Opinion
14-P-185
07-14-2015
COMMONWEALTH v. SANDRA MARTINEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Sandra Martinez, appeals from her conviction of trafficking in heroin. For the reasons that follow, we affirm.
The defendant was also convicted of possession of heroin with intent to distribute in a school zone. After trial and sentencing, the trial judge allowed a motion for a required finding of not guilty on this count.
Background. During the summer of 2009, the Drug Enforcement Administration (DEA) made a series of undercover purchases of narcotics in the Northern Worcester Area (particularly in Fitchburg), targeting the ongoing criminal drug trafficking activities of the Latin Kings gang. As agents collected intelligence on one particular gang affiliate, Miguel Torres (also known as Gallo), they also became aware of the defendant, Martinez. Agents discovered that the defendant, who was Torres's upstairs neighbor (at 8 Taft Street, Fitchburg), was supplying him with drugs. On July 29, 2009, the task force used a cooperating witness named Eddie Ortiz (outfitted with a camera that recorded both audio and video), who went into the home of Martinez and recorded himself purchasing nineteen and three-tenths grams of heroin from her. The United States Attorney's Office declined to prosecute Martinez. Instead, they invited the Worcester County district attorney's office to prosecute and the decision was made by that office to proceed. Prior to trial, the motion judge denied the defendant's motion to suppress the audio-visual recordings of the controlled buy.
Latin Kings gang is a street gang who have local and national presence in the United States. It is also known as the Latin King/Queen Nation.
Discussion. 1. Motion to Suppress Audio-Visual Recordings. The policies behind the exclusionary rule are not furthered "when evidence properly obtained under Federal law in a federally run investigation, is admitted as evidence in State courts" even though it was obtained in violation of State law. Commonwealth v. Brown, 456 Mass. 708, 713 (2010). In this case, the motion judge found "that this investigation was a Federal investigation from its inception and although at different times the task force was assisted by local and State law enforcement officers, it remained under the supervision and direction of the [F]ederal agency." This finding is supported by the evidence presented at the motion to suppress hearing. We will not disturb it absent clear error. See Commonwealth v. Watson, 455 Mass. 246, 250 (2009); Commonwealth v. Mitchell, 468 Mass. 417, 421 (2014).
The motion judge credited the testimony of Special Agent Woudenberg. In brief, he testified that "Operation Northern Kings" was a Federal investigation conducted by the DEA's high incidence drug trafficking area task force. The composition of the task force consisted of DEA agents, the Federal Bureau of Investigation (FBI), postal inspection, State police, and several local departments. Local law enforcement agents were deputized as Federal officers and were under the control of Special Agent Woudenberg. The investigators were charged with responsibility to bring any evidence they gathered to the United States Attorney's Office. The defendant came to the attention of the Federal investigators in the spring of 2009 because of her affiliation with a target, Torres. Federal agents sent their undercover informant to the defendant's second floor apartment at 8 Taft Street. The informant secretly recorded the defendant in her apartment, with several of her children also there, selling nineteen and three-tenths grams of heroin to him. Agents did not obtain a warrant before recording this transaction in the defendant's apartment.
In September of 2009, agents met with Assistant United States Attorney (AUSA) David Hennessey and several others. At the meeting, AUSA Hennessey informed agents as to which of their targets the United States Attorney's Office would prosecute on the Federal level. The AUSA declined to prosecute Martinez and Agent Woudenberg then contacted State authorities. At that point, State troopers from the Massachusetts State Police Gang Unit took over the investigation and ended up making a controlled purchase from Martinez in her apartment in November of 2009.
The defendant's reliance on Commonwealth v. Jarabek, 384 Mass. 293 (1981) (Jarabek), is misplaced. In Jarabek, the Supreme Judicial Court concluded that the investigation was a "combined enterprise" between State and Federal efforts, and held that in such a case "if the State regulatory scheme imposes a stricter standard, it is by that standard that the validity of official conduct is to be judged for purposes of a motion to suppress under c. 272, § 99 P." Id. at 297. In Jarabek, unlike the present case, the decision to record conversations was made by the district attorney, and the purpose of the investigation was at all times to obtain "evidence to be used in a State, rather than a Federal, prosecution." Id. at 295. "When, as in this case, local police officers provide assistance to an essentially Federal investigation and act under Federal direction and discretion, the strict State standards barring one-party consent recordings do not apply to recordings made by Federal agents." Commonwealth v. Gonzalez, 426 Mass. 313, 317 (1997).
