Opinion
13-P-1516
12-09-2014
COMMONWEALTH v. CESAR PUENTES-LEONARDO.
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, Cesar Puentes-Leonardo, was convicted by a Superior Court jury of trafficking in 100 grams or more of cocaine, in violation of G. L. c. 94C, § 32E(b)(3). On appeal, he argues that (1) the evidence was insufficient to warrant finding beyond a reasonable doubt that he was guilty of the charge; (2) the judge abused his discretion by failing to conduct a Daubert-Lanigan test to determine whether the "Hyper-G" sampling method used by the Commonwealth's drug analyst to arrive at a net weight of the cocaine was reliable in the circumstances of this case; and (3) the judge erred in failing to instruct the jury, sua sponte, on a lesser included offense of trafficking in less than 100 grams of cocaine or, alternatively, that his trial counsel's failure to request a lesser included offense instruction amounted to ineffective assistance of counsel. We affirm.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
Background. The jury were warranted in finding the following facts. On September 17, 2008, at approximately 8:00 P.M., Trooper Matthew Aumais, a member of the State police gang unit driving in an unmarked State police car in Fitchburg, stopped the defendant for operating a vehicle with a headlight out. Almost concurrently, Fitchburg police Detective Perry Pappas arrived at the scene to assist Aumais. Aumais approached the driver's side of the defendant's vehicle and asked for his license and the vehicle registration, which the defendant produced. While Aumais was speaking with the defendant, the lone occupant of the vehicle, Pappas informed Aumais of the presence of a clear plastic bag on the back floor of the vehicle. At that point, Aumais asked the defendant if the officers could take a look inside the vehicle. The defendant, who was calm and cooperative, consented to the search, telling them "[y]ou won't find anything in the car. There's nothing there. . . . You might find a little roach. Sometimes I like to smoke a little marijuana after work." The trooper asked the defendant to exit the vehicle. The defendant complied and sat on some steps on the sidewalk. At that time officers on the scene conducted a search of the vehicle. No contraband was discovered.
When the initial search yielded no contraband, State police Sergeant Gregg Nadeau called for a State police K-9 to assist in the search. Approximately twenty minutes later, Sergeant Jerry Molet arrived at the scene with K-9 officer Ronny, a Czechoslovakian German Shepard trained to locate heroin, cocaine, marijuana, and meth amphetamines. Thereafter Ronny conducted an investigation inside the defendant's vehicle.
The defendant had been calm and cooperative until Ronny began to show an "enhanced interest" in the vehicle's front dashboard. As Ronny started "going crazy on the dashboard," the defendant watched and put "his hands behind his head" and started "bending down, bobbing up and down between his knees." Eventually, the defendant remained with "his head between his knees" for a "prolonged period of time."
The troopers dismantled the dashboard and discovered a "mechanical hide" from which they retrieved a large plastic bag containing twenty smaller bags filled with "crack" cocaine and seventeen smaller bags filled with powder cocaine. The drugs were later sent to the State drug laboratory for analysis. Dominika Bielakowska, a senior analyst from the drug lab, using a sampling technique referred to as the Hyper-G technique, determined that the net weight of the cocaine tested was approximately 130 grams. The sampling technique consists of identifying a set of bags that are "very similar in the size and composition," then individually weighing a smaller sample, calculating the net weight and extrapolating that weight to the entire sample.,
At trial, Bielakowska testified regarding her use of the Hyper-G sampling technique. She stated that she weighed eleven of the seventeen bags of powder cocaine and twelve of the twenty bags of crack cocaine. All of the bags of powder cocaine appeared to her to be of the same size and volume. The bags of crack cocaine appeared to her to be of the same size and composition except one, which she weighed separately. Using the Hyper-G sampling technique, Bielakowska determined that the approximate net weight of the powder cocaine was 59 grams, and the net weight of the crack cocaine was 68.31 grams. She also determined that the net weight of the cocaine in the bag that she weighed separately was 2.03 grams.
At trial, a State trooper testified that, based on his experience, the drugs were packaged for sale and had a street value of $5,700.
At trial, the defendant took the stand in his defense and denied any knowledge of the cocaine. He testified that the vehicle he was driving belonged to a female friend, Yoani Ayala, who recently had been hospitalized. Ayala, he testified, asked him to pick up her vehicle in Fitchburg and return it to her home in Lawrence. However, at the time of his arrest, the defendant was not headed in the direction of Lawrence.
