Opinion
13-P-649
06-19-2015
COMMONWEALTH v. RAFAEL TORRES.
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 Superior Court jury convicted the defendant of trafficking in 200 grams or more of cocaine. The defendant appeals the denial of his motion for new trial contending that (1) the judge erred in denying the defendant's motion to suppress, (2) there was insufficient evidence of constructive possession, (3) the Commonwealth's closing argument was improper, and (4) several witnesses made improper and prejudicial statements at trial. We affirm.
A second indictment against this defendant for conspiracy was nolle prosequied.
Background. We briefly recite the undisputed facts leading to the defendant's arrest, and reserve for later discussion additional facts relevant to the issues on appeal. On September 26, 2007, the New Hampshire drug task force (drug task force), in conjunction with the Vermont drug task force, arrested Jeremy Herrell for sale of a controlled drug and conspiracy. Herrell agreed to cooperate with police by providing them with his customer list and orchestrating several reverse drug buys. He also identified the defendant as his supplier. After learning that Herrell had already arranged to purchase seven ounces of cocaine from the defendant on the following day, Detective Charles Newton of the drug task force conferred with the Lowell police department.
It was agreed that Herrell (who was in New Hampshire) would call the defendant (who was in Massachusetts) to arrange the sale while the drug task force recorded the call. Detective Newton testified that the call was recorded with Herrell's consent and the permission of the Grafton County Attorney's Office, so that the Lowell police could obtain a warrant to search the defendant's apartment at 12 Grosvenor Street in Lowell (apartment). During the call, Herrell arranged to buy eight ounces of cocaine from the defendant, instead of the seven ounces previously agreed upon.
The defendant resided at the apartment with his girlfriend, Daina Deane, who was Herrell's cousin.
That same day, Lowell police officers executed a search warrant at the apartment, where they recovered 288.25 grams of cocaine from the master bedroom, (sixty-six and thirty-two hundredths grams of which was found in the pocket of a shirt hanging in the closet of the bedroom), a digital scale, a razorblade, a spoon, a toothbrush, a Coca-Cola can with a false bottom, and a grinder. Police also found a folder with a KeySpan utility bill postmarked April 17, 2007, which was addressed to the defendant at 12 Grosvenor Street, and other personal papers belonging to the defendant (all dated before January 16, 2007), which included different addresses. The defendant waived his Miranda rights and admitted to police that the drugs recovered inside the apartment were his, that "he buys three hundred grams from . . . a middle man," and resells the drugs in New Hampshire.
It is unclear from the record whether the folder containing these items was found in the master bedroom or in their infant daughter's bedroom.
1. Motion to suppress evidence. The defendant asserts that the judge erred in denying his motion to suppress because the Lowell police failed to establish probable cause for two reasons: (1) the single party consent wiretap "relied upon" in obtaining the search warrant was unlawful under both Massachusetts and New Hampshire law, and (2) the supporting affidavit did not satisfy the veracity prong of the Aguilar-Spinelli test. We disagree.
The second claim need not detain us. We agree with the judge that the affidavit satisfied the veracity prong because Herrell made statements against his penal interest, see Commonwealth v. Parapar, 404 Mass. 319, 322-323 (1989), and agreed to be named in the affidavit. See Commonwealth v. Beliard, 443 Mass. 79, 85 (2004).
The parties dispute whether Massachusetts or New Hampshire law governs the wiretap here. We need not decide this issue because we conclude that the defendant waived his claim that New Hampshire law applies by failing to raise it in the trial court. See Commonwealth v. Rivera, 429 Mass. 620, 623 (1999); Commonwealth v. Robie, 51 Mass. App. Ct. 494, 498-499 (2001). Accordingly, we consider only whether the wiretap violated the Massachusetts statute, G. L. c. 272, § 99.
Were we to consider the issue, evidence that the wiretap was lawful under New Hampshire law is found in the record, as Detective Newton testified at the hearing on the motion to suppress evidence that he received authorization from the Grafton County Attorney's Office before intercepting the communication. See N.H. Rev. Stat. Ann. § 570-A:2(II)(e); State v. McLeod, 66 A.3d 1221, 1234-1236 (N.H. 2013).
