Opinion
No. 15–P–927.
06-07-2016
COMMONWEALTH v. Jose A. DOMINGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of distribution of a class B substance, to wit, cocaine, in violation of G.L. c. 94C, § 32A(a ), and commission of a controlled substance offense in a school zone, in violation of G.L. c. 94C, § 32J. On appeal, he challenges the sufficiency of the evidence and the admission of implied hearsay during the testimony of two police officers. We conclude that the evidence was sufficient to support the convictions, but that since the only evidence permitting the jury to find one element of the distribution offense beyond a reasonable doubt—the identity of the controlled substance he distributed as cocaine—was inadmissible implied hearsay, the convictions must be reversed and the case remanded for a possible new trial.
The complaint originally charged the crime of distribution of a class B substance, to wit, cocaine, subsequent offense, in violation of G.L. c. 94C, § 32A(b ). A partial nolle prosequi was entered on the subsequent offense portion of the charge on September 10, 2014. Although the complaint was amended to remove the phrase “subsq. off.” from the caption, no change was made to the listed section number, which remains “G.L. c. 94C, § 32A(b ).” However, the parties treated the charge as though it were for a violation of G.L. c. 94C, § 32A(a ), and that is the only offense listed in G.L. c. 94C, § 32A, over which the District Court has jurisdiction. See G.L. c. 218, § 26.
Background. We recount the facts in the light most favorable to the Commonwealth, reserving additional facts for discussion where relevant.
On August 8, 2014, Officer Steve Emery and Detective Michael Ferraro were conducting surveillance from an unmarked car roughly fifty feet from the door of a CVS store in Lynn. They noticed a woman and a man, later identified as Danielle and Alan Frieta, standing on the street corner in front of the CVS. Danielle was pacing back and forth, looking around, and glancing at her cellular telephone (cell phone). It appeared to the detective that she was “looking to purchase some narcotics.”
We will refer to Danielle and Alan by their first names to avoid confusion.
Eventually, Danielle pointed at the CVS and walked quickly towards it. She met the defendant outside the entrance and spoke to him for a few seconds. The two stepped inside the CVS vestibule. Their hands touched for a second or two. Officer Emery did not see anything in their hands. The defendant and Danielle left the CVS vestibule and approached Alan in the parking lot. The three spoke for around twenty seconds. The defendant then walked in one direction while Danielle and Alan walked in another and entered a car parked on the side of the road.
Officer Emery exited the unmarked police car and stopped the defendant. After identifying himself and reading the Miranda rights, he searched the defendant's pockets. He found a single one dollar bill in one pocket and four twenty dollar bills in a different pocket. He did not find anything else on the defendant: no drugs, no cell phone, nothing.
Detective Ferraro pulled over behind the car where Alan sat in the driver's seat and Danielle in the front passenger's seat. The officer exited his unmarked vehicle and approached the driver's side door of the other car. When Danielle saw him, she bent forward and reached towards her feet. After Alan and Danielle had exited the vehicle, Alan consented to a search of the car. The detective found a large pocketbook open on the floor by the front passenger's seat. Inside the bag he found two Marlboro cigarette boxes. One contained cigarettes while the other contained a plastic twist of cocaine. The cocaine weighed 0.34 grams. Further down in the bag, he found a prescription bottle containing nine pills. One pill contained the class B controlled substance Buprenorphine and the class E controlled substance Naloxone, five contained the class E controlled substance Gabapentin, and three contained the class E controlled substance Alprazolam. Detective Ferraro arrested Alan and Danielle.
A certificate of drug analysis, introduced without objection, established the weight and identities of the cocaine and pills.
At trial, Officer Emery, Detective Ferraro, and Officer Holey, a nonpercipient expert witness, testified that the CVS was in a high crime area, that they had made multiple drug arrests in that area, and that those seeking to buy drugs often will look nervously back and forth and at their phones while waiting for a seller. Officer Emery opined that when the defendant and Danielle were inside the CVS vestibule they “appeared to do a hand-to-hand transaction.”
Discussion. The elements of the offense of distribution of a class B substance, to wit, cocaine, are that (1) the substance in question was a class B substance, namely cocaine; (2) the defendant distributed some perceptible amount of that substance to another person or persons; and (3) the defendant did so knowingly or intentionally. See Commonwealth v. Terrelonge, 42 Mass.App.Ct. 941, 942 (1997).
