Opinion
18-P-1621
03-10-2020
COMMONWEALTH v. Jose BALCACER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Jose Balcacer, was convicted of trafficking in heroin, 200 grams or more, and trafficking in heroin, one hundred grams or more. On appeal, he primarily contends that the Superior Court judge abused his discretion in denying his motion for a new trial predicated on ineffective assistance of counsel. In addition, he contends that the Commonwealth elicited improper expert testimony, the prosecutor's opening statement and closing argument created a substantial risk of a miscarriage of justice, and the judge erred in denying his motions to suppress evidence. We affirm the judgments and the order denying the motion for a new trial.
Background. In denying the defendant's motion for a new trial, the motion judge summarized the factual background of the case as follows:
The motion judge was not the trial judge.
"The charges arise out of the planned controlled purchase of a half-kilogram of heroin, the arrest of the [defendant] and co-defendant Robert Navarro (‘Navarro’), the seizure of heroin intended for the controlled purchase, the search of the [defendant]'s person and vehicle, the execution of two search warrant[s] [ ] at 2 McIntyre Court, Peabody (the ‘premises’), and seizure of additional heroin. A regional drug task force used a confidential informant (the ‘CI’) to set up a series of controlled purchases from Navarro. On October 16, 2013, after three earlier controlled purchases and provision to the CI of two ‘samples’ of heroin, [the defendant] and Navarro drove together from 2 McIntyre Court to Macys in the North Shore Mall, the agreed-upon meeting place for the next controlled purchase. [The defendant] drove a white Mitsubishi registered to his wife (the ‘Mitsubishi’).[ ] They walked into the store together, and split while Navarro met with and showed the CI the contents of a shopping bag that appeared to be the agreed-upon half-kilo of heroin. Upon a signal from the CI and observation of a brief verbal exchange between Navarro and [the defendant], officers arrested Navarro, confirmed the contents of the shopping bag found at his feet, and then arrested [the defendant], a short distance away in the same section of Macys. The substance recovered from the shopping ba[g] was later tested and found to be heroin, and is the subject of the trafficking offense (200 grams or more) charged in indictment 001.
"During a search of [the defendant]'s person incident to his arrest, a set of keys was seized from his front pants pocket (‘first set of keys’). Officers immediately responded to the white Mitsubishi, which [the defendant] and Navarro had left in the parking lot before entering Macys. The vehicle was unlocked and officers entered the vehicle and found a second set of keys in the center console (‘second set of keys’). Officers then took the two sets of keys and went [to] the premises (i.e., 2 McIntyre Court). The first set of keys contained a key that opened the door to the second floor apartment, which police had earlier established to be [the defendant]'s residence. The second set of keys contained separate keys that opened the second floor apartment and the first floor apartment.
"A search warrant was obtained to search the first and second floor apartments at the premis[ ]es. No potential evidence was seized under the warrant from the second floor apartment. Over 100 grams of heroin, scales, a kilo press, cutting agent, and packaging materials were seized under the warrant from the first floor apartment. The substance recovered from the first floor apartment was later tested and found to be heroin, and is the subject of the trafficking offense (100 grams or more) charged in indictment 002."
Discussion. 1. Ineffective assistance. The defendant argues that the motion judge abused his discretion in denying his motion for a new trial predicated on alleged ineffective assistance of counsel. The claim is unavailing.
The defendant asserted various grounds in his motion for a new trial. The motion judge denied the motion as to the ineffective assistance of counsel claims, without an evidentiary hearing, because no substantial issue was raised by the motion or supporting affidavits. The judge did not address the other issues raised in the motion, because they were "more appropriately reserved for [the defendant's] direct appeal."
Motions for a new trial are committed to the sound discretion of the judge, see Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are granted only in extraordinary circumstances." Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing.’ " Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must also establish that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and that, as a result, he was "likely deprived ... of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (prejudice standard under second prong of Saferian test met when reviewing court has "serious doubt whether the jury verdict would have been the same had the defense been presented").
