Opinion
11-P-1196
06-25-2015
COMMONWEALTH v. JUAN PAULINO.
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
In this consolidated appeal, the defendant, Juan Paulino, appeals from his conviction of conspiracy to violate the controlled substance laws, G. L. c. 94C, § 40, and the denial of his motion for new trial. He contends that (1) the trial judge erred in denying trial counsel's motion for a continuance; (2) various hearsay statements were admitted over objection either without proper foundation or sufficient limiting instruction; (3) the trial judge erred in denying the defendant's motion for a required finding of not guilty; (4) trial counsel was ineffective for various reasons; and (5) the motion judge abused his discretion by denying the defendant's motion for new trial without a hearing. For the reasons set forth below, we affirm.
We review the defendant's arguments on direct appeal under the applicable standards set forth below. To the extent that we address issues raised by the motion for new trial, we review for an abuse of discretion or other error of law. See Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
Discussion. 1. Motion for continuance. The defendant contends that the trial judge abused his discretion in denying trial counsel's motion for a continuance. Trial counsel, who had been appointed one year before trial began, informed the judge on the morning of trial that he did not feel prepared to proceed; the judge denied the motion on the basis that the case had "been in the system for some time." The judge elaborated on his decision when trial resumed on the second day, noting that the prosecutor on the case was retiring, and the continuance would likely be for a period of months due to the unavailability of jurors. The judge did not abuse his discretion in balancing the asserted grounds for the motion with concerns of judicial efficiency and prejudice to the Commonwealth. See Commonwealth v. Gilchrest, 364 Mass. 272, 276-277 (1973); Commonwealth v. Bryer, 398 Mass. 9, 15 (1986). The denial of the motion did not "impair the defendant's constitutional right to counsel who has had a reasonable opportunity to prepare a defense." Commonwealth v. North, 52 Mass. App. Ct. 603, 612 (2001).
2. Evidentiary issues. a. Authentication. Officer Delgado listened to a telephone conversation between the named informant and a third party in which the informant set up a drug transaction. The defendant contends that there was insufficient foundation to authenticate the voice of the third party as the defendant's.
Officer Delgado testified that after he arrested the defendant and spoke to him, he recognized the defendant's voice as the voice he previously overheard on the telephone call with the informant. In the usual course, the identification of the voice is permitted based on knowledge predating the telephone call. See Chartrand v. Registrar of Motor Vehicles, 345 Mass. 321, 325 (1963). In some circumstances, other forms of authentication are permitted. See Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) (reference to other confirmatory circumstances); Commonwealth v. Carpinto, 37 Mass. App. Ct. 51, 53-54 (1994) (use of tape recording to identify voice after the fact). Here, the confirming circumstances in conjunction with Officer Delgado's recognition of the defendant's voice were sufficient to authenticate the identification. These circumstances -- that the police were conducting a sting operation, the officer listened to a man on the telephone agreeing to deliver one ounce of cocaine to the informant at a Friendly's restaurant parking lot nearby, the defendant and his girl friend showed up at the designated location within a short period of time, and the girl friend dropped an ounce of cocaine at the scene -- were sufficient, together with the officer's identification of the defendant, to authenticate the voice. See Commonwealth v. Anderson, supra. See also Rich v. Weeks, 279 Mass. 452, 455-456 (1932); Commonwealth v. Hartford, 346 Mass. 482, 488 (1963). It was for the jury to decide whether the defendant was in fact the other party on the telephone call overheard by Officer Delgado. See Commonwealth v. Hartford, supra.
b. Hearsay. Two officers testified to out-of-court statements made by the informant. The defendant contends that these statements were inadmissible hearsay. We analyze each instance of contested testimony in turn.
Officer Delgado testified that the informant, the subject of a drug trafficking investigation, stated that "he would be willing to cooperate." Trial counsel objected on hearsay grounds. Before the jury, the Commonwealth asserted that the statement was elicited not for its truth but to explain why the police were speaking to the informant. The judge overruled the objection and gave a somewhat shorthand instruction. The evidence was properly admitted for its nonhearsay purpose. The testimony was "based on [Officer's Delgado's] own knowledge, it [was] limited to the facts required to establish [his] state of knowledge, and the police action or knowledge [was] relevant to an issue in the case." Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 383 (2003).
