Opinion
No. 10–P–573.
2012-06-22
COMMONWEALTH v. Aristides HENRIQUEZ.
By the Court (KANTROWITZ, WOLOHOJIAN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction for trafficking in Oxycontin over 200 grams in violation of G.L. c. 94C, § 32E, and for a violation of the school zone law, G.L. c. 94C, § 32J. He also appeals from the denial of his motion for new trial. The defendant argues that (1) there was insufficient evidence to support his conviction; (2) a mistrial, or in the alternative, a new trial, should have been ordered for the violation of a pretrial suppression order; (3) bank records should not have been admitted; and, (4) the defendant's motion to suppress was improperly denied. We affirm.
Sufficiency. The defendant argues that the evidence that he possessed the Oxycontin was insufficient to support a conviction, see Commonwealth v. Sespedes, 442 Mass. 95 (2004), because there was no evidence that he had knowledge of the drugs, or that he exercised dominion or control over them. See Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008); Commonwealth v. Charlton, 81 Mass.App.Ct. 294, 299–303 (2012). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass, 671, 676–677 (1979), the jury could have found the following facts. Joseph Firth, the Commonwealth's cooperating witness, lived at 141 Plainfield Avenue in Malden. The defendant provided Firth with Oxycontin pills for sale, and Firth also traveled to Florida from time to time to purchase drugs on behalf of the defendant on flights arranged by the defendant's mother. Firth and the defendant also socialized. In October of 2008, Firth informed the defendant that he would no longer be involved in the drug business. The defendant then came to Malden himself on November 21, 2008, and stayed with Firth, bringing with him luggage, several bottles of Oxycontin pills bearing the defendant's name on the prescription label, and a lockbox in the shape of a dictionary. The defendant poured the Oxycontin pills into the lockbox, which was opened by a key that belonged to the defendant. The lockbox was placed in Firth's safe, which Firth alone could open with his fingerprint. At the time of the arrests of Firth and the defendant, Firth opened the safe for the police and told the police that the drugs belonged to the defendant. The empty prescription bottles with the defendant's name on them were found near the safe that contained the lockbox.
The evidence concerning defendant's possession of the pills, his decision to put them in the safe, and the empty pill bottles with his name were sufficient to prove both knowledge and intent to establish dominion or control beyond a reasonable doubt. The fact that the defendant chose to put the drugs in a safe place, i.e., the safe, does not require a finding that he had given up possession of the drugs.
See Commonwealth v. Watson, 36 Mass.App.Ct. 252, 259 (1994). The testimony, coupled with the fact that the defendant was present and the pill bottles were found near the safe, established “the defendant's knowledge, ability, and intention to exercise dominion and control over the area where the drugs were found”. Commonwealth v. Charlton, supra at 301, quoting Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 99–100 (2010).
Firth testified, and the jury could have found, that the defendant claimed pills were missing, and that by putting the defendant's “safe inside my safe” there was no way, “if something else [went] missing, that anyone could have been blamed.”
The key. The motion judge granted a motion to suppress the key to the lock box found in the defendant's possession and “[a]ll testimony relating to Detective Carroll's observing of the key on the person of defendant Henriquez....” The trial judge ruled that the motion judge's order did not prevent Firth from testifying to those firsthand observations regarding the key that were acquired independent of the wrongful search by the detective. Firth then testified, over objection, that the defendant had a key to the lockbox. We find no error in the admission of Firth's testimony, based on his independent knowledge and first hand observation, that the defendant had the key.
The judge also ruled, however, that witnesses were not to “talk about the [police] taking the key from the defendant because that should not have happened.” In later testimony, Firth described a conversation with the defendant after their arrest in which the defendant stated, “I can't believe this happened, they found this many pills, and they found the key on me.” This testimony clearly violated the suppression order. The judge struck the testimony. The defendant immediately moved for a mistrial. The judge denied the motion and instructed the jury to disregard the testimony.
The denial of the motions for mistrial and new trial did not constitute an abuse of discretion resulting in prejudicial error. See Commonwealth v. Amirault, 404 Mass. 221, 232 (1989). The improper testimony was cumulative. The jury had already heard admissible evidence that the defendant had the key, and testimony concerning his possession of the lockbox and the drugs. Prompt instructions were sufficient to cure the error, see Commonwealth v.. Garrey, 436 Mass. 422, 435 (2002), and the totality of the evidence concerning the parties' drug sales based on Firth's personal knowledge and observation was substantial. The denial of the motions for mistrial and for new trial were not “manifestly unjust” or “infected with prejudicial constitutional error”. Commonwealth v. Lao, 450 Mass. 215, 220 (2007). Commonwealth v. Walker, 443 Mass. 213, 224–225 (2005).
