Opinion
13-P-1876
06-11-2015
COMMONWEALTH v. ANTHONY RIVERA.
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
A jury convicted the defendant, Anthony Rivera, of possession with the intent to distribute a class A substance (heroin), G. L. c. 94C, § 32. Immediately following the conviction, the defendant pleaded guilty to a second and subsequent offense penalty enhancement. G. L. c. 94C, § 32(b). See G. L. c. 278, § 11A; Commonwealth v. Pelletier, 449 Mass. 392, 396 (2007).
The jury acquitted the defendant of one count of drug trafficking, G. L. c. 94C, § 32E(c).
He raises three claims of error on his direct appeal. In his first claim of error, the defendant challenges the adequacy of the search warrant affidavit. In his second claim of error, he faults the judge for failing to instruct the jury, as requested, pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). His third challenge is to the sufficiency of the evidence as it pertains to the intent to distribute portion of the conviction. We affirm on the first two grounds but conclude that the intent to distribute portion of the defendant's conviction lacked evidentiary support.
Discussion. 1. The search warrant application. The defendant contends on appeal, as he did below, that the Commonwealth failed to establish the informant's veracity and basis of knowledge and, further, that the informant's controlled buys were not adequately supervised in that the detective did not observe which of the three floors of the dwelling the informant went to.
"In reviewing a ruling on a motion to suppress, we accept the judge's findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Montoya, 464 Mass. 566, 576 (2013).
When an affidavit in support of a search warrant application relies on information provided by a confidential informant, the affidavit must meet the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). That is, "the 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. Forbes, 85 Mass. App. Ct. 168, 173 (2014), quoting from Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). "If an informant's tip fails to satisfy one of the two prongs, independent corroboration in the affidavit may supplement the informant's tip to support a finding of probable cause." Commonwealth v. Parapar, 404 Mass. 319, 321-322 (1989).
The defendant asserts the information "X" supplied falls short in meeting either of the two prongs. He asserts that while the informant, "X," said he purchased cocaine from "T" and that "T" lived at the address searched, "X" never claimed to have purchased the drugs from "T" at "T"'s residence. As a result, the defendant claims the affidavit fails to establish a basis to know that drugs and evidence of drug sales would be present at "T"'s residence. The defendant further asserts that even after the controlled buys, the informant's veracity remained uncorroborated because the police never observed which of the three floors "X" entered or exited from. In our view, the defendant's claim of error requires little probing, as the controlled buys alone, properly executed, supported a finding of probable cause for the warrant to issue. See Commonwealth v. Warren, 418 Mass. 86, 89 (1994) ("A controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant").
In addition, a detective's observations of a well-executed controlled buy can corroborate both an informant's veracity and his or her basis of knowledge. See Commonwealth v. Baldasaro, 62 Mass. App. Ct. 925, 926 (2004). There is no question that the controlled buys here fulfilled the minimum requirements. See Commonwealth v. Desper, 419 Mass. 163, 168 (1994) (outlining the minimum components of a "controlled buy"). The detective met with "X" beforehand, searched "X" and assured himself that "X" had no drugs on him, escorted "X" to the purchase site, watched "X" enter and exit the premises, and obtained from "X" the drugs that "X" indicated he had purchased with the money provided. See ibid. Contrary to the defendant's contention, "the police [are] not required to risk disclosure of their surveillance by observing the [specific] apartment in a small multi-apartment building [such as the three-family building at issue here] an informant actually enters in the course of executing a controlled buy." Id. at 169, citing Warren, 418 Mass. at 90. Accordingly, the two controlled buys that produced the purchase of cocaine from the location where "X" indicated his cocaine supplier, "T," resided sufficiently corroborated both "X"'s veracity and his basis of knowledge. See Baldasaro, 62 Mass. App. Ct. at 926. Therefore, we conclude the judge did not err in denying the defendant's motion to suppress physical evidence.
2. DiGiambattista instruction. At trial, the defendant requested the judge to instruct the jury pursuant to the Supreme Judicial Court's holding in Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). See id. at 447-448 ("[W]hen the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention [e.g., a police station], and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled [on request] to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care"). The defendant argued that the statement he made to the police in the bedroom just prior to his arrest, regarding whether the bags found outside were his, constituted a custodial interrogation that was not electronically recorded, entitling him to the DiGiambattista instruction.
