Opinion
15-P-332
07-29-2016
COMMONWEALTH v. EMMANUEL G. DIAZ.
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
Following a jury trial in the District Court, the defendant, Emmanuel G. Diaz, was convicted on one count of possession of a class B substance with intent to distribute. The defendant raises two challenges on appeal. First, he contends the judge improperly admitted expert testimony that he was a drug dealer. Second, he asserts the judge erred in denying his motion for a required finding of not guilty because the evidence was insufficient to prove he possessed an intent to distribute the drugs found in his possession. We affirm.
The Commonwealth entered a nolle prosequi on an additional charge of a drug violation near a school or park.
Background. The jury could have found the following facts. On July 10, 2012, the Springfield police department was conducting surveillance of a strip mall located at the intersection of Carew Street and Armory Street in response to complaints of "open air drug dealing" in that immediate area. The surveillance focused in part on the House of Huang restaurant. This area was known to the police as a high crime area, including illegal drug activity.
A police officer observed Joseph Dellacroce, an individual that officer knew to be a drug user, enter the area and engage in a short conversation with a Hispanic male wearing a white T-shirt. This man nodded his head several times and pointed toward the strip mall. While Dellacroce remained outside, the Hispanic male in the white T-shirt ran to the strip mall and entered the restaurant.
An individual, later identified as Jorge Vega, approached Dellacroce and a conversation ensued. Vega summoned an unidentified Hispanic male, who produced crack cocaine and sold it to Dellacroce. As this transaction was occurring, the Hispanic male in the white T-shirt exited the restaurant with the defendant, and they walked in the direction of Dellacroce. The defendant was holding unidentified items in his hand. Upon observing Vega and the unidentified Hispanic male interacting with Dellacroce, the defendant and his companion turned around and walked back toward the restaurant. The defendant put the items in his hand into his mouth and entered the restaurant.
Dellacroce left the area on foot and was subsequently located by the police. A search of his person produced several small rocks of crack cocaine and a cocaine pipe. He was arrested and placed in a police vehicle. Thereafter, the police arrested Vega outside of the restaurant. Four small bags of marijuana were recovered from his person.
Several officers entered the restaurant, found the defendant seated on a bench, and placed him under arrest. An officer placed his hand on the defendant's throat to prevent him from swallowing. The defendant complied with the officer's request to open his mouth and he spit out four rocks of crack cocaine. The police transported the defendant to the police station, where an officer performed a full pat down. Approximately $103 in cash was recovered from the defendant's person.
The police were unable to locate the Hispanic male in the white T-shirt.
At trial, the cocaine removed from the defendant's mouth was admitted in evidence as an exhibit. A chemist testified that the substance recovered from the defendant's mouth contained cocaine.
There is no evidence in the record as to the denominations of the bills.
Discussion. 1. Expert opinion testimony. During trial, the Commonwealth presented the testimony of Robert Tardiff, a lieutenant with the Springfield police department. He was not a percipient witness to the events leading to the defendant's arrest but was called strictly as an expert witness. Therefore, there are no concerns implicated by having a percipient witness also testify as an expert. See Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579, 582 (1998) (noting that "[i]t is easy for the line between specific observations and expert generalizations to become blurred" and "[t]he testimony of a combined expert/percipient witness has unique persuasive value"). On direct and redirect examination, Tardiff testified, respectively, that the defendant was "a street level drug dealer" and "street level dealer." There was no motion to strike the responses as improper, therefore, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002); Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010).
While we agree that the expert's characterization of the defendant as a drug dealer was improper, see Commonwealth v. Woods, 419 Mass. 366, 375 (1995), we fail to see that it created a substantial risk of a miscarriage of justice here. The improperly admitted evidence did not stand alone. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 161 (2010) (quotation omitted) ("Where a specified intent is an element of the crime, a witness's opinion as to what the defendant intended is improper. Standing alone, such evidence cannot sustain a conviction").
The defendant rightfully does not challenge Tardiff's testimony regarding the characteristics of drug dealing in the area of Armory Street and Carew Street. Nor does he contest Tardiff's conclusion that the evidence surrounding the defendant's possession of the cocaine was consistent with distribution. See Commonwealth v. Wilson, 441 Mass. 390, 400-401 (2004) (noting it is proper for expert to opine that hypothetical facts were consistent with intent to distribute rather than with personal use). That portion of the expert's testimony properly explained to the jury the significance of the evidence in the context of a drug distribution and supported a reasonable inference of the defendant's intent to sell drugs to Dellacroce. See generally Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539 (2012).