The judge instructed the jury: "Ladies and gentlemen, let me just tell you, under the rules of evidence it is typically not permitted -- a witness is typically not permitted to state what someone else told them. However, there are a number of exceptions to that general rule, and I find that in this case one of those exceptions applies so I've overruled the objection."
To the extent that the judge's instruction may not have clearly explained the limits on the testimony in the eyes of the jury, trial counsel did not request a more specific limiting instruction or object to the adequacy of the instruction given. We discern no substantial risk of a miscarriage of justice where some limiting instruction was given and the objection and proffered basis for admission of the testimony were lodged and explained before the jury. See Commonwealth v. De La Cruz, 405 Mass. 269, 275-276 (1989).
Lieutenant Pratt testified that the informant was going to place a telephone call. During a conference at sidebar, the judge overruled a hearsay objection, ruling at sidebar that the testimony was being offered to explain why surveillance was subsequently set up. Lieutenant Pratt then testified that as a result of the telephone call placed by the informant, surveillance was set up in the Friendly's parking lot. The evidence was properly admitted for the purpose of explaining the sequence of events and the reason for the surveillance. See Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 389-390 (2013). Lieutenant Pratt did not disclose the substance of any statements made by the informant. Rather, his testimony described police action taken "as a consequence of a conversation." Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 438 (2006), quoting from Commonwealth v. Perez, 27 Mass. App. Ct. 550, 554 (1989).
Officer Delgado was asked to elaborate on the conversation that took place with the informant. The judge overruled the defendant's hearsay objection based on the Commonwealth's assertion that the testimony was being offered only "for what was done after they had this conversation." Trial counsel did not ask for a limiting instruction and the judge did not offer one. Officer Delgado then testified that the informant said he would call his source. Trial counsel's hearsay objection was overruled. No limiting instruction was requested or given. Officer Delgado then testified that the informant "stated that he would need an ounce" and the person at the other end of the telephone "agreed and stated that they would be over shortly," referring to the Friendly's parking lot on Route 5.
It was error to admit the informant's statements. See Commonwealth v. Rosario, 430 Mass. 505, 507 (1999). The testimony repeated the substance of the out-of-court statements of the informant instead of appropriately limiting the testimony to a general statement explaining the state of police knowledge. See Commonwealth v. Tanner, 66 Mass. App. Ct. at 438-439. However, despite the lack of curative limiting instruction, see Commonwealth v. Flebotte, 417 Mass. 348, 351-353 (1994), we discern no prejudice in light of the properly admitted evidence that Officer Delgado ultimately recognized the other voice to be that of the defendant, and that the defendant agreed to meet the informant and sell him drugs. See Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001) (defendant's statements admissible as admission of party opponent). We "conclude that the claimed improperly admitted testimony exerted little or no effect upon the verdict[]." Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680 (2011).
Officer Delgado further testified that the informant identified the defendant as his source when they arrived at the designated location for the drug buy. Trial counsel's objection was overruled. For the reasons stated above, some evidence was admissible for the state of police knowledge, but admitting the substance of the statement itself was improper because of its potential for prejudice. See Commonwealth v. Tanner, supra; Commonwealth v. McLaughlin, supra at 679. However, at the close of the evidence, the judge gave a "strong limiting instruction directing the jury that they could not consider the evidence . . . for the truth of [the identification]," but were limited to consider the evidence to explain the state of police knowledge. Commonwealth v. Rupp, 57 Mass. App. Ct. at 384 This instruction, in conjunction with the properly admitted identification of the defendant by Officer Delgado (as discussed above), cured any potential prejudice to the defendant. Id. at 384-385.