Finding that "there [was] no issue of voluntariness," the judge denied the defendant's request. However, DiGiambattista does not require as a prerequisite that voluntariness be a live issue at trial. See Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 478-479 (2014). The instruction is required upon a defendant's request simply "when the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station)." DiGiambattista, supra at 447.
When voluntariness is at issue, however, there is an additional instruction to be given. DiGiambattista, 442 Mass. at 448.
It is clear that the defendant's interrogation was not electronically recorded. It is equally clear that the questioning did not occur at a place of detention, but rather in the bedroom of a second-floor apartment. Whether the defendant was entitled to the requested DiGiambattista instruction, therefore, depends on whether his interrogation was custodial. In assessing the custodial nature of the interrogation, we look to the following factors: "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with the defendant's arrest." Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 85 (2011), quoting from Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). Applying these factors to the detectives' questioning of the defendant, we conclude that his interrogation was custodial and that the judge erred in denying his request for the DiGiambattista instruction.
Police entered the defendant's residence by force, ramming the door down. Several officers entered the home and at least two of the officers confronted the defendant in his bedroom. One of the officers immediately "grabbed" and "secured" the defendant. See Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 151, 154 (2000) (defendant's questioning in bedroom by three officers custodial); United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007).
The defendant was given the search warrant to review; it identified the target as a person known as "T" whose description matched the defendant. On this basis, the defendant could reasonably have believed that he was the target of the investigation and not free to leave. See Groome, 435 Mass. at 212 n.13 ("[T]o the extent that a person being questioned is led to believe that he is a suspect, that could objectively cause him to think that he was not free to leave").
The officers also asked the defendant incriminating questions, i.e., whether he lived at the address and whether he had thrown the drugs out the window. Furthermore, the manner of the questioning was persistent and not informal, as evidenced by the detective's testimony that the defendant "eventually" admitted to throwing the heroin out the window. See Coleman, 49 Mass. App. Ct. at 155 ("[t]he questioning was aggressive and persistent"). Finally, the questioning ended with the defendant's arrest. Viewed together, these factors depict a custodial interrogation, entitling the defendant to the DiGiambattista instruction he sought. However, our inquiry does not end here.
On cross-examination during a midtrial evidentiary hearing, Detective Gay stated that after the defendant was arrested, Gay asked the defendant about his living at the apartment. However, Gay said nothing about when (i.e., whether before or after the defendant's arrest) he asked the defendant about the heroin thrown out the window. Even absent this fact, however, we conclude that the defendant was in custody.
Having found that the defendant was entitled to the DiGiambattista instruction, and that he objected to the judge's failure to so instruct, we next consider whether the error was prejudicial. Commonwealth v. Barbosa, 457 Mass. 773, 801 (2010), cert. denied, 131 S. Ct. 2441 (2011). We note at the outset that the confession was properly admitted, as the absence of an electronic recording did not render the statement inadmissible. See Caswell, 85 Mass. App. Ct. at 478, quoting from DiGiambattista, 442 Mass. at 441 ("[W]e have to date stopped short of requiring electronic recording of interrogations as a . . . prerequisite to the admissibility of any resulting statement by the defendant").
We also consider that other strong circumstantial evidence implicated the defendant in the possession of the eighteen packets of heroin. Following the detectives' announced and forcible entry, the defendant was seen on his bed with his hands out the window, and the baggie containing the eighteen packets of heroin was located on the ground below. He was the only person observed in that room and mail bearing his name placed him living at that address. We conclude, therefore, that the defendant was not prejudiced by the judge's failure to instruct per DiGiambattista. Compare Barbosa, 457 Mass. at 801 ("The defendant's unrecorded statements were some of the weakest evidence against him"). Contrast Commonwealth v. Tavares, 81 Mass. App. Ct. 71, 74 (2011) (where there were other people in the defendant's home and the firearm he was convicted of possessing was located under a sofa cushion, "we [could not] fairly or reasonably conclude that the error did not prejudice the defendant").
3. Sufficiency. The defendant asserts the judge erred in denying his motion for a required finding of not guilty, which he made at the close of the Commonwealth's case, on the intent to distribute portion of the offense. We agree.
