Opinion
No. 12–P–1094.
2013-05-23
COMMONWEALTH v. Hector ZAVALA.
By the Court (RAPOZA, C.J, CYPHER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of unlawful distribution of heroin and possession of heroin with intent to distribute. He then pleaded guilty to the portions of the two indictments that charged him with being a habitual offender. On appeal, he argues that the Commonwealth failed to present sufficient evidence on the two underlying offenses. He also argues that the judge erroneously (1) denied his motion to suppress evidence; (2) denied his motion for directed verdicts on the two underlying offenses; (3) denied his motion to dismiss pursuant to Mass.R.Crim.P. 7(a), as amended, 385 Mass. 1215 (1982); (4) refused to order disclosure of the informant's identity; and (5) denied his pro se motion for a copy of the turret tape. We affirm. 1. Denial of the motion to suppress. The defendant claims that the judge wrongly denied his motion to suppress because the police lacked probable cause to arrest him and search his vehicle. In support of his argument, the defendant cites the lack of an exchange between the defendant and the van driver. “A search incident to an arrest is generally valid provided the police have probable cause to arrest ... and the search does not exceed a permissible scope.... Probable cause to arrest exists when, at the moment of arrest, the facts and circumstances known to the police officers were sufficient to warrant a person of reasonable caution in believing that the defendant had committed or was committing a crime” (citations omitted). Commonwealth v. Hill, 51 Mass.App.Ct. 598, 605 (2001). In reviewing a judge's action on “a motion to suppress, we 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. Washington, 449 Mass. 476, 480 (2007), citing Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The defendant was found not guilty on the indictment charging assault by means of a dangerous weapon.
The defendant's argument, directly challenging the motion judge's factual finding that the observed behavior was indeed an exchange, is disingenuous. At the suppression hearing, the surveilling police officer testified that there was an exchange between the defendant and the buyer. The judge credited that testimony and found, on that basis, that a drug transaction had occurred. That exchange, together with other information known to the police, i.e., the confiscation of heroin from the van driver, amply support the motion judge's decision to deny the motion to suppress.
2. Sufficiency of the evidence. We review a claim of insufficiency of the evidence under the oft-repeated Latimore standard, viewing the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
a. Distribution of heroin. The defendant argues that the evidence did not show an “exchange,” and that the event observed by the police is equally probative of his role as a seller or a buyer. The trial judge properly denied the motion for a required finding of not guilty.
The jury could have found the following facts. The police, suspecting drug activity at a certain gas station in Springfield, set up surveillance to observe traffic into and out of the establishment. The defendant arrived at the gas station in a red pickup truck. He parked next to a grey minivan in an area away from the gas pumps. The driver of the van then got out of his vehicle and leaned into the passenger window of the defendant's truck. A police officer stationed only a few feet away witnessed an exchange of objects between the defendant and the van driver, who was later identified as Mark Tajima. Both then left the gas station. Based on his training and experience, the police officer believed he had observed a drug transaction. He communicated this information to the other police officers on the surveillance team.
Within minutes, the police stopped the van and arrested Tajima. A search of the van revealed twenty packets of heroin, each stamped with an identical “Dead Zone” logo. Tajima had no money on his person. Acting on information received from the surveillance officer at the gas station and the officers who arrested Tajima, the police stopped the defendant's vehicle and placed him under arrest. A search incident to the arrest revealed seven packets of heroin, four of which bore the same “Dead Zone” logo as on the packets confiscated from the buyer. The defendant had $412 in cash on his person.
Viewing this evidence in the light most favorable to the Commonwealth, the jury reasonably could have found that the defendant sold heroin to Tajima in the gas station parking lot. An exchange in a location away from the gas pumps, the defendant's possession of cash, Tajima's lack of cash, and the defendant's possession of a smaller but identically labeled quantity of heroin all pointed to his role as the seller in the transaction. Commonwealth v. Wilson, 441 Mass. 390, 401–402 (2004). Commonwealth v. Clark, 446 Mass. 620, 623–624 (2006).
b. Possession with intent to distribute. The defendant argues that the evidence was also insufficient to prove an intent to distribute the heroin found on his person and in his vehicle. “Where the evidence is sufficient to support a guilty verdict as to the indictment alleging distribution of heroin, that same evidence is sufficient to support a conviction on the indictment alleging possession of heroin with intent to distribute. It is reasonable to infer that, where the defendant had just sold one packet of heroin from the bundle he possessed, he intended to sell more heroin from the same bundle.” Ibid. The prior transaction in this case was highly probative of the defendant's intent. Though, in other circumstances, the relatively small amount of heroin in the defendant's car and on his person might suggest personal use, in light of the additional evidence here, the jury reasonably could have declined to draw this inference. See Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 731 (1992). The jury also could consider the expert testimony that the heroin seized from the defendant was packaged to facilitate distribution. Commonwealth v. Wilson, supra. There was no error.
3. Other issues. The remaining issues lack merit and warrant only brief comment. The trial judge correctly refused to order the disclosure of the informant's identity where the informant was not involved in the transaction for which the defendant was charged. See Commonwealth v. Velez, 77 Mass.App.Ct. 270, 276 (2010), and cases cited.
The motion to dismiss for failure to timely arraign the defendant was properly denied. Rule 7(a) triggers a right to relief for delay when the defendant demonstrates prejudice. See Commonwealth v. Wright, 11 Mass.App.Ct. 276, 279–280 (1981); Commonwealth v. Judd, 25 Mass.App.Ct. 921, 922 (1987). Having failed to show prejudice from the twenty-four hour delay, the defendant is not entitled to relief.
The trial judge did not abuse his discretion in denying the defendant's pro se motion for a copy of the turret tape. Even if we concluded that the defendant, who was represented by counsel, was entitled to act independently of his attorney in filing a motion during trial, Commonwealth v. Molino, 411 Mass. 149, 153 (1991); Commonwealth v. Rodgers, 448 Mass. 538, 543 (2007), his request explained neither the reason for the delay nor the necessity of the turret tape to his defense.
Finally, the issue of ineffective assistance of counsel raised by the defendant in his brief filed pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), is without merit.
Judgments affirmed.