Opinion
No. 11–P–1796.
2013-03-28
COMMONWEALTH v. Antonio ROCHA.
By the Court (GRAHAM, & GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of trafficking in cocaine in the amount of fourteen to twenty-eight grams, G.L. c. 94C, § 32E( b ). The defendant contends on appeal that (1) the police used stale evidence as the basis for a search warrant; (2) the police interfered with his right to counsel and his right to a fair trial; (3) a detective testified at trial without proper foundation; and (4) the evidence was legally insufficient to sustain a finding of guilty. For the following reasons, we affirm.
Background. On February 13, 2009, Cambridge police executed a search warrant at the defendant's suspected residence and they found, among other evidence, over fourteen grams of cocaine. Eighteen months earlier, Detective (Det.) Edward Liberacki and his partner began gathering information for the search warrant. Their basis for probable cause included (a) intelligence from a confidential informant (CI); (b) extensive surveillance of the defendant's suspected residence at 44 Lincoln Street, Cambridge; (c) two controlled buys; and (d) three trash pulls that yielded evidence of cocaine packaging and the defendant's occupancy of 44 Lincoln Street. Det. Liberacki drafted a twenty-six page affidavit to support the application for a search warrant. When Cambridge police executed the warrant, they arrested the defendant outside of 44 Lincoln Street. The defendant cooperated during the search, he referred to 44 Lincoln Street as “his apartment,” and he led the police to a dresser drawer that contained twenty-five bags of cocaine.
When the police booked the defendant, he admitted that he lived at 44 Lincoln Street. We will integrate additional relevant evidence with our analysis.
The police found one more bag of cocaine in another location.
Analysis. 1. Search warrant. The defendant contends that the magistrate who issued the search warrant relied upon stale evidence. To establish probable cause, a search warrant affidavit must “contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched.” Commonwealth v. O'Day, 440 Mass. 296, 300 (2003), quoting from Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980). While the nature of narcotics consumption and distribution can make the probable cause to search for drugs deteriorate over time, police observation of continuous conduct can overcome staleness. See Commonwealth v. Rice, 47 Mass.App.Ct. 586, 590 (1999). When the affidavit illustrates “protracted or continuous” conduct, older observations are still relevant. Commonwealth v. Matias, 440 Mass. 787, 793 (2004).
Here, Det. Liberacki's affidavit met these standards when he outlined the following sequence of events. Eighteen months earlier, the CI told him that the defendant was selling cocaine, but vehicle and arrest records showed different addresses for the defendant. Ten months later, the CI gave more information—that the defendant drove a silver BMW and parked it behind 42–44–46 Lincoln Street. The detectives confirmed that the defendant had registered a gray BMW, and they observed the same BMW park behind 42–44–46 Lincoln Street. Consequently, the detectives arranged two controlled buys with the CI in June, 2008. Both purchased substances field tested positively for cocaine.
In October of 2008, the CI told the detectives that the defendant used the door to 44 Lincoln Street. The next month, the CI told Det. Liberacki that the defendant was employing two individuals, Jose Amaral and Cesar Fernandes, to insulate him from face-to-face drug transactions. On January 15, 2009, the detectives were monitoring 44 Lincoln Street and they observed Jose and Cesar meet. Cesar entered 44 Lincoln Street and exited two minutes later. During this time, the detectives saw the defendant's BMW parked behind 44 Lincoln Street.
Over the next three weeks, the detectives conducted three trash pulls; the last one occurred on February 4, 2009. Significant yields from the trash pulls included (a) seventy-five “diapers,” many of which had cocaine residue,
and (b) prescriptions and take-out receipts with the defendant's address written as 44 Lincoln Street. Then, on February 10, the detectives watched Jose engage in a quick in-and-out visit similar to Cesar's activities in January.
According to Det. Liberacki's affidavit, a plastic sandwich bag with the two bottom corners missing indicates the packaging of two separate units of narcotics. Police commonly refer to these ripped bags as “diapers.”