The defendant first argues that trial counsel was ineffective in failing to obtain and introduce the defendant's (and his wife's) tax returns from 2011 and 2012, which would have shown rental income for the apartment. The defendant contends that such evidence would have undercut the Commonwealth's theory that the first-floor apartment was the defendant's "stash house" for drug-related activity. We agree with the motion judge's determination that the tax returns would have been cumulative of information introduced at trial. The defendant and his wife owned 2 McIntyre Court and lived on the second floor. The jury heard testimony that the first-floor apartment was rented to Sergio Hernandez. Furthermore, the rental agreement, signed by Hernandez and the defendant's wife, was entered into evidence as an exhibit. There was also evidence that Hernandez paid for the electricity for the first-floor apartment. Under these circumstances, we cannot say that it was unreasonable for defense counsel to decline to pursue and enter into evidence copies of the defendant's tax returns. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("arguably reasoned tactical or strategic judgments" do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable" when made).
Police officers recovered keys to the first- and second-floor apartments from a key ring found in the ignition of the Mitsubishi.
The defendant next contends that counsel was ineffective in failing to file an O'Dell motion, because a State trooper allegedly presented false and misleading evidence to the grand jury. See generally Commonwealth v. O'Dell, 392 Mass. 445 (1984). We disagree. Viewed in context, any minor inconsistencies between the trooper's testimony and the daughter's statements were grounds for clarification on cross-examination. Having reviewed the grand jury minutes, trial transcript, and trial record, we discern no merit to the defendant's claim.
The defendant claims that Trooper Richard Poirier testified to the grand jury that the defendant's daughter told officers that "sometimes, [the defendant] lets his friend, meaning Mr. Navarro, use the first floor, when he's in the area, and that they had just left from the first floor" of the apartment. The defendant argues that (1) although the police believed Navarro to be the aforementioned "friend," the daughter merely described the friend as a heavyset Dominican man with facial hair; and (2) the daughter never told the police that "they had just left from the first floor." However, according to Agent Paul Karamourtopoulos, the daughter stated that the defendant "had just left and was downstairs" with a friend whom she referred to as "a big Dominican male with a beard. Facial hair I believe."
The defendant also claims that trial counsel was ineffective for failing to obtain surveillance footage of the defendant's arrest at Macy's, or in the alternative, failed to argue its absence to the jury. We disagree. As the judge found in denying the motion for a new trial, "[t]he Commonwealth informed trial counsel that interior surveillance of the area of interest leading up to and including the arrest of [the defendant] and Navarro was unavailable. The record provides no basis for this court to conclude that the Commonwealth misrepresented the absence of relevant surveillance video footage." Moreover, there is nothing in the record before us demonstrating the existence of any such surveillance video. Thus, as the motion judge concluded, the defendant's claim "is speculative at best." Moreover, trial counsel cross-examined law enforcement officers at trial as to the absence of any such surveillance videos and the officers' failure to seek or obtain them. Although trial counsel did not mention the absence of footage in closing argument, he proffered Bowden-type arguments concerning the shortcomings of law enforcement's investigation. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). Here again, the record does not support the claim that trial counsel's tactical and strategic judgments were "manifestly unreasonable" when made. Adams, 374 Mass. at 728.
There is no merit to the defendant's claim that trial counsel was ineffective in failing to seek an instruction pursuant to Bowden, 379 Mass. at 486. See Commonwealth v. Durand, 475 Mass. 657, 674 (2016) ("a judge is not required to instruct on the claimed inadequacy of a police investigation" [citation omitted] ).
We further reject the defendant's claims that trial counsel was ineffective for failing to move to suppress the defendant's daughter's statements, and for failing to impeach Special Agent Flaherty regarding aerial surveillance. The arguments are speculative, and on the present record the defendant has not satisfied either prong of the ineffective assistance of counsel test as to these claims. See Saferian, 366 Mass. at 96.
Finally, the defendant contends that trial counsel was ineffective for failing to move to suppress the statements made to law enforcement officers by the defendant's daughter, after officers opened the second-floor apartment door. To prevail on this claim, the defendant must prove he "had a potentially viable basis for a motion to suppress, such that counsel's failure to file the motion fell below the standard of an ordinary, fallible lawyer," and that he "would have prevailed on [the] motion to suppress." Comita, 441 Mass. at 92-93. A motion to suppress Natasha Balcacer's statements would have failed. She testified at trial that she answered when officers knocked on the door, which gave the officers "at least an objectively reasonable belief that someone is inside" that allowed them to secure the premises. Commonwealth v. DeJesus, 439 Mass. 616, 624 (2003). Contrast id. (police could not enter and secure premises where they "had no knowledge that anyone was inside, there was no response to their knocking at the door, and they apparently heard no sounds coming from within"). Thus, counsel was not ineffective for failing to move to suppress the daughter's statements.
