Opinion
14-P-1981
04-26-2016
COMMONWEALTH v. SAMUEL VELEZ.
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
The defendant, Samuel Velez, was convicted of possession of a class A substance, heroin, with intent to distribute and possession of a class B substance, cocaine, with intent to distribute. On appeal, he claims that (1) the court room was closed during voir dire, violating his right to a public trial under the Sixth Amendment to the United States Constitution, (2) the judge erred in failing to declare a mistrial after the prosecutor made an improper and prejudicial opening statement and one of the Commonwealth's witnesses later testified on the same matter, (3) the judge abused his discretion in ruling on a motion in limine that the Commonwealth was free to impeach the defendant with prior convictions if he testified, (4) the Commonwealth committed discovery violations requiring a new trial, and (5) there was insufficient evidence to convict him. We affirm.
1. Court room closure. The defendant claims that closing the court room to the public just prior to voir dire violated his Sixth Amendment right to a public trial, that defense counsel properly preserved the issue, and that this amounted to structural error that requires us to reverse his conviction.
"In claiming that his Sixth Amendment right to a public trial was violated, [t]he burden is clearly on the defendant to demonstrate that the public was excluded from his trial." Commonwealth v. Downey, 78 Mass. App. Ct. 224, 229 (2010), quoting from Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107-108 (2010). As this issue is raised here on direct appeal and not by a motion for new trial, we rely solely on the trial transcript to resolve the court room closure question.
Although we can conclude from the transcript that the public was asked to leave the court room prior to voir dire, we cannot determine whether the public was allowed immediately to reenter the court room upon the seating of the venire or whether the length of the alleged closure was "so trivial or de minimis that it falls entirely outside the range of 'closure' in the constitutional sense." Id. at 109.
It is also unclear whether the issue was procedurally waived. See Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). On this record, without the benefit of a motion for a new trial, it is unclear whether defense counsel indicated an intent to implicitly withdraw his objection by saying "[t]hank you," after hearing the judge's explanation of the need to accommodate the venire. See Commonwealth v. Vallejo, 455 Mass. 72, 76-77 (2009). Because it is the defendant's burden to "demonstrate that the public was excluded from his trial," these unresolved factual issues are fatal to his public trial claim on direct appeal. Downey, supra at 229, quoting from Cohen (No. 1), supra at 107-108.
2. Improper and prejudicial remarks. The defendant claims that the trial judge erred by not declaring a mistrial, sua sponte, after certain improper remarks were made by the prosecutor in her opening statement or after a related remark was made during the testimony of Detective Patrick Connor. We review for abuse of discretion. See Commonwealth v. Cunneen, 389 Mass. 216, 223 (1983).
a. Prosecutor's opening statement. The prosecutor improperly remarked during her opening statement that officers in the Tewksbury police department had initially approached the defendant's hotel room during a "possible investigation concerning a breaking and entering into a motor vehicle," even though there was no evidence that the defendant was the target of that investigation. We are confident that any prejudice caused by the remark was remedied by the judge's prompt, specific curative instructions and his final instruction directing the jury to ignore all stricken statements. See Commonwealth v. Clifford, 374 Mass. 293, 298-299 (1978). "This court adheres to a practical view which does 'not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration.'" Ibid., quoting from Commonwealth v. Gordon, 356 Mass. 598, 604 (1970).
We next turn to the prosecutor's misstatement during her opening remarks that the defendant was "placed under arrest for distribution of a class A and class B substance" rather than possession with intent to distribute, the proper charge. "In analyzing whether an improper statement has a prejudicial effect, we consider the prosecutor's entire argument, as well as the judge's instructions to the jury and the evidence presented at trial. Based on all these factors, the single misstatement at issue does not require" a mistrial. Commonwealth v. Fernette, 398 Mass. 658, 666 (1986). Any prejudice was cured when the judge promptly allowed the prosecutor to apologize and restate the correct charges, and the cure was reinforced when the parties reiterated the correct charges during closing arguments prior to the judge's final instructions on the elements of possession with intent to distribute. Cf. Cunneen, supra at 223-224 (where prosecutor's "fleeting" misstatement of evidence "was apparently inadvertent, and was not repeated," and was promptly corrected by judge, effect was not sufficiently prejudicial to warrant mistrial).