Bank records. Firth testified that the defendant supplied Firth with bank account numbers, and that Firth deposited the proceeds of the drug sales into bank accounts in the name of the defendant and the defendant's mother. Properly authenticated bank records were admitted covering the time they first met in 2005 to September of 2008. Firth identified the documents and transactions, and further testified that he could make deposits to the accounts, but no withdrawals. The defendant argues that his bank records and those of his mother, which referenced sales other than those with which he was charged over a substantial period of time, were inadmissible evidence of prior bad acts. We review for prejudicial error. Commonwealth v. Pagan, 440 Mass. 84, 87 (2003).
Evidence of prior bad acts is properly admitted “ ‘if the acts form part of a connected whole establishing knowledge, intent, motive, method, material to proof of the crime charged,’ Commonwealth v. Murphy, 282 Mass. 593, 598, (1933), and ‘provided it is reasonably near in time and [closely] connected with the crime charged in the indictment.’ Commonwealth v. Stone, 321 Mass. 471, 474,(1947).” Commonwealth v. Bryant, 390 Mass. 729, 744 (1984). See Commonwealth v. Imbruglia, 377 Mass. 682, 695 (1979); Mass. G. Evid. § 404(b) (2012). The evidence of the process by which Firth and the defendant tracked sales and accounted for money, occurring up to the time of the events in question, was clearly relevant to motive and intent to sell, as well as the methods and means by which the drugs were sold and the money accounted for. The judge did not abuse his discretion in finding that the prejudice here was not unfair, and any danger of unfair prejudice was outweighed by the probative nature of the records. Commonwealth v. Delong, 60 Mass.App.Ct. 528, 535 (2004).
The warrant. The defendant argues that the warrant to search 141 Plainfield Avenue was invalid because the supporting affidavit failed to meet the Aguilar–Spinelli test. See Aguilar v. Texas, 378 U.S. 108, 114 (1964), and Spinelli v. United States, 393 U.S. 410 (1969); Commonwealth v. Upton, 394 Mass. 363, 374–375 (1985). The defendant claims that the affidavit (1) failed to show that the confidential informant had a sufficient basis of knowledge or sufficient indicia of veracity; (2) failed to provide corroboration based on firsthand knowledge for the confidential informant's information; and, (3) failed to demonstrate probable cause either that contraband would be found at 141 Plainfield Avenue or that the drug sale triggering the warrant would occur.
It is true that the affidavit did not give a great deal of information as to the confidential informant, other than that he had done three controlled buys for the Everett police. These buys involved a dealer whose source of Oxycontin was a man named Joe who lived at 141 Plainfield Avenue, had a safe and drugs in his basement, and dealt Oxycontin from the back door of the building. However, the affidavit also contained reports from other sources and firsthand police observations, confirming that (1) Firth participated in the distribution of large amounts of Oxycontin; (2) the drugs were distributed from 141 Plainfield Avenue from the rear door; and (3) Firth kept drugs and cash in a safe in his basement at 141 Plainfield Avenue.
Whether any one informant or police observation satisfied the Aguilar–Spinelli test, the whole was greater than the sum of its parts. “Whatever deficiencies may be claimed as to each individual informant's ability to satisfy both tests, the controlling principle in this case is that ‘independent police corroboration or mutual corroboration of multiple informants may compensate for deficiencies in the individual sources.’ “ Commonwealth v. Rice, 47 Mass.App.Ct. 586, 589 (1999), quoting from Commonwealth v. Russell, 46 Mass.App.Ct. 513, 517 (1999).
The police had received anonymous tips since 2004 that Firth was dealing drugs from 141 Plainfield Avenue. Seventeen months prior to the application for the warrant, the police arrested a man for breaking into Firth's home. He told police that Firth dealt drugs from that address, and that he had a safe with drugs and cash there. In November of 2008 the police received two anonymous tips that Firth was dealing Oxycontin from 141 Plainfield Avenue, and learned from the Malden police of the confidential informant. Also in November of 2008, the confidential informant told the police the time and place that his supplier would make a buy; the police watched the supplier go to the back door at that address, meet with a man, and leave. The confidential informant then bought drugs from the supplier. After a second such buy, the confidential informant set up a third buy. The police obtained a warrant for the supplier's residence, and an anticipatory warrant for 141 Plainfield Avenue. Drugs were found in connection with the first warrant, and the warrant in question here was then was executed.
The contents of the affidavit established probable cause that contraband would be found at 141 Plainfield Avenue. Ibid.
The defendant also argues that police could not have been certain the supplier did not have drugs in his possession prior to arriving at 141 Plainfield Avenue. Probable cause, not certainty, is the standard. Commonwealth v. Soares, 441 Mass. 521, 524 n. 3 (2004). In addition, the triggering event for the warrant was sufficiently clear and narrow. Id. at 525 n. 5.
Judgments affirmed.
Order denying motion for new trial affirmed.