Opinion
No. 11–P–1493.
2012-09-17
COMMONWEALTH v. Jose VILLANUEVA.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant was convicted of possessing marijuana with the intent to distribute it, G.L. c. 94C, § 32C( a ). On appeal, he argues that the evidence against him was insufficient to sustain his conviction, and that much of that evidence should have been suppressed as the fruit of an illegal search. We affirm.
Sufficiency. The defendant's lead argument is that the evidence at trial was insufficient to prove that the substance he possessed was marijuana. Although there was no chemical analysis of the substance, the Commonwealth did offer testimony from two experienced police officers that the substance at issue looked and smelled like marijuana.
Proof of a drug's identity “may be made by circumstantial evidence, including the testimony of experienced police officers. An individual's familiarity with the properties of marijuana through past experience coupled with present observation of the substance at issue is sufficient to establish its identity.” Commonwealth v. MacDonald, 459 Mass. 148, 153 (2011) (citations omitted).
The first witness's testimony regarding the identity of the substance drew no objection. The extent to which the defendant objected to the second witness's testimony is somewhat unclear given inaudible portions of the side bar discussions. The defendant did not seek to have the record reconstructed pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979). In any event, because we conclude there was no error, the extent to which the defendant preserved the issue is beside the point.
The defendant complains that the judge never formally qualified either witness as an expert in drug identification. “In the absence of a request by the defendant, however, a judge is not required to explicitly find that the officer is qualified to testify as an expert.” Commonwealth v. Little, 453 Mass. 766, 770 n. 3 (2009). See Commonwealth v. Cantres, 405 Mass. 238, 246 (1989). While the officers might have provided more detail about the training they testified they had received in drug identification, the judge did not abuse her discretion when she implicitly determined that their training and their extensive experience, including hundreds or thousands of arrests involving marijuana, qualified them to offer an opinion about the substance's identity.
The defendant next argues that even if the officers were qualified to offer their opinions, those opinions were not “based on objective criteria as well as on sufficient training or experience.” Commonwealth v. MacDonald, supra at 154. However, the officers' testimony was not so “conclusory and equivocal” as to render it legally insufficient to support a conviction. Ibid. Both witnesses testified to extensive experience with marijuana over the course of lengthy law enforcement careers, and said that marijuana has a distinctive appearance and odor.
Importantly, this distinctiveness means that “the risk of misidentification by an expert is lower” for marijuana than for many other drugs.
In MacDonald, the court found the evidence sufficient even though the witness identified the marijuana by sight alone. See 459 Mass. at 158 n. 7 (noting that the Commonwealth's case would have been stronger had the witness opened the bag and smelled the substance). Here, the witnesses identified the substance by smell as well as by sight.
Id. at 156. The officers' testimony that the appearance and odor of the substance in front of them matched the attributes of marijuana, taken together with the other evidence in the case, was sufficient to permit the jury to conclude that the substance was, in fact, marijuana.
As in MacDonald, “[t]he defendant has cited no cases where a qualified expert misidentified marijuana.” 459 Mass. at 157. Nor has the defendant cited any cases where an expert's identification of a substance as marijuana was deemed legally insufficient to sustain a conviction; the cases cited by the defendant instead deal almost exclusively with the question of whether such expert testimony is sufficient to render harmless the erroneous admission of a certificate of chemical analysis. See, e.g ., Commonwealth v. Charles, 456 Mass. 378, 382 (2010); Commonwealth v. Melendez–Diaz, 76 Mass.App.Ct. 229, 233–234 (2010); Commonwealth v. Perez, 76 Mass.App.Ct. 439, 443–444 (2010). By contrast, cases similar to this one typically “have upheld the sufficiency of the evidence where the proof of the substance was solely by testimony of individuals who were familiar with it.” Commonwealth v. MacDonald, supra at 157, citing, e.g ., Commonwealth v. Cantres, supra at 245–247; Commonwealth v. Madera, 76 Mass.App.Ct. 154, 157–159 (2010).
The defendant's evidentiary arguments fare no better framed as claims of ineffective assistance of counsel. Finally, no substantial risk of a miscarriage of justice arose when the witnesses and counsel referred to the substance in question as “marijuana.” The witnesses' statements were largely cumulative of properly admitted opinion testimony. In addition, the judge instructed the jury that the duty to determine the identity of the substance was theirs alone, and that their conclusion was to be based solely on the evidence. We presume that the jury followed those instructions. See Commonwealth v. Caldwell, 459 Mass. 271, 278 (2011).
Motion to suppress. The defendant also appeals the denial of his motion to suppress the marijuana and other evidence found when he was arrested. The motion judge concluded that the evidence was found during a valid search incident to arrest, but the defendant maintains that the police lacked probable cause to arrest him at the time of the search. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Kennedy, 426 Mass. 703, 708 (1998), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).
The defendant's arrest occurred after police saw another individual, Pedro Rivera, place a call from a pay phone known to be commonly used to arrange drug transactions. Shortly after the call, Rivera was picked up by the defendant in a car, then dropped off less than a minute later, less than a block from where he had gotten into the car. Police stopped Rivera and found a small bag of drugs hidden in his mouth. When they subsequently approached the defendant's car they saw him raise his hand to his mouth and then begin drinking water. Believing that the defendant was attempting to swallow drugs, the police immediately opened the car door and placed him under arrest.
The defendant correctly notes that these facts are similar to those that the Supreme Judicial Court concluded could not furnish probable cause in Commonwealth v. Levy, 459 Mass. 1010 (2011). However, the police in Levy had neither confirmed that the other participant in the transaction was carrying drugs afterward, nor seen the defendant in that case attempting to swallow something when approached by police. As both this court and the Supreme Judicial Court observed, Levy presented “a close question.” 459 Mass. at 1012, quoting from Commonwealth v. Levy, 76 Mass.App.Ct. 617, 622 (2010). The additional factors present here lead us to conclude that “it was a reasonable inference, and not a mere hunch ..., that an exchange of contraband took place during the [brief] interval that [Rivera] was in [the defendant's] car.” Commonwealth v. Coronel, 70 Mass.App.Ct. 906, 907 (2007). The defendant's motion to suppress was properly denied.
Judgment affirmed.