Even assuming, arguendo, that the officers' entry into the second-floor apartment was improper, and that counsel should have moved to suppress Natasha Balcacer's statements, we agree with the motion judge that given the strength of the Commonwealth's case, "there was no probability that the absence of the conversation would have made a difference in the jury's verdicts." See Millien, 474 Mass. at 432 (second prong of Saferian test is satisfied where there is "a serious doubt whether the jury verdict would have been the same had the defense been presented"). Moreover, as explained below, the affidavit in support of the search warrant was extensive, detailed, and, even without Natasha's statement, more than sufficient to provide probable cause to search both apartments at 2 McIntyre Court.
2. Opinion testimony. The defendant argues that the admission of improper expert opinion testimony -- "both objected-to and unobjected-to" -- requires a new trial. Contrary to the defendant's claim, trial counsel did not object at trial to the testimony now challenged on appeal. Thus, we limit our review to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We have reviewed the transcript citations provided in the defendant's brief relative to the testimony of Special Agent Coletti, Detective Ricci, Detective Donahue, and the paid informant. The cited transcript pages do not reveal any objections to the alleged improper testimony.
The defendant's argument is unpersuasive. The defendant challenges an officer's testimony that a document "looks like a balance sheet of some sort," which the witness then characterized as an "[o]we sheet." He also challenges testimony describing the manner in which heroin is cut and distributed for sale, and testimony from an experienced DEA agent that the first-floor apartment looked like "a stash or drug processing location." Several of the statements now challenged were elicited on cross-examination or on redirect examination in response to defense counsel's line of questioning. Furthermore, the statements were immaterial to the actual defense in the case. The defense contended, inter alia, that the defendant merely drove Navarro to the mall where the officers observed the final drug transaction, but was not party to the drug dealing; that the officers conducted an insufficient investigation; that the evidence did not demonstrate that the defendant knew about the drugs and drug-related paraphernalia in the first-floor apartment; that the evidence did not show that the defendant had control of the drugs in the house or the drugs transported to the mall; and that the defendant was not part of or party to Navarro's activities. Hence, where the defense did not hinge on whether the first floor was a "stash house," or the manner in which drug dealers operate, it is unsurprising that no objection was raised to such testimony at trial. Furthermore, the Commonwealth presented a strong case. Thus, even assuming, arguendo, error in the admission of some of the officers' testimony, we discern no substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.
3. Opening statement and closing argument. The defendant contends that the prosecutor misrepresented the evidence in his opening statement by erroneously claiming that the defendant participated in the first hand-to-hand sale to the informant. He also argues that the prosecutor improperly appealed to the jury's emotion in referencing "Pablo Esc[o]bar." The arguments are unavailing.
We agree that the prosecutor erred in stating in his opening remarks that the defendant was "in the front seat" for the first controlled drug buy. However, the prosecutor soon cured the error by stating, "[y]ou're going to say, well, we haven't seen [the defendant] yet. The next deal ... is when the person who lives at this address makes his first appearance in surveillance." Thus, the jury could not have been misled by the brief, corrected misstatement. In addition, the judge instructed the jury, before opening statements, and in his final charge, that opening statements and closing arguments are not evidence.
In his closing argument, the prosecutor described the inconsistencies and weaknesses in the defendant's testimony and defense. Included in this argument was the defendant's statement upon arrest to police officers, despite having driven Navarro to the mall, that he "took a cab" to the mall. The prosecutor then stated, "[n]o one said he's a good drug dealer. No one said he's Pablo Esc[o]bar." Viewed in context, the isolated statement amounted to a rhetorical flourish, was not improper, and, in any case, could not have impacted the jury in light of the judge's clear and repeated instructions that closing arguments are not evidence. See Commonwealth v. Gonzales, 465 Mass. 672, 681 (2013) (noting that prosecutor's improper comments "were isolated," judge correctly instructed jury that "closing arguments of counsel are not evidence, and that they are required to apply the law as given to them by him," and that "[t]he jury are presumed to follow his instructions"); Commonwealth v. Whitman, 453 Mass. 331, 343 (2009) ("Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury"). Indeed, the judge's instructions, which the defendant does not challenge on appeal, were clear, comprehensive, and accurate. We presume the jury followed them. See Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).
Evidence of the defendant's statement that he "took a cab" to the mall was admitted at trial without objection.
