Opinion
16-P-431
06-28-2017
COMMONWEALTH v. Melady ROMERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Melady Romero, appeals from her convictions of possession of a class A substance with the intent to distribute, in violation of G. L. c. 94C, § 32(a ), within a school zone, in violation of G. L. c. 94C, § 32J. The defendant raises several challenges on appeal. First, the defendant argues that the judge erroneously denied her motion to suppress. Second, she contends that the judge erred in admitting a certificate of drug analysis. Third, the defendant argues that the Commonwealth failed to prove that the school in question was an elementary school. Finally, the defendant argues that the judge gave an erroneous lesser included offense instruction. We affirm.
Discussion. 1. Motion to suppress. The defendant argues that the judge erroneously denied her motion to suppress because she was unlawfully seized. We disagree.
"[W]e accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Meas, 467 Mass. 434, 440 (2014) (quotation omitted).
a. Seizure. "[N]ot every encounter between a law enforcement official and a member of the public constitutes [a seizure]." Commonwealth v. Lopez, 451 Mass. 608, 611 (2008) (quotation omitted). It is well settled that "the police do not effectuate a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away." Commonwealth v. Depina, 456 Mass. 238, 242 (2010) (quotation omitted). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Commonwealth v. Franklin, 456 Mass. 818, 820-821 (2010).
"While a determination whether police have effected a seizure is necessarily based on the specific facts of the case ... we make that determination guided by the principles and holdings set forth in previous cases similar to the one presently before us." Lopez, 451 Mass. at 611.
Here, Officers Timothy Dube and Thomas Murphy walked into an open nail salon and approached the defendant. Officer Dube asked the defendant for her name and whether she had received money from "a white girl who had just [recently] entered the nail salon." The defendant answered in the affirmative. Officer Dube then asked her whether she had any drugs on her person, and the defendant began "to pat down her own body, reaching into her pockets." The motion judge found that Officer Dube told the defendant to calm down; he then observed a small plastic bag drop from her hand onto the floor; and the bag contained a brownish powder that appeared to be heroin. At this time, the defendant was placed under arrest.
The defendant was one of the three persons inside the nail salon.
Although the judge found that Officer Dube made certain observations and took certain actions which he had testified were actually undertaken by Officer Murphy, the defendant does not argue that the judge's factual findings were clearly erroneous. Rather, she claims that the officers' recovery of the small plastic bag of heroin could not form the basis of the defendant's seizure because she was "handcuffed ... before [the officers saw] the plastic baggie [of heroin] on the ground." This contention is meritless as it is contrary to the judge's explicit factual finding that the defendant was placed under arrest after the officers "saw an item drop from [the defendant's] hand on to the floor ... that appeared to be heroin."
In the present case, the record lacks any indication that the police officers used a hostile tone or issued commands to the defendant. See Lopez, 451 Mass. at 611. See also Commonwealth v. DePeiza, 449 Mass. 367, 370 (2007). "There was no evidence that the officer[s] ordered the defendant to answer [their] questions or otherwise indicated that the defendant was not free to terminate the interview." Commonwealth v. Thomas, 429 Mass. 403, 406 (1999). Significantly, the officers did not order the defendant to turn over any drugs on the defendant's person. See ibid. To the contrary, "the defendant responded to a simple question by voluntarily" patting down her clothing and reaching into her pockets, and turning over a plastic bag, which had fallen on the floor. Ibid. Therefore, we conclude that the officers did not seize the defendant when they questioned her.
b. Reasonable suspicion. Even assuming, arguendo, that the defendant was seized, in a constitutional sense, when the officers questioned her in the nail salon, this stop was justified by reasonable suspicion.
"An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the [judge's] findings." Commonwealth v. Cotto, 471 Mass. 97, 118 (2015), quoting from Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). Here, we conclude that the judge's denial of the defendant's motion to suppress is also affirmed on alternative grounds.
