Opinion
13-P-991
12-10-2014
COMMONWEALTH v. VICTOR HERNANDEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Victor Hernandez, was convicted of two counts of trafficking in cocaine. On appeal, he challenges several evidentiary rulings, including the admission of warrantless recordings of his drug transactions. We affirm.
1. Background. An individual became an informant for the Federal Bureau of Investigation (FBI) after Boston police found a large amount of cocaine in his apartment in late 2007. The defendant was his supplier. Upon request from the Boston police, who wanted to dismantle the supply network, the FBI and the United States Attorney's office launched a Federal investigation with the Boston police assisting in surveillance activities. The informant agreed to participate in controlled cocaine purchases from the defendant using money and equipment from the FBI. Surreptitious warrantless recordings were made of three purchases in 2008.
Although the identity of the informant was known to the parties, we will not use his name here.
In July, 2009, Federal authorities decided to end the investigation and, rather than proceeding federally, agreed to allow the case to continue as a State investigation. At this time, State officials obtained a warrant for further recordings. On September 7, 2009, a Suffolk County grand jury indicted the defendant on three counts of trafficking in cocaine. On April 11, 2012, the defendant was found guilty on the first two counts, and not guilty on the third count. The judge then entered the sentence.
2. Warrantless recordings. The defendant argues that an exemption to the Massachusetts wiretapping statute for Federal agents does not apply here and, as such, the evidence should have been suppressed.
With exceptions, the wiretapping statute prohibits the recording of oral communications without a warrant or consent of all parties to the communication. G. L. c. 272, § 99 C 1. The statute creates an exemption for Federal investigations.
"It shall not be a violation of this section for investigative and law enforcement officers of the United States of America to violate the provisions of this section
if acting pursuant to authority of the laws of the United States and within the scope of their authority." G. L. c. 272, § 99 D 1 c.
If, however, warrantless recordings by Federal agents are "the fruit of a combined enterprise between State and Federal officials," then the Federal exemption does not apply and suppression is an appropriate remedy. Commonwealth v. Jarabek, 384 Mass. 293, 297 (1981). In contrast, if an investigation is initiated by Federal agents, the Federal agents make the decision to record the conversations, the purpose of the investigation is obtaining evidence for Federal prosecution, and State agents act under the direction of the Federal agents, then the investigation remains a Federal one qualifying for the exemption. See Commonwealth v. Gonzalez, 426 Mass. 313, 316 (1997). A judge's findings in this context will be disturbed only if they are clearly erroneous. Ibid.
Here, the judge's denial of the motion to suppress was based on findings that were not clearly erroneous. He could reasonably have found that the recordings were made during a Federal investigation that was exempt under G. L. c. 272, § 99 D 1 c. See Commonwealth v. Gonzalez, supra at 316. The judge reasonably ruled that the Federal investigation was not a "combined enterprise" when the recordings were made, as Federal agents made the decision to record the defendant, Boston police officers were working under the supervision of Federal authorities, and the goal when the recordings were made was to obtain evidence for Federal prosecution. See ibid. As in Gonzalez, the transformation of the Federal investigation into a State matter, after the recordings were made, is immaterial. We note also that once the decision was made, the State complied with the statute and secured a warrant. The denial of the motion to suppress was not in error.
We note also that, given the numerous controlled buys, the case against the defendant appeared to be strong.
3. Prior bad acts. The defendant next argues that the judge should not have allowed testimony of his previous drug sales to the informant or his alternate names because such information was unfairly prejudicial.
Evidence may not be introduced to show bad character or propensity to commit a crime, but alternative purposes such as showing identity or motive are allowed. Commonwealth v. Gollman, 51 Mass. App. Ct. 839, 843 (2001); Mass. G. Evid. § 404 (2014). We review to determine whether admitting such evidence was "palpable error." Commonwealth v. Robles, 423 Mass. 62, 68 (1996).
Here, there was no error when the judge allowed testimony of the previous drug sales to the informant. The defendant admitted that the informant owed him money, but suggested in cross-examination that the debt was for bail money, not drugs; under these circumstances, the Commonwealth was entitled to introduce opposing evidence. The evidence was also admissible as it demonstrated the nature of the relationship between the parties. See Mass. G. Evid. 404(b). The judge also provided extensive limiting instructions.
Similarly, admitting evidence concerning the defendant's other names was not erroneous because the evidence was introduced to show the defendant's identity, not his bad character. See Commonwealth v. Dyer, 460 Mass. 728, 754-755 (2011); Commonwealth v. Gollman, 51 Mass. App. Ct. at 843.
4. Other issues. There is no merit to the defendant's argument that the judge abused her discretion in finding no violation of a sequestration order when a Boston police detective, who testified as a witness, contacted the informant and his mother by telephone to determine how the informant's bail was posted. The main purpose of sequestration of witnesses is to "prevent the commission of perjury." Here the call was made not to further perjury, see Commonwealth v. Ahart, 464 Mass. 437, 443 (2013), but to secure evidence. See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 157 (2008).
The prosecutor's statements to jurors that they were "virtual witnesses" in his closing argument was also not error as he used the phrase in connection with the jury having to listen to the various wiretaps, placing them in that role. Considering the lack of an objection, the judge's careful instructions to the jury, and the substantial evidence against the defendant, Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013), it is difficult to discern prejudice.
For these reasons, and for substantially those set forth in the brief of the Commonwealth, we affirm.
Judgments affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 10, 2014.