We also disagree with the defendant's claim that the prosecutor "argued for the jury to use their emotion." The record does not support the claim, and the judge instructed the jury, three times, to render a verdict "based solely on a fair consideration of the evidence," and not to be swayed by prejudice, bias, or sympathy. See Commonwealth v. Anderson, 445 Mass. 195, 209-210 (2005) (judge mitigated any potential prejudice by instructing jurors, inter alia, "not to base their verdicts on any sympathy or emotion").
4. Motions to suppress. The defendant argues that the judge erred in failing to suppress the keys seized from his person upon arrest, evidence seized from his parked vehicle, and evidence observed during the warrantless entry of the apartments. We disagree.
The evidence at trial, including but certainly not limited to the use of the defendant's Mitsubishi in the drug-dealing activities, the use of the first-floor apartment owned by the defendant, and the defendant's participation in the drug transaction as the driver and lookout, was more than sufficient to establish probable cause to believe that the defendant had just committed a crime. See Commonwealth v. Watson, 430 Mass. 725, 733 (2000). "Following an arrest, the police are justified in searching a defendant. A hard object found, such as keys, may be seized." Commonwealth v. Blevines, 438 Mass. 604, 608 (2003).
We also discern no error in the denial of the motion to suppress the keys seized from the defendant's parked vehicle. The officers had probable cause to believe that the Mitsubishi -- owned by the defendant, used in the prior controlled buys, driven back and forth between the drug buys and 2 McIntyre Court, and driven by the defendant, accompanied by Navarro, to the prearranged meeting location at the mall for the drug transaction -- contained evidence related to the one-half kilo of heroin just sold to the informant, and to the ongoing heroin distribution operation. See Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 797 (2011) ("the constitutional search and seizure law ... allows for a warrantless vehicle search where there is probable cause that the subject vehicle may contain evidence of the crime for which the arrest is made"). Furthermore, the Mitsubishi was parked in a public place, and thus "no more exigent circumstances [were] required ... to justify a warrantless search of the vehicle" (citation omitted). Commonwealth v. Eggleston, 453 Mass. 554, 557 (2009). See id. at 559 ("Once probable cause was established, the warrantless search of the defendant's vehicle in the public parking lot was permissible").
Finally, we agree with the motion judge that the affidavit in support of the search warrant provided probable cause for the search of 2 McIntyre Court. The comprehensive and specific affidavit described, in ample detail, the nexus between Navarro and the defendant's drug-related activities and the apartments to be searched. See Commonwealth v. Monteiro, 80 Mass. App. Ct. 171, 175-176 (2011) (affidavit in support of search warrant sufficient to support probable cause where defendant was "closely surveilled" and "was observed leaving [his] house beforehand, driving [his vehicle] directly to and from the sale location, and then reentering the house" for two of five controlled drug buys).
The motion judge who denied the motion to suppress the search conducted at the defendant's apartments at 2 McIntyre Court was neither the trial judge nor the judge who decided the motion for a new trial.
We further agree that the officers properly used the keys found on the defendant's person and from his Mitsubishi to determine whether they fit the locks on the doors of the two apartments at 2 McIntyre Court. See Commonwealth v. Alvarez, 422 Mass. 198, 210 (1996) ("police did not violate any constitutional rights of the defendants by inserting a key into the lock at [the residence] and turning it to see whether it fit"). Even assuming, arguendo, that the officers should not have entered the home, and such information should not have been considered in support of the application for the search warrant, we do not agree with the defendant that suppression was warranted. Evidence from an illegal entry and search in these circumstances is nevertheless admissible "as long as the affidavit in support of the application for a search warrant contains information sufficient to establish probable cause to search the defendant's [home], apart from the observation[s]" gleaned from the initial entry. DeJesus, 439 Mass. at 625. Given the comprehensiveness of the affidavit submitted in support of the search warrants, we have no difficulty holding that the remaining information in the affidavits nonetheless provided probable cause to search the home. See id. at 627 ("cumulative information remaining in the affidavit provided probable cause" to support warrant where informant's tip that drugs would be found in defendant's apartment "was fully corroborated by the police investigation leading to the defendant's arrest," information gained from another defendant, and fact that "the keys fit the locks").
Judgments affirmed.
Order dated October 24, 2018, denying motion for new trial affirmed.
Other arguments made by the defendant but not discussed have been considered. We find nothing in them that merits further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).