"[A]n investigatory stop is constitutionally justified if it is conducted on reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime." DePeiza, 449 Mass. at 371. "That suspicion must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch." Ibid. (quotation omitted).
Despite the defendant's contentions, the informant in this case was sufficiently reliable to form the basis of the police officers' reasonable suspicion that the defendant had committed or was committing a crime. "[W]hen assessing the reliability of citizens who report apparent violations of the law, we accord more weight to the reliability of those who are identified." Commonwealth v. Cavitt, 460 Mass. 617, 628 (2011) (quotation omitted). Here, the police officers received information from a named informant. See id. at 628-629. The informant provided the police officers with detailed information, stating that she had just paid off a debt to her drug dealer in the nail salon and that her drug dealer was identified as "Mandy." She also gave the police a description of the female's clothing, provided them with her phone number, informed them that she always had drugs on her, and identified the specific location in which she stored drugs on her person. See id. at 630, citing Commonwealth v. Aarhus, 387 Mass. 735, 744 (1982)"(detail of information is factor in over-all assessment of informant's reliability)." See also Commonwealth v. Lyons, 409 Mass. 16, 21-22 (1990) ("[S]ome specificity of nonobvious facts which show familiarity with the suspect or specific facts which predict behavior is central to reasonable suspicion"). Further, some of this information, such as the described clothing and name of the woman, was corroborated by the police officers when they encountered the defendant in the nail salon. Therefore, we are satisfied that the police officers here, at the very least, had reasonable suspicion to conduct an investigatory stop and question the defendant.
The judge's factual findings, that there was "a high level of drug activity" in the area and that the defendant "appeared to be extremely nervous" when the police officers encountered her, are factors that further support our reasonable suspicion analysis. See DePeiza, 449 Mass. at 373 ; Commonwealth v. Wilson, 52 Mass. App. Ct. 411, 414 (2001).
2. Admission of certificate of drug analysis. The defendant argues that the judge erred in admitting a certificate of drug analysis from the crime laboratory that tested the substances that were found as a result of the defendant's arrest. We disagree.
At trial, the Commonwealth presented testimony from a chemist, Nancy Brooks, who testified as to her opinion that the items found in the defendant's possession contained heroin. She further testified that her opinion was based on her review of the original data and graphs that were prepared by another chemist (second chemist) that she supervised and trained at the time the tests were conducted. The defendant did not object to Brooks's expert opinion, however, and her sole objection was to the Commonwealth's admission of the certificate of drug analysis that was signed by Brooks.
In light of the defendant's noted objection, as well as the portions of the record that are indiscernible after her objection, we assume that the defendant preserved her objection with sufficient specificity. See Depina, 456 Mass. at 248 n.8 ("We look to the substance of defense counsel's objection rather than his use of specific language, terms, or phrases in determining whether the objection preserves the issue for appeal"). We conclude that even with this assumption, the judge's admission of the certificate was not an error and that no unfair prejudice resulted.
"An expert may testify as to [her] opinion, even if it is based on work conducted by another analyst." Commonwealth v. Mattei, 90 Mass. App. Ct. 577, 579 (2016). However, the expert may not present, on direct examination, the facts and data on which she relied "because expert testimony to the fact[s] of the test results obtained by someone else ... [is] hearsay." Commonwealth v. Greineder, 464 Mass. 580, 583 (2013) (quotation omitted). The specific underlying facts may only be presented through cross-examination. Ibid.
Here, the Commonwealth introduced, on direct examination, a certificate of drug analysis from the crime laboratory that tested the substances found on the defendant's person. The certificate was signed by Brooks, the testifying chemist. It is clear from Brooks's signature that the certificate pertained solely to her opinion, and not the second chemist's opinion, that the items at issue contained heroin. See id. at 582-583. See also Commonwealth v. Grady, 474 Mass. 715, 723-724 (2016) ("Our law allows a witness ..., who did not himself conduct the relevant tests, to testify to his own opinion based on the data generated by the nontestifying analyst"). Indeed, the certificate does not make any reference, whatsoever, to the second chemist. Therefore, the judge did not err in admitting the certificate.