We do not view any of these events in isolation; the older activity was therefore still relevant. See ibid. While the controlled buys preceded the affidavit by eight months, the detectives observed continuous suspect activity, and recovered the products of the three trash pulls. See Commonwealth v. Rice, supra at 591–592 (drug activity six weeks before the affidavit was not stale when the preceding fifteen months showed consistent criminal conduct). Six days after the third trash pull, the detectives watched Jose conduct a brief visit to the residence. Two days later, Det. Liberacki drafted the twenty-six page affidavit, which offered a justifiable inference that “the drug dealing activity in [January and early February] was a ‘protracted or continuous' activity that was still ongoing [o]n [February 13, 2010] .” See Commonwealth v. Matias, 440 Mass. at 793, quoting from Commonwealth v. Cruz, 430 Mass. 838, 843 (2000). As a result, any older evidence was not stale, and contributed to probable cause in support of the search warrant.
2. Police interference. The defendant alleges that a Cambridge police sergeant twice withheld the return of his personal property, which police had seized during the course of a separate arrest. The defendant claimed that the sergeant would return his property only if he agreed to “cooperate” and reveal “who he was working with.”
When government agents intentionally violate a defendant's right to counsel or right to a fair trial, an indictment may be dismissed if that misconduct causes prejudice to his defense. See Commonwealth v. Druce, 453 Mass. 686, 696 (2009). Absent prejudice to the defendant, intentional police misconduct will not result in dismissal. See Commonwealth v. King, 400 Mass. 283, 290–291 (1987) (clarifying Commonwealth v. Manning, 373 Mass. 438, 444 [1977], and stating that there is no per se rule that police misconduct will result in dismissal).
Here, the defendant reported the police misconduct to his attorney, who instructed his client to forgo efforts to recover the property. Moreover, the motion judge found correctly that the sergeant's actions related to a prior case, which the Commonwealth had already nol prossed. See Commonwealth v. Carlson, 17 Mass.App.Ct. 52, 56 (1983) (police permitted to discuss an unrelated charge with a defendant). In short, there is no evidence that any police misconduct harmed the defendant's right to counsel or his right to a fair trial. See Commonwealth v. King, supra at 291–292.
3. Det. Liberacki's testimony. The defendant argues on appeal that Det. Liberacki testified without foundation that Jose did not live at 44 Lincoln Street. Since the defendant did not timely object, we review for a substantial risk of a miscarriage of justice, and we find that Det. Liberacki's testimony did not “materially influence[ ]” the verdict. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
On cross-examination, the defendant confronted Det. Liberacki with the evidence that Jose's name appeared on the mailbox and on a cable bill for 44 Lincoln Street. That challenge reduced possible prejudice resulting from unfounded testimony. On redirect and over objection, Det. Liberacki provided a foundation, albeit belatedly, by stating that he had knocked on the doors of 44 Lincoln Street in search of Jose. Moreover, any evidence that Jose did (or did not) live at 44 Lincoln Street fails to foreclose the reasonable inference that the defendant also lived there and maintained, at a minimum, joint possession of the contents of the apartment. See Commonwealth v. Beverly, 389 Mass. 866, 870 (1983) (“Possession need not be exclusive. It may be joint and constructive, and it may be proved by circumstantial evidence”). Most importantly, independent evidence—chiefly the defendant's admissions—established that the defendant lived at 44 Lincoln Street. Under these circumstances, Det. Liberacki's testimony had little or no effect on the verdict.
4. Legal sufficiency. We review the denial of a defendant's motion for a required finding of not guilty to determine whether, when viewed in the light most favorable to the Commonwealth, the evidence would satisfy a rational trier of fact of each element beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To sustain a conviction pursuant to G.L. c. 94C, § 32E( b ), the Commonwealth must show, inter alia, that the defendant possessed the cocaine. See Commonwealth v. Hernandez, 439 Mass. 688, 691 (2003). On appeal, the defendant challenges only this element.
Here, the defendant contended at trial that he did not reside at 44 Lincoln Street and therefore did not have control over the cocaine. However, during both the booking process and the execution of the search warrant, he admitted that he lived there. Other evidence of his residence included keys, the parked BMW, and the fruits of the trash pulls. The residence contained (a) twenty-six packaged bags of cocaine;
(b) a digital scale; and (c) approximately $4,400 in cash.
Each bag contained approximately one-half of one gram of cocaine, which has an estimated value of fifty dollars per bag.
This evidence permitted the jury to infer more than the defendant's mere presence in the area where the police found the narcotics. See Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir.1976) (“presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency’ ”). In short, abundant evidence permitted the jury to conclude that the defendant possessed the cocaine. See Commonwealth v. Beverly, supra.
Judgment affirmed.