It makes no difference that the defendant was in her home when her conversations were recorded. Gonzalez, supra at 317-318.
2. Commonwealth's closing argument. On appeal the defendant makes both preserved and unpreserved claims that the Commonwealth's closing argument violated her Federal and State constitutional rights to a fair trial. Specifically, that the prosecutor impermissibly suggested that the Commonwealth's evidence provided overwhelming evidence of guilt, implied that the defense had an obligation to present evidence, shifted the burden of proof onto the defendant, vouched for the credibility of the Commonwealth's witnesses, misstated evidence, and referred to facts not in the record.
As a general observation, the prosecutor's closing argument has an extemporaneous quality to it that is best avoided. Lawyers now have access to a compendium of legal authorities relating to issues commonly arising in closing arguments that should be consulted. See Mass. G. Evid. § 1113 (2015).
"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." Commonwealth v. Felder, 455 Mass. 359, 368 (2009). The defense objected twice during the Commonwealth's closing argument. We review these claims for prejudicial error. Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009). First, the defendant objected to statements concerning the weight of evidence presented at trial. It is not permissible for a prosecutor to describe the Commonwealth's case as "overwhelming," "uncontested," or "unrebutted" in circumstances in which the defendant is the only one who can contradict the evidence. See Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 366-369 (2001). Here, while the prosecutor's comments were better left unsaid, because the judge instructed the Commonwealth to clarify its statement and the prosecutor did so in appropriate terms there was no prejudicial error. Compare Garcia, supra.
"Now, the defense has raised what I'd suggest is a defense of: Well, there's so much stuff there, it can't be true. Just because it looks like there's no defense there doesn't mean that we -- that she is not entitled to a defense. We have the video. She's on the video. Folks, if we had pictures of her actually weighing it [the heroin] out -- you saw the video. It's shaky. There's no doubt about it. But if there were twelve witnesses, twelve judges who were witnesses, twelve priests who were witnesses, twelve whoever you trust were witnesses with cameras taking pictures, even then Ms. Martinez has a right to a trial. Even if she confessed, she would have a right to a trial. So please don't take the fact that she has a trial, even though all the evidence points to her quilt, as any indication that there is something wrong here. Even a videotaped confession, she is still entitled to a trial. She can still have it."
In this case, when the defense objected, counsel voiced his concern at sidebar about the Commonwealth describing this evidence as a videotaped confession and the judge immediately told the prosecutor, "You are going to correct that, right?" The prosecutor then told the jury explicitly when he resumed his closing, that he did not mean to imply that Martinez had made a videotaped confession. The prosecutor also specifically reminded the jury that the defendant had "absolutely no duty to do anything in this trial," and that they should "hold [the Commonwealth] to the highest standard, beyond a reasonable doubt."
At the end of the Commonwealth's closing, the defense objected to three additional statements and arguments made by the prosecutor. First, comments made about the defendant's argument that the defendant had a tattoo on her chest as seen as she sat at the defense table during trial, but that could not be seen on the audio-video recording in the apartment. Second, she complained about comments the prosecutor made about the size and quality of the camera which recorded the buy. Lastly, she objected to comments the prosecutor made about "prior dealings" that Ortiz had with the defendant.
"Where did [Defense Counsel] show you? Right here. Not there, not anywhere else, just the center of the chest. [Defense Counsel] said, 'Hey, guess what? It's been three years. Maybe she didn't have the tattoo then.' Guess what? It's been three years. Maybe she didn't have that tattoo then. We don't know when she got tattoos. But he showed you one area, not all the areas. And you take that for what it's worth. I would suggest to you it's worth a great deal."
"He doesn't have the Hubble telescope on his head. He doesn't have a Lika or a Nicon [sic] or a Canon camera strapped to his head so he can take pictures. He doesn't have any of those Panaflex visions that they do 3-Ds with now. He has a little, tiny camera, hopefully to take pictures."
"Mr. Ortiz indicated that he knew her from prior dealings, that he had her phone number, that he had been in that apartment before. I suggest to you, ladies and gentlemen, that what he says was corroborated by the evidence you heard today. Trooper Aumais told you that they had been in her apartment, the same exact apartment that she had sold Mr. Ortiz the drugs on July 29th, just a few short months later, same apartment, same woman."
