Opinion
13-P-949
11-14-2014
COMMONWEALTH v. VICTOR JIMINEZ.
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
A jury convicted the defendant of trafficking in twenty-eight to one hundred grams of cocaine. See G. L. c. 94C, § 32E(b). On appeal, the defendant argues that (1) his motion to suppress should have been allowed because the police officer's affidavit failed to establish probable cause to support the issuance of a warrant; (2) there was insufficient evidence to prove beyond a reasonable doubt that the substances seized at his apartment were the same as those entered in evidence at trial; and (3) the prosecutor impermissibly vouched for the credibility of the Commonwealth's witnesses and improperly utilized rhetorical questions in his closing argument. We affirm.
1. Motion to suppress. When determining whether there was probable cause for a search warrant to issue, "our inquiry as to the sufficiency of the search warrant application always begins and ends with the four corners of the affidavit." Commonwealth v. Harmon, 63 Mass. App. Ct. 456, 460 (2005), quoting from Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (internal quotation marks omitted). "To give rise to probable cause, an affidavit must contain information allowing the issuing magistrate to determine that the items sought are related to the crime being investigated, and that these items 'reasonably may be expected to be located in the place to be searched.'" Harmon, supra, quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983).
The affidavit in this case was based in part on a confidential informant's statement that he had previously purchased cocaine from the defendant at the defendant's apartment. The remainder of the affidavit consisted of detailed descriptions of police observations and investigation, including the attesting officer's own knowledge of (and participation in) three controlled buys involving the confidential informant, the defendant, the defendant's car, and the defendant's apartment.
"[T]he magistrate must 'be informed of (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was 'credible' or his information 'reliable' (the veracity test)." Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985), quoting from Aguilar v. Texas, 378 U.S. 108, 114 (1964). See Spinelli v. United States, 393 U.S. 410, 415 (1969). We are not persuaded by the defendant's argument that this test was not met.
Here, the initial report from the confidential informant was an admission that he had previously bought cocaine from the defendant at the defendant's apartment. "An informant who admits to buying drugs from the target suffices to show a basis of knowledge." Commonwealth v. Lima, 80 Mass. App. Ct. 114, 119 n.5 (2011). As for the second prong, veracity, the confidential informant participated in three controlled buys under the supervision of the attesting police officer. See Commonwealth v. Russell, 46 Mass. App. Ct. 513, 519 (1999) (while not required, controlled buys significantly strengthen informant's reliability under Aguilar-Spinelli test). The particulars of these three purchases confirmed the details of the confidential informant's initial statement. See id. at 517. Moreover, the officer attested that the confidential informant's past tips had led to arrests, convictions, and the seizure of controlled substances. Cf. Commonwealth v. Rojas, 403 Mass. 483, 486 (1988).
The defendant's argument that the affidavit did not establish a timely connection to the place to be searched fails. The last of the three controlled buys took place within seventy-two hours of the warrant application. Although that purchase did not take place within the defendant's apartment, the seller was observed by police to leave the apartment using the defendant's car and go directly to the sale. The previous two controlled buys took place within the apartment itself. In addition, the confidential informant had observed the defendant with cocaine in the apartment within seventy-two hours of the application. The evidence was not stale. See generally Commonwealth v. Matias, 440 Mass. 787 (2004).
2. Motion for required finding of not guilty. The defendant challenges the sufficiency of the Commonwealth's evidence that the drugs introduced at trial were the same drugs seized from the defendant's apartment. Specifically, he argues that the drugs were not properly authenticated through a clear chain of custody. See Commonwealth v. La Corte, 373 Mass. 700, 704 (1977); Commonwealth v. Herring, 66 Mass. App. Ct. 360, 365-366 (2006).
Viewed under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), the evidence showed the following. All items found during the search were given contemporaneously at the scene to Detective Shampine, the evidence intake officer. He then gave the drugs to Detective Siciliano, the case officer, who placed them in the drug locker. The three bags of powder cocaine were sealed in a larger evidence bag. The rock of crack cocaine was in a separate bag. Those bags were transported by the evidence officer to the drug laboratory in Worcester. The chemist who analyzed the drugs testified that she received the larger bag containing the three smaller bags of powder cocaine. Although she had to open the larger bag in order to test the substances at the laboratory, she preserved the bag and returned it with the drugs to the police department. The original evidence bag, along with the drugs, was admitted in evidence at trial. Viewing the evidence in the light most favorable to the Commonwealth, the combined evidence from the officers and the laboratory chemist was sufficient for a rational trier of fact to find that the drugs admitted at trial were those seized from the defendant's apartment.
3. Vouching and rhetorical questions. Since defense counsel did not object, we review the prosecutor's closing to determine if there was error and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Johnson, 463 Mass. 95, 111-112 & n.15 (2012). The defendant claims that the prosecutor engaged in improper vouching. Improper vouching may occur "if an attorney expresses a personal belief in the credibility of a witness, or if an attorney indicates that he or she has knowledge independent of the evidence before the jury verifying a witness's credibility." Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989) (citations omitted). Neither occurred here. Instead, the prosecutor permissibly invited the jury to consider certain circumstances when deciding whether to believe the Commonwealth's witnesses. The defendant also contends that the prosecutor's rhetorical questions were improper. Not all rhetorical questions are improper in closing; instead, "rhetorical questions should not be used in closing argument where they could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant." Commonwealth v. Habarek, 402 Mass. 105, 111 (1988). Here, the prosecutor used rhetorical questions only to acknowledge certain weaknesses in the Commonwealth's case; his questions did not shift the burden of proof to the defendant. Cf. Johnson, 463 Mass. at 113.
Judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 14, 2014.