3. Sufficiency. The defendant maintains that the evidence of a conspiracy was insufficient. We review the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Cullity, 470 Mass. 1022, 1023 (2015), "without regard to the propriety of the admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
"The elements of conspiracy are 'a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose.'" Commonwealth v. Nee, 458 Mass. 174, 180 (2010), quoting from Commonwealth v. Benson, 389 Mass. 473, 479, cert. denied, 464 U.S. 915 (1983). "To sustain a conviction for conspiring to distribute [cocaine], the prosecution must have introduced evidence tending to show that [the defendant] made an agreement with another person to distribute [cocaine]." Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 562 (1998). In the light most favorable to the Commonwealth, the jury were permitted to find the following: (1) the informant placed a telephone call to his source to purchase cocaine; (2) a police officer listened as the defendant agreed to meet the informant in the parking lot of a nearby Friendly's restaurant; (3) the defendant and his girl friend arrived at the agreed-upon location shortly thereafter; (4) when the girl friend was taken to be searched by a female officer, another officer observed her drop a bag of cocaine; (5) an officer later recognized the defendant's voice as the "source" on the telephone call with the informant; and (6) the defendant told his girl friend "not to say a word" after they received Miranda warnings. Based on the totality of this evidence, "[i]t was not unreasonable for the jury to conclude that the [defendant and his girl friend] had entered into an agreement for the distribution of the [cocaine]." Ibid. (defendant's familiarity with coconspirator, packages of marijuana, and defendant's statement suggesting existence of common plan sufficient evidence of conspiracy to distribute).
4. Ineffective assistance. The defendant contends that trial counsel was ineffective for several reasons. We review the defendant's claims of ineffective assistance under the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We review the denial of the motion for new trial on this basis for an abuse of discretion or other error of law. See Commonwealth v. Brown, 470 Mass. 595, 602 (2015); Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 440 (2014). a. Defendant's statement. The defendant contends that trial counsel was ineffective for failing to object to the officer's testimony that the defendant told his girl friend "not to say a word," because the statement's prejudicial effect outweighed its probative value. "The relevance threshold for the admission of evidence is low." Commonwealth v. Adjutant, 443 Mass. 649, 657 n.11 (2005), quoting from Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). The defendant's statement was relevant to the conspiracy charge. The statement permitted the inference of an agreement between the defendant and his girl friend. See ibid. Thus, the statement went to a central issue in the case. See Gath v. M/A-COM, Inc., 440 Mass. 482, 490 (2003), quoting from Commonwealth v. Jaime, 433 Mass. 575, 579 (2001) ("[T]he fact that evidence goes to a central issue in the case tips the balance in favor of admission"); Mass. G. Evid. § 403 (2015). The judge's discretion was broad, see Commonwealth v. Arroyo, supra, and failure to object did not constitute ineffective assistance of counsel.
b. Failure to call witnesses. The defendant contends that trial counsel was ineffective for failing to call either his girl friend or Detective Barkyoumb to testify. "Whether to call a witness is a strategic decision." Commonwealth v. Morales, 453 Mass. 40, 45 (2009). Such a decision will not be considered ineffective unless the decision "was manifestly unreasonable when made." Commonwealth v. Britto, 433 Mass. 596, 602 (2001), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Trial counsel had spoken with the defendant's girl friend before trial about testifying. Despite her presence at pretrial proceedings and availability, the decision not to call the defendant's girl friend, who was obviously open to cross-examination for bias, was not manifestly unreasonable. See Commonwealth v. Morales, supra at 46. See also Commonwealth v. Berry, 68 Mass. App. Ct. 78, 84 (2007).
The judge was not required to credit any suggestion -- implicit or explicit -- in trial counsel's affidavit that his decision not to call these witnesses was not strategic. See Commonwealth v. Torres, 469 Mass. 398, 403 (2014). Although defense counsel's affidavit specifically stated that certain decisions were not strategic, no such statement appears in the affidavit in connection with the decision not to call the girl friend.
