v. Montalvo, 76 Mass. App. Ct. 319,

327 (2010). "Possession of a large quantity of an illicit

narcotic . . . . [i]n conjunction with the manner of packaging

permit[s] an inference of an intent to distribute."

Commonwealth v. Pratt, 407 Mass. 647, 653 (1990). "[T]he

absence of [a smoking] device is consistent with distribution."

Commonwealth v. Sepheus, 468 Mass. 160, 167-168 (2014).

See Commonwealth v. Labitue, 49 Mass. App. Ct. 913, 914 (2000).

"The amount of money found on a person may imply an intent to

distribute. A large amount of cash certainly is probative of an

intent to distribute." Sepheus, supra at 166. Here, the

defendant was found with a total of twenty-nine individually

8
wrapped bags of cocaine, no devices used to ingest cocaine, and

$2,340 worth of cash. The Commonwealth's closing argument

emphasized that these and other factors were strong evidence of

an intent to distribute, "without considering the fact that

minutes earlier, [as] Trooper Dunderdale testified, [the

defendant] dealt him this bag." Notwithstanding the defendant's

Bowden defense, the Commonwealth provided ample evidence and we

discern no abuse of discretion in the judge's conclusion that no

real doubt was cast on the justice of the defendant's

conviction.

Nor do we discern an abuse of discretion in the denial of

the defendant's motion for reconsideration. In his submission,

the defendant proffered a District Court judge's decision and

order regarding nondisclosure of Callyo recordings as

"significant new developments" while recognizing that the motion

judge was not bound by another trial court judge's decision.

The defendant did not argue to the motion judge, as he does

to us, that the District Court decision did or should establish

a conclusive presumption of egregious governmental misconduct

applicable to his case, such as that recognized in the Hinton

State Laboratory cases. See Commonwealth v. Hallinan, 491 Mass.

730, 745-749 (2023). Accordingly, the issue is waived on

9
appeal. See Mass. R. Crim. P. 30 (c) (2), as appearing in

435 Mass. 1501 (2001).5

2. Late disclosure of marked money. On the first day of

trial and for the first time, the police provided to the

Commonwealth, and the Commonwealth in turn provided to the

defendant, photographs of marked money that were "highly

material" to the charge of unlawful distribution of a class B

controlled substance. The defendant objected and argued, inter

alia, that these photographs were inconsistent with photographs

provided prior to trial. According to the defendant, "[the

Commonwealth] provided all of the pictures of all of the money,

and then at the last moment provided [photographs from] a

different camera, a different picture, . . . taken at a

different location with a different [background]." As a result,

the defendant moved to dismiss the charge of unlawful

distribution, or in the alternative, a mistrial.

The judge agreed that the Commonwealth's late disclosure

was problematic, but rather than dismiss a charge or declare a

5 Even if the issue were not waived, the District Court
judge had no authority to establish such a presumption since
only the Supreme Judicial Court has that extraordinary
authority. See Hallinan, 491 Mass. at 747-749 ("Pursuant to
G. L. c. 211, § 3, we have the extraordinary power to
superintend 'the administration of all courts of inferior
jurisdiction' . . . . We are satisfied that a conclusive
presumption that all three elements needed to establish the
first prong of the Scott-Ferrara test have been met").

10
mistrial the judge prepared to grant a continuance. However,

just as the judge was about to discharge the jury, the defendant

indicated that rather than a continuance on all charges, he was

"prepared to go forward [solely] on the second count [of

unlawful possession]." The defendant explained that the

"[distribution] and the [possession] counts are completely

separated [and] [b]ecause the Commonwealth is prepared, the

defense is prepared, and we have a jury, we can go forward on

that second [possession] count substantively." The judge

accepted the defendant's proposal and excluded evidence of the

marked money, concluding that it was surprise discovery. Trial

proceeded on the single count of unlawful possession of a class

B controlled substance with intent to distribute. The defendant

pleaded guilty to the straight distribution charge over a month

later.6

We review a judge's sanctions order pursuant to Mass. R.

Crim. P. 14, as appearing in 442 Mass. 1518, (2004), "for abuse

of discretion or other error of law" (citation omitted).

Commonwealth v. Sanford, 460 Mass. 441, 445 (2011). See L.L.,

470 Mass. at 185 n.27. "Where the Commonwealth has delayed in

disclosing evidence prior to trial, our principal concern is

whether the defendant has been prejudiced by the delay."

6 The defendant has not appealed or challenged his guilty
plea related to the distribution charge.

11
Commonwealth v. Stote, 433 Mass. 19, 22 (2000). "When the

ground for a motion for a new trial 'involves late disclosure by

the prosecution, without any showing of bad faith on its part

. . . a defendant is required to show material prejudice from

the [delay in] disclosure.'" Id., quoting Commonwealth v.

Hamilton, 426 Mass. 67, 70 (1997).

After proposing that the trial proceed solely on the

possession charge, the defendant argues on appeal that the judge

abused his discretion in failing to dismiss the distribution

charge. We disagree. The judge properly considered the delayed

timing of the Commonwealth's disclosure and excluded the

admission of any evidence regarding the marked money. Exclusion

thus precluded any prejudice against the defendant. See

Commonwealth v. Richenburg, 401 Mass. 663, 671 (1988). That the

defendant proposed that the trial proceed on the possession

charge also indicated that any potential prejudice was negated.

See Hamilton, 426 Mass. at 71.

3. Decision not to discharge juror. At trial, but before

the jury was sworn, a juror communicated to the court that she

no longer wished to serve as a juror. In response, the judge

brought the juror before the court and questioned her. The

juror stated that she wanted to be discharged from service

because she did "not agree with the process" and because she was

the "only person of color" of the fifteen jurors who were

12
seated. Following the extensive voir dire, defense counsel

advocated for the juror's retention, arguing that because "the

juror didn't clearly state that she couldn't make a reasonable

and objective finding and judge fairly," she should not be

excused. Counsel also acknowledged that the juror's concern

that she was the only person of color remaining from the venire

was valid. Ultimately, the judge declined to discharge her.7

The defendant now argues for the first time on appeal that the

judge erred in failing to discharge the juror after she

expressed her unwillingness to serve. The claim is unavailing.

Because the defendant did not raise this issue below, we

review for a substantial risk of a miscarriage of justice. See

Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). There was

no such risk here. Indeed, any such error would have been

invited. See Lannon v. Commonwealth, 379 Mass. 786, 792 (1980).

At trial, the defendant not only failed to show any risk of

juror bias due to the juror's concerns, but instead argued for

her retention, clearly believing that retaining the juror was in

the defendant's best interest. The judge determined, as was

within his discretion, that the juror's point of view would be

important and that she was not questioned any more intrusively

7 The Commonwealth took no position on whether the juror
should be dismissed and deferred to the "court's judgment."

13
than the other jurors. See G. L. c. 234A, § 39. Retaining the

juror was in no way unreasonable and cannot support a claim that

the judge's decision created a substantial risk of a miscarriage

of justice.

Judgment affirmed.

Orders denying motion for a
new trial and motion for
reconsideration affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.8),

Clerk

Entered: September 26, 2025.

8 The panelists are listed in order of seniority.

14