b. Detective Connor's testimony. Similarly, we discern no uncured prejudice resulting from Detective Connor's attempt to mention the Tewksbury police department's breaking and entering investigation. His attempt was interrupted by an objection from defense counsel, and was immediately followed by the judge's order that the remark be stricken and disregarded by the jury. We presume that the jury followed those instructions. See Clifford, supra at 298-299. We discern no error in the fact that the judge did not, sua sponte, declare a mistrial in response to these improper statements. See Commonwealth v. Garrey, 436 Mass. 422, 435 (2002).
3. Impeachment with prior convictions. The defendant claims that the trial judge abused his discretion when he denied the defendant's motion in limine to exclude character evidence related to his prior convictions, and ruled instead that if the defendant took the stand, the prosecutor could impeach him pursuant to G. L. c. 233, § 21, with his prior convictions for larceny and breaking and entering. See Mass. G. Evid. § 609 (2016). The defendant chose not to testify.
"In conducting a review for an abuse of discretion, we . . . analyze[] several factors, including whether the prior conviction is substantially similar to the crime charged, whether the prior conviction involves a crime implicating truthfulness, whether there were other prior convictions that the Commonwealth could have used to impeach the defendant, and whether the judge conducted the required balancing test."Commonwealth v. Little, 453 Mass. 766, 773 (2009) (citations omitted).
We conclude that the prior convictions were not "substantially similar to the crime[s] charged," a "paramount factor" in our analysis. Ibid. While we cannot determine from the record whether the defendant's breaking and entering conviction involved an intent to commit theft, the defendant's larceny conviction "pertains to [his] truthfulness." Commonwealth v. Pierce, 66 Mass. App. Ct. 283, 289-290 (2006). See Commonwealth v. Sheeran, 370 Mass. 82, 89 (1976) (observing for the purposes of impeachment with a "prior conviction . . . for breaking and entering . . . with intent to steal and stealing goods . . . . [, that] it is not irrational to infer that a thief may also be a liar"). We discern no abuse of discretion.
The defendant also argues that the convictions should have been excluded because of the subsequent statements by the prosecutor and Detective Connor to the effect that the police were investigating a breaking and entering. The defendant, however, never asked the judge to reconsider his ruling in light of these statements. As previously noted, the judge struck these statements and issued curative instructions.
4. Discovery violations. The defendant claims that a new trial or a reversal of his conviction is warranted to remedy prejudicial effects of the Commonwealth's delayed disclosure of several pieces of evidence. We conclude that two documents, the chemist's laboratory log and the Tewksbury police department's evidence log, were not properly disclosed to the defendant prior to trial although information in them may have been relevant to the chain of custody. No prejudice resulted, however, from the delayed disclosure.
The Tewksbury police evidence log, in particular, was offered as an exhibit by the prosecutor, and we conclude that it was therefore subject to mandatory discovery pursuant to Mass.R.Crim.P. 14(a)(1)(A)(vii), as amended, 444 Mass. 1501 (2005).
"When the ground for a . . . new trial 'involves late disclosure by the prosecution, without any showing of bad faith on its part . . . a defendant is required to show material prejudice from the [delay in] disclosure before a new trial can be considered.'" Commonwealth v. Stote, 433 Mass. 19, 22 (2000), quoting from Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997). We identify no uncured prejudice regarding the delayed disclosures. Defense counsel never asked the State chemist, Sarah Clark, for the hard copy of the laboratory log after she testified that she had brought it with her. Defense counsel also did not object when the Commonwealth sought to admit the Tewksbury police evidence log as an exhibit. Additionally, counsel never requested a recess to review the newly disclosed evidence. We consider such conduct by defense counsel as tending to confirm that the defendant was not prejudiced by the delayed disclosures. See Hamilton, supra at 70-71. Further, the "defendant's opportunity to cross-examine extensively regarding previously undisclosed [documents] effectively removed any prejudice." Commonwealth v. Hardy, 431 Mass. 387, 392-393 (2000), citing Commonwealth v. Costello, 392 Mass. 393, 398 (1984).