The defendant argues that the evidence was insufficient to support a finding beyond a reasonable doubt that he distributed any drugs. We disagree. The officers' testimony about Danielle's behavior while she waited for the defendant and the hand-to-hand transaction was sufficient to prove that a drug transaction occurred. The fact that the officers who observed the actual transaction did not see anything in either the defendant's or Danielle's hand is not determinative. Commonwealth v. Soto, 45 Mass.App.Ct. 109, 111–112 (1998). Likewise, although it is true that the defendant had no cell phone on his person, despite the fact that Danielle had been constantly checking her phone immediately prior to their meeting, the absence is not determinative. Nor is it determinative that the amount of money the defendant was carrying did not match up with what the cocaine would likely have sold for. Even where officers do not directly observe drugs being transferred from the seller to the buyer, other circumstances can render the evidence of distribution sufficient. For instance, in Commonwealth v. Soto, supra, the evidence was sufficient to prove distribution where the defendant and the buyer met on a street containing a “heroin house,” their meeting appeared purposeful, their behavior was suspicious, their interaction was brief, and, immediately afterwards, the buyer was in possession of a packet of cocaine.
Officer Holey testified that 0.25 grams of cocaine sells for twenty dollars. At that rate, 0.34 grams would sell for around twenty-seven dollars.
The evidence so far recited, however, would not have allowed the jury to find beyond a reasonable doubt that the defendant distributed to Danielle the cocaine found in her purse, rather than the pills, also found in her purse. “The jury are permitted to draw rational inferences from the evidence, but no essential element of the crime may rest in surmise, conjecture, or guesswork.” Commonwealth v. Kelley, 359 Mass. 77, 88 (1971). “When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.” Commonwealth v. Salemme, 395 Mass. 594, 601 (1985), quoting from Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). Indeed, at argument, counsel for the Commonwealth initially conceded that “we don't know it wasn't the pills” that the defendant distributed to Danielle.
This is true notwithstanding the fact that the pills were found somewhat further down in Danielle's purse than the cocaine, a fact whose relevance the Commonwealth raised for the first time at argument.
The only evidence that the defendant distributed cocaine, in particular, was a statement Danielle made to Detective Ferraro at the time of her arrest. The defendant moved in limine to exclude this statement on hearsay grounds. The judge granted the motion, finding that Danielle was available to testify at trial and that her statement did not fall into any of the hearsay exceptions. (The Commonwealth does not challenge this ruling on appeal.) Danielle did not testify at trial, and her statement was not directly introduced. Nevertheless, during direct examination, the prosecutor twice elicited testimony that unmistakably implied the substance of Danielle's hearsay statement. First, the prosecutor and Officer Emery had the following exchange:
At the hearing on the motion, defense counsel described Danielle's statement as “made ... to the police after she was Mirandized where she says that she bought the [cocaine] for $20 from ... my client.”
Prosecutor : “And were you aware at that time that Officer Ferraro was speaking with other people?”
Officer i Eimery : “Yes.”
...
Prosecutor : “Before placing the defendant under arrest did you have a conversation with Detective Ferraro?”
Officer i Eimery : “Yes.”
Prosecutor : “And as a result of what you learned did you place the defendant under arrest at that time?”
Defense i ciounsel : “Objection, Your Honor.”
The i ciourt : “Overruled. You may answer.”
Officer i Eimery : “Yes, I did.”
Later, the prosecutor had the following exchange with Detective Ferraro:
Prosecutor : “Did you have a conversation with [Danielle] [after you found the cigarette box and pill bottle]?”
Detective i Fierraro : “Yes.”
Prosecutor : “And as a result of the conversation that you had with [Danielle and Alan] did you ultimately arrest both parties?”
Detective i Fierraro : “Yes.”
Prosecutor : “And did you inform Officer Emery of your conversation with both of those parties?”
Detective i Fierraro : “Yes.”
Prosecutor : “And as a result was someone charged with distribution of cocaine?”
Detective i Fierraro : “Yes.”
Prosecutor : “Do you see that person in the courtroom today?”
Detective i Fierraro : “Yes, I do.”
Detective Ferraro then identified the defendant.
This evidence, that as a result of the conversation with Danielle, the defendant was charged with distribution of cocaine, supports an inference that Danielle told Detective Ferraro that the defendant had sold her the cocaine found in her purse, rather than the pills. The evidence thus was sufficient to support the convictions.