The defendant also contends that counsel was ineffective for failing to call Detective Barkyoumb as a witness. Trial counsel's affidavit states that the detective admitted to stealing evidence (a cellular telephone) from one of his investigations and using it to harass a woman, was convicted of larceny and harassment as a result, was forced to resign from the police force, and was found to have lied in an affidavit filed in support of a search warrant. Counsel's affidavit also referred to a newspaper article that reported that several cases with which the detective was involved were dismissed. The defendant thus contends that the detective could have been cross-examined regarding his criminal record, resignation from the Holyoke police department, and the "deal" he authorized with the informant here.
Multiple officers were involved with this case. Officer Delgado was comprehensively cross-examined regarding the chain of events. In these circumstances, Detective Barkyoumb's testimony would have been cumulative. See Commonwealth v. Britto, 433 Mass. at 602-603. Moreover, a witness may not be called solely for purposes of impeachment. See Mass. G. Evid. § 607 (2015). Counsel's decision not to call the detective did not fall below standards expected of ordinary, fallible counsel.
Trial counsel extensively cross-examined Officer Delgado regarding any incentive the informant may have had to cooperate, the officer's failure to take notes during interactions with the informant, the failure to confiscate the telephone from the informant at any time, the failure to note the telephone number the informant called, the tightness of the girl friend's stretch clothing, and the fact that the initial patfrisk did not reveal that the girl friend had any drugs in her possession.
No claim is made on appeal that the detective was accused of stealing drugs in evidence or that he planted the drugs on the girl friend.
c. Missing witness instruction. The defendant contends that trial counsel was ineffective because he failed to request a missing witness instruction regarding the Commonwealth's failure to call Detective Barkyoumb and the informant. Availability is among the foundational prerequisites considered when deciding whether to give a missing witness instruction. See Commonwealth v. Gagnon, 408 Mass. 185, 198 n.8 (1990). Detective Barkyoumb was equally available to both parties. See Commonwealth v. Hoilett, 430 Mass. 369, 375-376 (1999). The informant could not be located and was consequently unavailable to both parties. See Commonwealth v. Williams, 450 Mass. 894, 900-901 (2008). No instruction was warranted.
d. Informant testimony. The defendant maintains that trial counsel was ineffective for eliciting testimony regarding the informant's statements on cross-examination and failing to request a limiting instruction after the testimony was admitted on direct examination. As the defendant points out, trial counsel objected to the admission of the informant's out-of-court statements when introduced by the Commonwealth on direct examination. The testimony, however, was admitted over objection. Once the testimony was in evidence, trial counsel's decision to conduct cross-examination to undermine this testimony was not manifestly unreasonable. See Commonwealth v. Daigle, 379 Mass. 541, 544 (1980) (quotation marks and citation omitted) ("When the arguably reasoned tactical or strategic judgments of a lawyer are called into question, we do not second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty"). In contrast, there appears to be no tactical basis for counsel's failure to request a limiting instruction. Despite this misstep, and in light of the properly admitted evidence and the limiting instructions by the trial judge, the defendant has not shown that better work would have accomplished something material for the defense. See Commonwealth v. Satterfield, 373 Mass. 109, 115 & n.10 (1977).
5. Motion for new trial. The judge denied the defendant's motion for new trial, which replicated virtually all the issues on appeal, without a hearing. "The decision to hold an evidentiary hearing on a motion for a new trial is a matter committed to the sound discretion of the trial judge." Commonwealth v. Bresilla, 470 Mass. 422, 441 (2015), quoting from Commonwealth v. Britto, 433 Mass. at 608. "In determining whether a 'substantial issue' meriting an evidentiary hearing under [Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001),] has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing on the issue raised." Ibid., quoting from Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). The judge found that the defendant failed to raise a substantial issue warranting further hearing. This conclusion is entitled to "substantial deference." Commonwealth v. Britto, supra. For the reasons discussed above, the motion for new trial with accompanying affidavits and evidence were inadequate "to cast doubt on the effectiveness of counsel's performance . . . [and did] not, therefore, raise a substantial issue" meriting an evidentiary hearing. Ibid.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 25, 2015.