1. Sufficiency of the evidence. The primary contested issue was whether the defendant knew that the cocaine was in the vehicle, thereby warranting a finding that he had possessed the cocaine. The defendant moved for a directed verdict of not guilty at the close of the Commonwealth's evidence and again at the close of all evidence. Both motions were denied. "In evaluating a motion for a required finding of not guilty, we adhere to the rule that such motion should be denied if the evidence presented by the Commonwealth and viewed most favorably to the Commonwealth, and including all inferences not too remote, would warrant a jury's verdict that the defendant was guilty beyond a reasonable doubt." Commonwealth v. Johnson, 410 Mass. 199, 200 (1991), citing Commonwealth v. Clark, 378 Mass. 392, 404 (1979).
In order to convict the defendant of the charges, the Commonwealth had to prove that the defendant had possession, actual or constructive, of 100 grams or more of cocaine. Conviction on a theory of constructive possession requires the Commonwealth to prove beyond a reasonable doubt that the defendant had knowledge of the location of the cocaine coupled with the ability and intention to exercise dominion and control over it. Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008).
In general, intent to exercise control "is not easily susceptible of proof and is a close question." Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998). However, "[p]roof of the knowledge required by G. L. c. 94C, § 32E, may be made by circumstantial evidence. Discovery of secreted contraband in a vehicle with a defendant, without more, is not sufficient to warrant an inference of the knowledge required by the statute. Presence in a vehicle that contains contraband, supplemented by other evidence, however, may suffice to establish the defendant's knowledge that drugs are present." Alicea v. Commonwealth, 410 Mass. 384, 387 (1991) (Alicea) (citations omitted).
We conclude that the evidence, albeit perhaps not overwhelming, was sufficient with respect to constructive possession of the cocaine. In circumstances only marginally different from the facts in the present case, the Supreme Judicial Court concluded that the evidence was sufficient to support a conviction of trafficking in cocaine. See id. at 384-388.
Here, the defendant was stopped by law enforcement officials while driving a vehicle with a hidden compartment concealing powder and crack cocaine with a street value of $5,700. The jury could reasonably infer that the owner of the cache would not have allowed a third party to drive the vehicle without informing him of the existence of the contraband.
In addition, a jury reasonably could infer that the defendant had knowledge of the cocaine from his sudden dramatic change in demeanor when the K-9 officer alerted to the dashboard where the cocaine was hidden. The defendant argues in his brief that his change in demeanor amounts to a reasonable reaction to a trained dog's signal, its barking, that contraband is present in a specific location. In contrast, the Commonwealth ascribes the reaction to consciousness of guilt.
Our opinion is informed by Alicea, although the facts in Alicea are not identical to those in the case at bar. In Alicea, supra at 384-385, the defendant, the operator and sole occupant of a car with a popped ignition and $44,000 of heroin secreted in the driver's side door, was stopped by the police for operating a car with a severely cracked windshield and defective plate light. After consenting to a search of the car for contraband, the defendant's demeanor changed "remarkably" as the trooper moved to the driver's side and began to look in the door frame where the drugs were located. See id. at 385-386.
In Alicea, the defendant's change in behavior showed that he must have had knowledge of the contraband because his behavior was anticipatory of the drugs being discovered. See id. at 387388. Here, in contrast, the defendant remained calm during the search of the vehicle until K9 Officer Ronny alerted to the dashboard, thus conveying what may generally be viewed as clear and reliable information in response to specific scents of contraband. See Florida v. Jardines, 133 S. Ct. 1409, 1418 (2013) (Kagan, J., concurring) (a certified drugdetection dog is a police tool trained to respond "to specific scents so as to convey clear and reliable information").
"To the extent that conflicting inferences are possible from the evidence, it is for the jury to determine where the truth lies." Commonwealth v. Martino, 412 Mass. 267, 272-273 (1992) (citations omitted). For sufficiency purposes, we resolve questions about the credibility of the defendant's change in demeanor evidence in the Commonwealth's favor. Commonwealth v. Martin, 467 Mass. 291, 315 (2014).
Finally, the jury could have inferred consciousness of guilt on the part of the defendant who told the officers he was returning the vehicle to Lawrence, since those statements were inconsistent with the evidence regarding the car's direction and location when he was stopped. See Commonwealth v. Sinforoso, 434 Mass. 320, 328 (2001).