Here, Brooks testified that she was the second chemist's "training supervisor" and as a part of this role, she personally "review [ed] the material—the data that she generated as a part of her analysis ... [and] analytical techniques that she completed." We note that this fact appears to distinguish the present matter from the long line of cases addressing concerns regarding an expert's hearsay testimony about her review of the facts of test results that are obtained by another chemist. See Bullcoming v. New Mexico, 564 U.S. 647, 672-673 (2011) (Sotomayor, J., concurring in part) ("[T]his is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue ... [and] [i]t would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results"). Because we conclude that the judge's admission of the drug certificate was proper on other grounds, we express no opinion on whether this fact alone is dispositive.
We recognize, however, that the report states the weight of the powder that was found in the plastic bags recovered from the defendant's person. Indeed, this information is of the type that Brooks cannot permissibly testify to on direct examination. See Grady, 474 Mass. at 716. However, even if the defendant had raised this impropriety on appeal, which she does not, such error is not prejudicial and does not render grounds for reversal. "The weight of the drugs is not an element of the crime of possession [of a class A substance] with intent to distribute" and "the defendant thoroughly and meaningfully cross-examined [Brooks]." Id. at 723-724.
3. School zone. The defendant argues that the judge erred in denying her motion for a required finding of not guilty because there was insufficient evidence to demonstrate that the area, on which the defendant's school violation charge is based, was an elementary school under G. L. c. 94C, § 32J. We disagree.
"When reviewing a motion for a required finding of not guilty, the ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Grassie, 476 Mass. 202, 207 (2017), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The evidence and the inferences drawn therefrom must be of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Grassie, supra, quoting from Latimore, supra at 676. "The evidence may be entirely or mainly circumstantial, and permissible inferences need not be necessary, only reasonable and possible." Commonwealth v. Williams, 54 Mass. App. Ct. 236, 245 (2002).
"To sustain a prosecution pursuant to G. L. c. 94C, § 32J, ‘the Commonwealth is required to produce sufficient evidence to establish that the school is one of the types enumerated in the statute.’ " Commonwealth v. Burke, 44 Mass. App. Ct. 76, 79 (1997), quoting from Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 730 (1992). "[T]he Legislature must be presumed to have intended to limit the application of the statute to the [types of schools] specifically enumerated." Gonzales, supra at 729-730. The Commonwealth may satisfy its burden by presenting testimony of an arresting officer who has "personal knowledge that the subject school is an elementary school." Williams, 54 Mass. App. Ct. at 245 n.11.
The statute is limited to the following types of schools: "a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school." G. L. c. 94C, § 32J, as amended through St. 1998, c. 194, § 146. We reject the defendant's argument that in this case, "the question concerning the institution's accreditation [was] unanswered." To the contrary, the Commonwealth was not required to prove that Bellesini Academy was accredited because the term "accredited" does not apply to elementary schools as protected institutions under the statute. See Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325 (2008) (noting the term "accredited" within the statute applies only to preschools and headstart facilities).
"This is not a case where the Commonwealth simply relied on the name of the school to support this element." Commonwealth v. Laro, 68 Mass. App. Ct. 556, 560 (2007). Here, "there was circumstantial evidence from which the jury could rationally reach [the] conclusion" that Bellesini Academy was an elementary school. Id. at 559. The Commonwealth presented testimony from Officer Dube that Bellesini Academy was a "grammar school" and that he had knowledge that it was a functioning school at the time of the defendant's arrest. See Burke, 44 Mass. App. Ct. at 79 n.4 (noting "grammar school" is a synonym for "elementary school"). Officer Dube testified that he had been to the school as recently as a few weeks before trial and that he had seen children playing outside of the building. He stated that he also had been inside of the facility when school was in session and observed classrooms there. "Although the jury were not required to find that [Bellesini Academy] was an elementary school, it was far from irrational for them to have done so." Laro, supra at 560. See Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 631-632 (2010) ("From the standpoint of common sense ... the evidence illustrated many of the trappings of such a school that justified that inference"). Therefore, the judge properly denied the defendant's motion for a required finding of not guilty.