The prosecutor's comments about the defendant's tattoo did not infringe on the defendant's right not to testify. Compare Commonwealth v. Hawley, 380 Mass. 70, 88 (1980); Commonwealth v. Texiera, 396 Mass. 746, 752 (1986). The display of the defendant's physical appearance is nontestimonial evidence and does not infringe on the defendant's privilege against self-incrimination. See Commonwealth v. Kater, 388 Mass. 519, 535 (1983) (Kater). In this case, the defense made an argument that, in essence, the defendant was not the woman in the tape because she had a prominent tattoo on her chest which the jurors could easily view in the courtroom, and the woman on the tape had no such tattoo. The judge was correct in finding that, where the defendant had placed in evidence before the jury her own physical characteristics, the prosecutor was entitled to comment upon that evidence. See, e.g., Kater, supra; Commonwealth v. Roberts, 433 Mass. 45, 56 (2000). The prosecutor's comments about the camera do not constitute misstatements of evidence infringing on the defendant's fair trial rights. Compare Commonwealth v. Loguidice, 420 Mass. 453, 456 (1995). Next, the prosecutor made comments about prior "dealings" between the defendant and Ortiz. While there was no evidence presented that Ortiz had ever purchased narcotics from Martinez, the judge was warranted in finding that the word "dealings" does not necessarily refer to drug interactions. At trial, Ortiz testified he had seen the defendant "looking out the window" on several prior occasions when he had visited 8 Taft Street to purchase drugs from the first-floor tenant, Miguel Torres. There was no error.
As for the unpreserved claims of error, we review them to determine whether there was error, and second, whether that the error created "a substantial risk of a miscarriage of justice." Commonwealth v. Robinson, 444 Mass. 102, 105 (2005). The defendant asserts that the prosecutor impermissibly vouched for the credibility of the Commonwealth's witnesses. While counsel may "argue from the evidence why a witness should be believed," Commonwealth v. Raposa, 440 Mass. 684, 694-695 (2004), they may not vouch for the truthfulness of a witness's testimony. See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). See also Mass. G. Evid. § 1113(b)(3)(B) (2015). The prosecutor's comments about Ortiz are within the scope of permissible credibility argument and do not create a substantial risk of a miscarriage of justice. The defendant also points to the prosecutor's comments about the nature of the investigation and personal comments about the defendant. The prosecutor should not have commented about violence, nor about the defendant's behavior in front of her children. See Commonwealth v. Waite, 422 Mass. 792, 800-802 (1996). Nevertheless, neither comment was of such significance as to create a substantial risk of a miscarriage of justice.
When discussing undercover informant Eddie Ortiz, the prosecutor stated: "He's been a criminal. He's been a criminal as recently as this year. But you know what? That doesn't make his story a lie. How do you think he was able to work for the police, how was he able to work for the task force? Being a criminal gave him an edge, I would suggest to you. He was able to speak the lingo. He was able to work in that area where you and I, I would suggest, wouldn't be able to. Why? He's one of them. That doesn't make his testimony not true. . . . Well, why is he working for these people? Well, he told you now he is unemployed. He is not working with the [F]ederal government any longer. He hasn't worked with the [F]ederal government for some time. His last payment for this investigation happened in December of 2009. So I would suggest to you that's consistent with the story or the evidence that you have heard before the [c]ourt today. He didn't get any reduced sentences. . . . He didn't get any reduced bail. He was held. He went to jail, time served for twenty-five days. What did he get out of this? Cash, twenty-five thousand dollars cash."
"The whole purpose of this investigation was to investigate violent people who sold drugs and had weapons. You heard from Special Agent Woudenberg and from Trooper Aumais that was the focus of the investigation. Mr. Ortiz put himself in danger every time he dealt with these people. Why was he able to do it? Criminal. He knew how it worked. But did that make the danger to him any less? I would suggest to you, not a chance. He was in harm's way every time he dealt with these people."
"What kind of person deals drugs in front of their kids or in front of another individual and leaves the door open? I'm not going put a name on it. You might. I might suggest to you dumb, arrogant. These are things I would suggest to you."
Conclusion. For the above reasons, the defendant's conviction of trafficking in heroin is affirmed.
Judgments affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 14, 2015.