Other evidence also supplied a basis from which a jury could reasonably infer the defendant's intent to distribute an illegal substance. The Commonwealth presented the firsthand account of Sergeant Stephen Kent, who had witnessed the events leading to the defendant's arrest. See Woods, supra at 375-376. Detective John Wadlegger testified, without objection, that the packaging of the cocaine seized from the defendant was "consistent with street level distribution." This testimony, coupled with the recovery of four individually wrapped bags of cocaine recovered from the defendant's mouth, "gave rise to a strong inference as to the nature of the [drug] transaction." Id. at 376.
The defendant further contends that the prosecutor improperly repeated the faulty testimony during her closing argument. As there was no objection, we review for a substantial risk of a miscarriage of justice. The Commonwealth properly concedes the prosecutor's reference to such evidence was improper but asserts, nevertheless, that no substantial risk of a miscarriage of justice was created. We agree.
In closing, the prosecutor argued: "Lieutenant Tardiff says, 'Yeah, okay. It's not a large amount of cocaine. But taking all the circumstances into what happened here, he's definitely there to sell. He's there to distribute.'"
Considering the "context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury," the error, in our view, did not materially influence the verdict. Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). See Randolph, 438 Mass. at 297-298. The prosecutor's isolated comment consisted of only four lines in an eight page closing argument. The fact that the defendant did not object or request a curative instruction provides "some indication that the tone, manner, and substance" of the argument were not unfairly prejudicial. Commonwealth v. Toro, 395 Mass. 354, 360 (1985). See Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 173 (2001) (certain erroneous closing remarks "are de minimis and do not individually or cumulatively suggest a substantial risk of a miscarriage of justice").
Furthermore, the judge's charge to the jury properly guided the jurors as to their role as judges of the facts and the credibility of the witnesses, including the credibility of witnesses "with special training or experience." See Commonwealth v. Richardson, 423 Mass. 180, 184-185 (1996). The judge's preliminary and final charge to the jury also cautioned the jury that the closing arguments of counsel are not evidence. Accordingly, we do not entertain "a serious doubt whether the result of the trial might have been different had the error not been made." Randolph, supra at 297, quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
2. Sufficiency of the evidence. The defendant next contends the judge erred in denying his motion for a required finding of not guilty at the end of the Commonwealth's case and again at the close of all evidence. He contends the Commonwealth failed to prove that he possessed an intent to distribute. We disagree. Where, as here, the quantity of the substance is insufficient to allow a rational trier of fact to find, beyond a reasonable doubt, an intent to distribute, the Commonwealth must offer evidence of other "indicia or plus factors" to meet its burden on this element of the offense. Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841 (2012). Factors probative of an intent to distribute include, but are 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 pagers or other accoutrements of the drug trade' found on the defendant." Ibid., quoting from Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 327 (2010).
In our estimation, the evidence here, viewed in the light most favorable to the Commonwealth, was sufficient to establish that the defendant possessed the four bags of cocaine with an intent to distribute. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). The evidence established that the cocaine was individually packaged in "dime sized" quantities and stored in the defendant's mouth. The evidence indicated that the defendant did not carry any paraphernalia associated with the use of crack cocaine, for example, he did not possess a pipe or a straw. See Montalvo, supra. The Commonwealth's expert testified that four packets of cocaine in the mouth of someone who did not have an implement for personal use would be consistent with a street level sale. Viewed in its totality, this evidence sufficiently supported the reasonable inference that the defendant intended to sell the drugs in his possession. See Latimore, supra; Commonwealth v. Soto, 45 Mass. App. Ct. 109, 112 (1998); Commonwealth v. Ahart, 63 Mass. App. Ct. 413, 416 (2005). Accordingly, where the evidence of the defendant's intent to distribute did not rest solely on the expert's improperly admitted testimony, we conclude the judge did not err in denying the defendant's motions for a required finding of not guilty. See Madera, 76 Mass. App. Ct. at 161 (quotation omitted) ("Where a specified intent is an element of the crime, a witness's opinion as to what the defendant intended . . ., [s]tanding alone, . . . cannot sustain a conviction").
For purposes of sufficiency we also measure the improperly admitted characterization of the defendant as a drug dealer "without regard to the propriety of the admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
The defendant asserts Commonwealth v. Sepheus, 468 Mass. 160, 167 (2014), controls in that but for the wrongly admitted expert testimony, the evidence there, which the defendant contends is materially identical to the evidence the Commonwealth presented here, did not support a finding of an intent to distribute. That argument is unavailing. In Sepheus, supra at 163-169, the Supreme Judicial Court concluded that, on the question of the sufficiency of the evidence, the expert testimony provided the support for the conviction. Here, the expert testimony is one of several factors that provides support for the defendant's conviction.
Judgment affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: July 29, 2016.