Thus, the above referenced facts, taken together, "tip the scale in favor of sufficiency." Id. at 330, quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989).
2. Daubert-Lanigan issue. The defendant also contends that the lab analyst's application of the Hyper-G method is scientifically unreliable in the circumstances of this case because the cocaine samples did not appear similar in density, shape, or size. Consequently, he argues, the judge abused his discretion by failing, sua sponte, to make a Daubert-Lanigan determination before allowing the drug certificates in evidence as prima facie evidence of the composition and net weight of the cocaine.
The defendant never filed a pretrial motion requesting a Daubert-Lanigan hearing in order to preserve his objection to the scientific reliability of the sampling methodology, see Commonwealth v. Sparks, 433 Mass. 654, 659 (2001), nor did he request a voir dire of the analyst prior to her testimony. Assuming, without deciding, that the issue was properly preserved, we consider the defendant's argument and review for whether the trial judge abused his discretion or committed error of law.
In Commonwealth v. Crapps, 84 Mass. App. Ct. 442 (2013), we indicated that a proper way of preserving any challenge to the extrapolation method is "by pretrial discovery, and pretrial conference and memorandum. By analogy, to preserve objections to deoxyribonucleic acid (DNA) analysis, a defendant must file an appropriate pretrial motion stating the grounds for the objections, and must request a hearing in accordance with the principles set forth in Canavan's Case, 432 Mass. 304, 309-312 (2000), and Commmonwealth v. Lanigan, [419 Mass. 15, 24-27 (1994)], to test the reliability of a scientific or technical premise for proffered evidence." Commonwealth v. Crapps, supra at 447-448 (footnote, quotations, and citations omitted).
Virtually identical sampling and extrapolation techniques are routinely employed for drug analysis and have been repeatedly approved by Massachusetts courts. See Commonwealth v. Johnson, 410 Mass. at 200-201; Commonwealth v. Shea, 28 Mass. App. Ct. 28, 33-34 (1989); Commonwealth v. Coplin, 34 Mass. App. Ct. 478, 485 (1993). Here, the defendant challenges the validity of extrapolated measurement on the ground of the allegedly disparate sizes, volume, and shape of the bags of cocaine. Thus, the question is whether the bags of cocaine presented an array of sufficiently proximate sizes to permit the use of an average weight from a representative sampling. The bags were inspected by the judge prior to their admission in evidence, the jury were able to inspect the exhibit and to assess the relative sizes of the bags considering the defendant's claim of a disparity rendering extrapolation unreliable. Cf. Commonwealth v. Connolly, 454 Mass. 808, 831-832 (2009) (by extrapolation, "jury could determine that a large, hard ball weighed more than four ounces"). Hence, the judge did not abuse his discretion or commit an error of law.
We also note that the present record furnishes us with no basis to assess the similarities or differences among the bags, and therefore no basis on which to conclude that the judge erred in considering the bags grouped by the expert as sufficiently similar to support extrapolation.
3. Jury instructions on lesser included offense. Finally, the defendant argues that the trial judge should have included an instruction for a lesser offense - trafficking in 36 grams or more, but less than 100 grams of cocaine. See G. L. c. 94C, § 32E(b)(2). We disagree. An instruction on a lesser included offense is proper if the evidence presented supports "a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Thayer, 418 Mass. 130, 132 (1994) (citation omitted). There must be "some evidence that disputes or puts into question" the element that differentiates the two crimes. Commonwealth v. Donlan, 436 Mass. 329, 337 (2002). The "some evidence" standard requires more than the "mere possibility that the jury might not credit a portion of the Commonwealth's evidence." Ibid.
Here, there was no evidence "on the element differentiating the greater and lesser offenses." Commonwealth v. Egerton, 396 Mass. 499, 505 (1986). The evidence that the net weight of the drugs was 130 grams was properly admitted and, as the judge noted, the value was significantly above the 100-grams threshold for the greater offense. The defendant did not introduce any other evidence contesting the analyst's calculation.
Since we conclude that the evidence did not warrant an instruction for a lesser included offense, the defendant's alternative theory that counsel's failure to request a lesser offense jury instruction amounts to ineffective assistance of counsel fails.
Judgment affirmed.
By the Court (Green, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 9, 2014.