Although we conclude below that the evidence of Danielle's conversation with Detective Ferraro should have been excluded, for purposes of evaluating sufficiency we include the erroneously admitted evidence. See Commonwealth v. Hanson, 79 Mass.App.Ct. 233, 234–235 (2011).
The defendant, however, argues that this was “implied” or “back door” hearsay, and that it was improperly admitted. For the same reason that this evidence suffices to render the evidence sufficient—it supports the element that what was distributed was the cocaine rather than the pills—the defendant is correct. Because “[t]he testimony ran to the principal question before the jury and filled a key gap in the Commonwealth's proof,” this case is controlled in all material respects by Commonwealth v. Tanner, 66 Mass.App.Ct. 432, 440 (2006). There we said,
“Police are entitled to explain the motivations for their conduct in carrying out an investigation. As we stated in Commonwealth v. Perez, 27 Mass.App.Ct. 550, 554 (1989), quoting from McCormick, Evidence § 249, at 734 (3d ed.1984), an ‘investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct.’ In conformity with this principle, police, in appropriate circumstances, may state that actions were taken upon ‘information received,’ or ‘as a consequence of a conversation’ with a particular witness. Commonwealth v. Perez, supra at 555. Because such explanatory statements do not repeat the substance of out-of-court conversations, they pose no hearsay (and, by extension, no confrontation) issues. Ibid. See Commonwealth v. Sepulveda, 6 Mass.App.Ct. 868, 869 (1978).
“However, even where properly constrained, ‘[t]estimony of this kind carries a high probability of misuse.’ Commonwealth v. Rosario, 430 Mass. 505, 509 (1999). Specifically, it may be used to communicate to the jury, implicitly if not expressly, the substance of incriminating statements that are otherwise inadmissible.”
Id. at 438–439.
Here, as in Tanner, “[t]he jury had been presented with significant evidence of the circumstances surrounding the arrests and there was no risk that, but for [the officers'] testimony concerning [Detective Ferraro's] conversation with [Danielle], the jury would have been confused or mystified about the reasons why police attention had settled on the defendant.” Id. at 439. This evidence was “the functional equivalent of telling the jury that [a nontestifying witness] had identified the defendant as the man who had sold [her] cocaine.” Id. at 440.
As in Tanner, although we conclude the defendant's objection was adequately preserved we would reverse the judgments even if it were not and we were required to review the claim only for a substantial risk of a miscarriage of justice. Id. at 440–441 & n. 6. As explained in Commonwealth v. Alphas, 430 Mass. 8, 13 (1999),
In addition to his motion in limine seeking to prevent introduction of Danielle's statement, which was allowed, the defendant objected to the question put to Officer Emery, although not to the question put to Detective Ferraro. Once the judge allowed in the backdoor hearsay through Officer Emery's testimony, we do not think further objection to Detective Ferraro's testimony was required to preserve this claim of error. See Commonwealth v. Vinnie, 428 Mass. 161, 172 n. 14 (1998) (reviewing hearsay objections “as if they had been preserved by timely renewed objection” where prior objections to similar testimony had been overruled). See also Commonwealth v. Gonzalez, 86 Mass.App.Ct. 253, 256 (2014).
“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence [ ]’ the guilty verdict. Commonwealth v. Freeman, [352 Mass. 556,] 564 [ (1967) ]. In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error,’ Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986), and whether it can be inferred ‘from the record that counsel's failure to object was not simply a reasonable tactical decision.’ Id. ” (Footnote omitted.)
In providing the only evidence supporting an element of the distribution offense, the backdoor hearsay here cannot but have materially influenced the guilty verdicts. The judgments must therefore be reversed and the case remanded to the trial court for further proceedings consistent with this memorandum and order.
It influenced both verdicts because the conviction of the school zone violation under G.L. c. 94C, § 32J, as the charge was tried and explained by the judge to the jury in this case, required the Commonwealth to prove that the defendant violated G.L. c. 94C, § 32A. Additionally, given defense counsel's motion in limine and his objection to Officer Emery's testimony, it can be inferred that the failure to object to Detective Ferraro's testimony was not a tactical decision.
In light of our disposition, we need not address the defendant's claim that Officer Emery's testimony “directly express[ed] his views on the defendant's guilt.” Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579 (1998).
Judgments reversed.
Verdicts set aside.