General laws c. 272, § 99, generally prohibits the warrantless interception of "the contents of any wire or oral communication." G. L. c. 272, § 99. An exception, however, exists when law enforcement officers have the consent of one party to the communication and the communication is "recorded or transmitted in the course of an investigation of a designated offense . . . ." § 99 B 4. Designated offenses include "any offense involving the possession or sale of a narcotic or harmful drug" when committed "in connection with organized crime." § 99 B 7. Organized crime, in turn, is defined as "a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." § 99 A. To satisfy the organized crime requirement, the Commonwealth need only show "that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime." Commonwealth v. Thorpe, 384 Mass. 271, 280-281 (1981).
Prior to the initiation of the wiretap, Herrell had provided police with the following information: (1) Herrell had purchased "approximately three kilos of cocaine" from the defendant over the last three months, (2) Herrell had observed the defendant "breaking up" and weighing cocaine in the Lowell apartment, and also had observed the defendant with a plastic grocery bag filled with cocaine, (3) while many of the drug transactions took place in Lowell, on several occasions the defendant met Herrell in New Hampshire, and (4) Herrell had previously arranged to buy seven ounces of cocaine from the defendant on September 27, 2007.
This information was contained in Detective Figueroa's affidavit in support of the search warrant, and is more detailed than, but otherwise substantially similar to, Detective Newton's testimony at the hearing on the defendant's motion to suppress.
Viewed collectively, this information provides reasonable suspicion of a multi-State drug conspiracy involving a substantial quantity of illegal drugs. See Commonwealth v. Eason, 43 Mass. App. Ct. 114, 120 (1997) (Commonwealth satisfied organized crime element in case involving "a multi-State narcotics investigation"), S.C., 427 Mass. 595 (1998) (reversing on other grounds); Commonwealth v. Zuluaga, 43 Mass. App. Ct. 629, 634 (1997) ("nexus with organized crime is met when a major drug sale is the subject of the investigation"). See also Commonwealth v. Penta, 423 Mass. 546, 551 (1996). There was no error in the judge's carefully considered determination that the information provided by Herrell satisfies the organized crime requirement of § 99.
Even were we to conclude that the wiretap was unlawful, the judge properly denied the defendant's motion to suppress because Herrell's admissions set forth in the affidavit established probable cause to search the apartment without the intercepted telephone conversation. See, e.g., Commonwealth v. Anthony, 451 Mass. 59, 68-70 (2008).
2. Sufficiency. Likewise, the defendant's claim that the Commonwealth presented insufficient evidence of constructive possession because any inference was "equally reasonable and probable with his lack of possession" is unavailing. When evaluating a sufficiency claim, we apply the familiar Latimore standard and view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Applying this standard, we conclude that the Commonwealth presented ample evidence from which the jury could conclude, beyond a reasonable doubt, that the defendant knew of the cocaine and had the ability and intention to exercise dominion and control over it. Aside from the defendant's admission to police that the drugs were his, the Commonwealth presented evidence that the defendant resided in the apartment, that the drugs were recovered from the master bedroom that he shared with Deane, and that sixty-six and thirty-two hundredths grams were recovered from the pocket of a shirt found hanging in the closet of the master bedroom. See Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 556-557 (1991) (defendant had constructive possession over drugs as her belongings were found in bedroom where drugs were recovered); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 99-100 (2010). Cf. Commonwealth v. Handy, 30 Mass. App. Ct. 776, 780-781 (1991). The defendant's claim that the men's clothing in the bedroom closet also could have belonged to his girlfriend's brother, Mark Deane, goes merely to competing inferences available to the jury, not the sufficiency of the evidence. See Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 832 (2008) ("The task of assessing the cogency of evidence and resolving conflicting testimony, with rare exceptions. . ., is the exclusive province of the jury" [citation omitted]).
Specifically, the Commonwealth introduced registry of motor vehicle records that listed the defendant's residence as 12 Grosvenor Street, a KeySpan utility bill in the defendant's name for the apartment, and other personal papers of the defendant.