In reviewing a sufficiency claim, we ask whether, "considering the Commonwealth's evidence in its entirety and in the light most favorable to the Commonwealth, . . . any rational fact finder could have found all essential elements of the crime beyond a reasonable doubt." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012), citing Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "The evidence will be insufficient to support a conviction if it merely piles inference upon inference or conjecture and speculation, or if it tends equally to support either of two inconsistent
propositions." Acosta, supra at 840 (citations omitted). When a defendant makes a motion for a required finding at the close of the Commonwealth's case, the trial judge and the appellate courts must "consider only the evidence introduced up to the time that the Commonwealth rested its case." Commonwealth v. Kelley, 370 Mass. 147, 150 (1976).
The defendant additionally contends the judge erred in postponing his decision on the motion until after the jury verdict. He asserts that by waiting, the judge erroneously relied on evidence that came in through the defendant's case. Because we hold the evidence presented by the close of the Commonwealth's case insufficient to support the intent to distribute portion of the charge, we need not fully address the remainder of the defendant's contention, except to note in passing that "[i]f a defendant's motion for a required finding of not guilty is made at the close of the Commonwealth's evidence, it shall be ruled upon at that time." Mass.R.Crim.P. 25(a), as amended, 420 Mass. 1502 (1995). See Commonwealth v. Smith, 58 Mass. App. Ct. 166, 171 (2003), rev'd on other grounds by 543 U.S. 462 (2005).
Some factors to consider when evaluating an intent to distribute charge are the "distinctive packaging indicative or suggestive of distribution; possession of large quantities of drugs; the presence of implements or paraphernalia indicative of the drug trade; and the 'presence of cash in combination with pagers or other accoutrements of the drug trade' found on the defendant." Acosta, supra at 841, quoting from Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 327 (2010). While eighteen individual packets of heroin could be consistent with distribution, the inference here is equally strong that the defendant intended them for personal use. See Acosta, supra. The Commonwealth presented no testimony that the packets were "bundled" in a manner consistent with distribution. See Commonwealth v. Sepheus, 468 Mass. 160, 165 (2014). There were also no other indicia of distribution found on the defendant or in his bedroom; nor was money seized from his person or from his bedroom.
The other indicia of heroin distribution -- the 900 bags of heroin, the cutting agent, the stamp marked "Black Magic," rubber bands, the empty bags, and the scale -- were found out of view in a dresser located in a room occupied by the defendant's cousin, and not the defendant. Nothing connected the defendant to this room or those items. Contrast Commonwealth v. Montalvo, 76 Mass. App. Ct. at 324 (defendant "was in close proximity to the drugs and packaging materials that were in the open, in plain view").
The Commonwealth also presented no evidence to suggest the net amount of eighteen packets or the approximately 0.58 grams in all of heroin was so substantial that an intent to distribute could be inferred; the Commonwealth also does not argue as much now. See Sepheus, 468 Mass. at 165. Two cellular telephones were located in the defendant's room. However, this fact without more is not particularly probative. Contrast Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 115 (2003) (police found "a number of cell phones . . . [and] beepers"). The Commonwealth did establish that no paraphernalia associated with heroin use -- such as hypodermic needles -- was found in the apartment. However, the detective also testified that heroin can be snorted, which would not require the use of any drug paraphernalia. Contrast Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 540 (2012) (opinion evidence presented that defendant did not exhibit typical signs of a heroin user). Therefore, while the issue may appear close, our review of the record leads us to conclude the evidence here was insufficient to support a finding that the defendant possessed the eighteen packets of heroin with an intent to distribute.
On cross-examination of a defense witness, the Commonwealth elicited that the defendant was not known to use heroin. However, in reaching our decision, we do not consider this evidence, as it was presented during the defendant's case-in-chief after the close of the Commonwealth's case.
Conclusion. The judgment is vacated. So much of the verdict as finds the defendant guilty of the lesser included offense of simple possession of a class A substance is to stand. The remaining portion of the verdict (with intent to distribute) and the finding as to the second and subsequent offense are set aside. The case is remanded to the Superior Court for resentencing on the lesser included offense of simple possession of a class A substance.
So ordered.
By the Court (Trainor, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 11, 2015.