Commonwealth v. Brian K. Joyce, Jr.

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

22-P-538

COMMONWEALTH

vs.

BRIAN K. JOYCE, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was tried and convicted in the Boston

Municipal Court on a charge of distribution of a class B

controlled substance, in violation of G. L. c. 94C, § 32A. While

his direct appeal was pending, he moved unsuccessfully for a new

trial on the basis of ineffective assistance of counsel. In

this consolidated appeal he raises claims based principally on

the latter. Like the motion judge, we discern no basis for

relief, and affirm the conviction and the order denying the

motion for a new trial. We address the defendant's several

claims in turn.

1. The defendant first contends that trial counsel was

constitutionally ineffective for attempting to create reasonable

doubt by eliciting evidence that police observed the defendant

engage in three encounters preceding the encounter giving rise
to the charged offense that appeared visually similar, if not

identical, from the perspective of the observing officer. The

defendant asserts that this evidence tended to suggest that the

defendant was a serial drug dealer, and cast the defendant as a

bad actor. However, trial counsel's express strategy was to

suggest that none of the encounters was a drug sale, and to

point to the absence of currency from the preceding encounters

to suggest that the Commonwealth's version of events was not

credible. 1 Trial counsel's strategy was not manifestly

unreasonable, and indeed sought to offer an alternative innocent

explanation for an encounter the police witness described as

consistent with a hand-to-hand drug sale. That trial counsel's

strategy was unsuccessful does not mean that it was unreasonable

1 When apprehended, the defendant had one twenty dollar bill in
his possession. Trial counsel argued that if each observed
encounter had been a drug sale the defendant should have had
multiple bills in his possession, and that in any event
possession of twenty dollars in cash was insufficient to prove
the defendant was selling drugs. The defendant's criticism on
appeal of trial counsel's failure to elicit evidence of the
street value of "crack" cocaine is unavailing. To begin with,
the police offered no testimony that they witnessed the
defendant making change during any of the observed encounters,
leaving trial counsel free to suggest that the single bill in
the defendant's possession was inconsistent with four encounters
identical to the one police contended was a drug sale. In any
event, the record on the new trial motion offers no evidence
concerning what an attempt to elicit evidence of value would
have produced, making any suggestion it would have been helpful
rest on speculation.

2
–- much less manifestly so. See Commonwealth v. Denson, 489

Mass. 138, 152 (2022).

2. Prior to trial the defendant moved in limine to exclude

evidence of his statement, at the time of his arrest, that "this

isn't my first time being arrested on drugs." The statement was

admissible as the statement of a party, see Mass. G. Evid.

§§ 801(d)(2), 404(b) (2023). Contrary to the defendant's

contention on appeal, the trial judge did not abuse discretion

in concluding that the evidence was admissible to show his

knowledge of the charged conduct, and not inadmissible as

propensity evidence. 2 In any event, the trial judge refused to

allow certain more prejudicial portions of the statement into

evidence, the trial prosecutor placed little emphasis on the

admission in her closing, and the evidence of the defendant's

guilt was substantial.

3. Finally, we reject the defendant's contention that the

evidence at trial was insufficient to support the defendant's

conviction. 3 Even standing alone, the police officer's

2 Among other things, the evidence tended to support the
Commonwealth's suggestion that the absence of other drugs in the
defendant's possession at the time of his arrest could have been
the result of the defendant's decision to swallow other packets
held in his mouth for sale, based on his familiarity with the
arrest process.
3 As framed on appeal, the argument suggests that "but for" the

testimony of the three prior encounters elicited by the
defendant's trial counsel, the evidence did not support the
conviction. If successful, the argument would support a new

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observation of the defendant spitting out a small bag from his

mouth and handing it to a person in exchange for what appeared

to be currency, followed a short time later by the apprehension

of the other person in possession of a small bag that tested

positive for "crack" cocaine and the recovery from the defendant

of a twenty dollar bill, when viewed in the light most favorable

to the Commonwealth, see Commonwealth v. Latimore, 378 Mass.

671, 676-677 (1979), was sufficient to establish that the

defendant sold drugs to the other person.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Green, C.J.,
Shin & Hodgens, JJ. 4),

Clerk

Entered: August 21, 2023.

trial, and not a judgment of dismissal, since we assess the
sufficiency of the evidence introduced at trial, including even
evidence that was introduced in error. See Commonwealth v.
Mauricio, 477 Mass. 588, 597 (2017).
4 The panelists are listed in order of seniority.

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