3. Prosecutor's closing argument. The defendant also asserts that errors in the prosecutor's closing argument require reversal of his conviction. We reject the defendant's claim that the prosecutor misstated the evidence in his closing argument when he stated that Erin Dalton of the Lowell police department confirmed the defendant's address as 12 Grosvenor Street in Lowell at booking. This statement is supported by the evidence, namely, Dalton's testimony at trial, and the reasonable inferences drawn therefrom. See Commonwealth v. Johnson, 463 Mass. 95, 114-115 (2012).
During his cross-examination of Dalton at trial, the prosecutor specifically asked Dalton whether she confirmed the defendant's address during the booking process. Dalton testified that she had, and went on to state that the relevant address was 12 Grosvenor Street, Lowell.
Equally unavailing is the defendant's claim that the prosecutor's closing argument impermissibly shifted the burden of proof. The prosecutor's statement, viewed in light of the entire argument, was a fair reply to the defendant's claim that there was no evidence proving that the defendant lived at the apartment, and was an extension of his "common sense" argument. See Commonwealth v. Grant, 418 Mass. 76, 83-84 (1994); Commonwealth v. Nelson, 468 Mass. 1, 10-11 (2014). There was no error.
Specifically, the defendant focuses on the following portion of the closing argument: "Use your common sense. The defendant was staying there. He was there. He was living there. Everything points to the defendant being in that bedroom. If the defendant wasn't living there, where else would he possibly have been living, because there's--he had to be there."
Even were we to assume this statement was error, the defendant was not prejudiced. Immediately after the prosecutor's statement, defense counsel objected and the judge instructed the jury to disregard the statement. See Johnson, supra. Moreover, in his final charge, the judge instructed the jury that closing arguments are not evidence, that it is the jury's memory that controls, that the defendant is presumed innocent, and that "the law never imposes on a defendant . . . the burden of calling any witnesses or presenting any evidence whatsoever." We conclude that these proper and forceful instructions "mitigated any suggestion of burden shifting that may have arisen . . . in the closing argument." Id. at 114. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) ("We presume that a jury follow all instructions given to it . . .").
4. Witness statements. Finally, the defendant asserts that improper statements made by police witnesses require reversal of his convictions. He first contends that Detective Daniel Desmarais improperly commented on the defendant's guilt and his right to remain silent. We disagree. During her cross-examination of Detective Desmarais, defense counsel posed a number of hypothetical questions involving drug distribution cases where more than one suspect lived in the residence where the drugs were found. Defense counsel asked Detective Desmarais whether "it would be important to know" which suspect used the drug tool, and Detective Desmarais, apparently misunderstanding the question, responded "[i]f the defendant would admit it, it would help." This passing remark, was nothing more than a "theoretical point," which viewed in context, merely conveyed that direct evidence of which suspect used the tool, though not necessary, would strengthen a case. In any event, the statement could not have improperly implicated the defendant's right to remain silent because the defendant had already waived that right and willingly spoke to police. See Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113 (2011) (statement "could not have been an improper comment on the defendant's post-Miranda silence, because he did not remain silent").
Moreover, the remark easily may be interpreted as favorable to the defendant, inasmuch as the evidence Detective Desmarais described as desirable for the prosecution's case is absent here.
Lastly, we reject the defendant's claim that the use of the word "target" and reference to the search warrant violated his right to a fair trial. Evidence of the police procedures and the use of the term "target" was repeatedly elicited by defense counsel during her cross-examination of the police witnesses. At no point did she move to strike the use of the term or otherwise object to the testimony. Indeed, defense counsel used this evidence as part of the defendant's theory of the case, namely that the police failed to follow protocol and unfairly focused on him. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 260 (2011) ("The defendant's allegations of police misconduct made testimony that the police followed proper procedures relevant in order to disprove the defendant's allegations" and to provide context). In any event, the judge's limiting instruction, given in his final charge to the jury, cured any resulting prejudice. See Commonwealth v. Pillai, 445 Mass. 175, 190 (2005) ("We presume that the jury followed the judge's instruction").
Judgment affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Date: June 19, 2015.