Despite the defendant's contentions, Officer Dube's testimony did not include the type of equivocal statements considered in Thomas, supra, where "the witness's statement [was] couched in terms of a belief about which he was not positive." 71 Mass. App. Ct. at 324. Here, Officer Dube testified definitively as to his knowledge about Bellesini Academy.
4. Lesser included offense instruction. The defendant argues that her convictions should be reversed because the judge provided an erroneous lesser included offense instruction. We disagree.
First, the defendant argues that the judge's lesser included offense instruction was erroneous because it departed from the model jury instructions. "We evaluate jury instructions as a whole, looking for the interpretation a reasonable juror would place on the judge's words, ... rather than scrutinizing bits and pieces removed from their context." Commonwealth v. Harris, 464 Mass. 425, 434 (2013) (quotation omitted). Here, the judge properly instructed the jury that "the ... offense of possession with intent to distribute also carries ... a lesser included offense of straight possession," and that if the jury found that "there was no intent to distribute," they could consider straight possession as a lesser included offense. He also instructed the jury on each of the elements of the greater and lesser included offenses and stated that if they found that the Commonwealth failed to prove each element beyond a reasonable doubt, then the defendant must be acquitted. See Commonwealth v. White, 452 Mass. 133, 138 (2008), citing Commonwealth v. Torres, 420 Mass. 479, 484 (1995)"( [N]o particular form of words required for jury instruction so long as instruction given adequately explains legal concepts)."
Even assuming, arguendo, that the judge's lesser included offense instruction was erroneous, such error does not warrant reversal. Since the defendant did not object to the judge's instruction at trial, her objection was not preserved. See Commonwealth v. Chapman, 433 Mass. 481, 489 (2001) ("[The defendant] failed to inform the judge of the specific language to which she objected, and the grounds on which such objections were being made"). Thus, we review to determine whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Robinson, 444 Mass. 102, 105 (2005).
There was no substantial risk of a miscarriage of justice in this case. First, the defendant was not entitled to a lesser included offense instruction because she conceded the factual basis of the lesser and greater offenses—that she possessed heroin and intended to distribute it—in pursuing her duress defense. See Robinson, supra at 107, quoting from Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986)"( [W]hether a particular element of a crime was contested at trial is important to a determination whether a trial error resulted in a substantial risk of a miscarriage of justice)." Thus, the judge's instruction "gave the defendant a benefit to which she was not entitled." See Commonwealth v. Roderiques, 462 Mass. 415, 426 (2012).
"In making this determination, we may consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and whether it can be inferred from the record that counsel's acquiescence was not simply a reasonable tactical decision." Commonwealth v. Roderiques, 462 Mass. 415, 426-427 (2012).
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Second, according to the defendant, the judge erred by omitting to instruct the jury on their duty to first convict the defendant of the greatest offense that was proven and to consider the lesser included offense only if the greater offense was not proven. See Instruction 2.280 of the Criminal Model Jury Instructions for Use in the District Court (2009). However, the instruction provided by the judge made it more likely that the jury would first consider the lesser included offense, and if proven, convict the defendant of that offense, before considering the greater offense. Further, it is reasonable to infer that the defendant failed to object to this instruction as a tactical decision because the manner in which the instruction was given benefitted her. Even despite this more favorable instruction, the jury convicted the defendant of the greater offense. Therefore, "[w]e can say with assurance that the error did not have a material effect on the outcome of the trial." Robinson, 444 Mass. at 107.
Judgments affirmed.