Given that "[t]he defendant has offered no explanation of how trial tactics would or should have changed had the defendant been aware of this evidence earlier," we discern no appreciable prejudice created by the untimely disclosures by the Commonwealth. Hardy, supra at 392. "[T]he judge possessed considerable discretion in dealing with the problem created by the prosecution's late disclosure of . . . evidence." Hamilton, supra at 70. See Mass.R.Crim.P. 14(c)(1), (2), as appearing in 442 Mass. 1518 (2004). There was no abuse of discretion.
5. Sufficiency of the evidence. The defendant claims that there was insufficient evidence to convict him of either charge. At the close of the Commonwealth's evidence, the defendant moved for required findings of not guilty. That motion was denied.
"When reviewing the denial of a motion for a required finding of not guilty, we inquire '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. Sepheus, 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The elements of both possession with intent to distribute charges are "(1) knowingly or intentionally possessing the illegal substance[s] (i.e., cocaine [and heroin]) and (2) doing so with the specific intent to distribute." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012). See Criminal Model Jury Instructions for use in the District Court, Instruction 7.800 (2009). At trial, the defendant proceeded principally on a theory that he possessed the heroin and the cocaine, but did so for personal use without an intent to distribute those drugs.
"[T]here are a number of indicia that have been considered in the assessment of the intent to distribute, including but not limited to 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 . . . other accoutrements of the drug trade . . . ." Acosta, supra at 841 (quotations and citations omitted). All these factors were present in the instant case, and they support the jury's finding that the defendant possessed the heroin and the cocaine with the intent to distribute.
Sergeant Edward Troy of the Massachusetts State police testified that the packaging of all the drugs in the instant case was "consistent with street-level distribution packaging." Two cellular telephones, Scotch tape, and a razor blade were found in the defendant's motel room, all of which Sergeant Troy testified were used in the packaging or sale of heroin or cocaine; these are "drug paraphernalia [that] are relevant to show the defendant's predisposition toward distribution." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427 (1985). See Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 118 (2003). Based on the evidence presented, the jury properly could have considered the large quantity and weight of the branded heroin packets as evidence of intent to distribute heroin, Commonwealth v. Ellis, 356 Mass. 574, 575, 579 (1970), and they could have considered, in turn, the presence of that heroin together with the other evidence to conclude that the defendant had possessed the cocaine with the intent to distribute it. See Commonwealth v. Rivera, 44 Mass. App. Ct. 452, 454 (1998). See also Commonwealth v. Pratt, 407 Mass. 647, 653 (1990).
While the .68 grams of cocaine found in the defendant's motel room might not, by itself, have been sufficient to support an intent to distribute, see Sepheus, 468 Mass. at 165; Acosta, 81 Mass. App. Ct. at 841, "[t]he amount of cocaine found in [the defendant's motel room] affects the weight, not the sufficiency, of the evidence." LaPerle, supra at 429. "[T]he Commonwealth . . . may resort to other evidence to support an inference of an intent to distribute." Sepheus, supra. In addition to the packaging of the cocaine and the associated drug paraphernalia such as the razor blade, Detective Connor testified that he found some of the cocaine in the same motel bed that the defendant had been lying on, next to two yellow packets that the chemist from the State Crime Laboratory later identified to be branded packets of heroin.
Considering "all the facts and circumstances developed at the trial," Sepheus, 468 Mass. at 164 (quotation omitted), and "viewing the evidence in the light most favorable to the prosecution," Latimore, 378 Mass. at 677, there was sufficient evidence to warrant the jury's guilty verdicts on both charges of possession with intent to distribute. The defendant's motion for a required finding was properly denied.
Judgments affirmed.
By the Court (Kafker, C.J., Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 26, 2016.