Opinion
18-P-1073
06-12-2020
COMMONWEALTH v. ROBERTO ECHEVARRIA, JR.
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
After a jury trial, the defendant, Roberto Echevarria, Jr., was convicted of trafficking cocaine in the amount of 200 grams or more. See G. L. c. 94C, § 32E (b) (4). On appeal, he contends that the Commonwealth failed to prove beyond a reasonable doubt that he had actual or constructive possession of the cocaine, and that opinion testimony about the defendant's guilt created a substantial risk of a miscarriage of justice. We affirm.
He was also convicted of two counts of assault by means of a dangerous weapon, see G. L. c. 265, § 15A (b); driving to endanger, see G. L. c. 90, § 24; malicious damage to a motor vehicle, see G. L. c. 266, § 28 (a); and resisting arrest, see G. L. c. 268, § 32B (c).
Discussion. 1. Sufficiency of evidence. The defendant contends that the Commonwealth failed to prove beyond a reasonable doubt that he either actually or constructively possessed a bag of cocaine found on the street under a parked vehicle because the evidence was insufficient to show that the drugs had been placed there recently. See Commonwealth v. Jefferson, 461 Mass. 821, 825-826 (2012). "In evaluating the sufficiency of the evidence, we ask whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (citation omitted). Id. We therefore summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. Forte, 469 Mass. 469, 481, (2014).
On July 26, 2016, members of a joint State-Federal task force conducted an investigation of illegal narcotics activity in Springfield and surrounding communities. They watched as the defendant and Luis Roman-Soler got into a red Ford Expedition in Springfield and drove away. The task force members followed in several unmarked vehicles, eventually following the Expedition to Holyoke.
The surveillance was conducted by task force supervisor Federal Bureau of Investigation Special Agent Mark Karangekis, and included a State trooper, the Springfield Police Department, and the Hampden County Sheriff's Department.
Task force supervisor and Federal Bureau of Investigation Special Agent Mark Karangekis attempted to stop the Expedition at the intersection of Dwight and Pleasant Streets in Holyoke. He activated his emergency lights and siren, and pulled his vehicle in front of the Expedition in an angled front-bumper-to-front-bumper position. The defendant looked at Karangekis, accelerated, drove into the front of Karangekis's car, and drove off.
Karangekis and the other task force members followed with lights and sirens activated. As the defendant slowed to make a turn from Pleasant Street onto Beacon Street, Karangekis disabled the Expedition by hitting the left rear quarter panel. On impact, the Expedition spun and stopped in the middle of the street, while Karangekis's car continued until it jumped a curb.
Karangekis saw the defendant run behind the Expedition toward the sidewalk. A green Jeep Cherokee was parked on the curb approximately fifteen to twenty feet from the Expedition's rear bumper. The defendant ran toward the back of the Jeep and up the sidewalk, which was on the passenger side of the Jeep. Karangekis could see the defendant from the defendant's back, and noticed that the defendant's hands were to his left side near his waistband but outside of Karangekis's view. After the defendant had rounded the Expedition and passed behind the Jeep Cherokee, the defendant's hands were no longer by his waistband; they were in a running position by his sides. The defendant ran toward an alley.
Karangekis pursued the defendant down the alley and with his weapon drawn, ordered the defendant to the ground. With the help of the other task force members, the defendant, who struggled to break free, was placed in custody. Other members of the task force searched the defendant and the Expedition, finding nothing. They searched the defendant's flight path, where they found a plastic bag (undamaged, intact, and tied at the top) underneath the Jeep Cherokee, six to eight inches behind the front left tire. Upon inspection, the bag appeared to contain narcotics. Analysis by a chemist with the Drug Enforcement Administration identified the substance to be cocaine with a net weight of 805.6 grams.
Karangekis looked down to see his car door and therefore did not see the defendant the entire time. Another task force member testified that he watched the passenger, Roman-Soler, the entire time and that he did not get out of the car or throw anything from the car. Karangekis theorized that the defendant had thrown the bag under the Cherokee from behind, an inference which the jury would have been permitted to make viewing the evidence in the light most favorable to the Commonwealth.
The plastic bag was found in the defendant's flight path, but there was no direct evidence as to how it got there. We therefore look to circumstantial evidence to determine whether the evidence as a whole was sufficient to support the jury's finding that the defendant had actual or constructive possession of the discarded contraband. See Jefferson, 461 Mass. at 825-826.
The defendant's car crashed near the Jeep, and he ran directly behind the Jeep. He was seen with his hands at his side before he reached the Jeep; his hands were free after he passed by. The cocaine found in a bag near the driver's side front wheel had a street value of approximately $40,000. The jury would have been permitted to find that it was unlikely that a substance that valuable would have been abandoned or left outside for a long period of time. This evidence was sufficient to permit a rational jury to conclude that the bag was recently thrown under or placed near the wheel of the Jeep. See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 552-553 (2015).
Moreover, the defendant not only fled, but fled in a manner that caused serious property damage and suggested an elevated desire to avoid contact with the police. "[F]light constitutes classic evidence of consciousness of guilt." Commonwealth v. Vick, 454 Mass. 418, 426 (2009). Although flight alone would not be sufficient to support a finding of guilt, when considered together with the other evidence, the jury were permitted to infer that the defendant fled to avoid apprehension and got rid of the drugs as he fled. "This evidence, viewed as a totality in the light most favorable to the Commonwealth, would permit a rational jury to conclude beyond a reasonable doubt" that the defendant had possession of the cocaine. Jefferson, 461 Mass. at 827.
2. Improper opinion testimony. The defendant contends that he is entitled to a new trial because task force witnesses testified that they did not call for additional testing because they already knew to whom the cocaine belonged, thus offering improper opinion testimony as to the defendant's guilt. See generally Commonwealth v. Avila, 454 Mass. 744, 754 (2009). Because there was no objection, we review for error and, if established, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
At trial the defendant asserted a Bowden defense. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980); Mass. G. Evid. § 1107 (2018). He claimed that it was Roman-Soler's cocaine, and Roman-Soler threw it under the Jeep. He argued that the task force did not test for fingerprints or DNA because it wanted multiple arrests and did not want to generate any evidence that could cast doubt on his guilt. He explored this defense through rigorous cross-examination of law enforcement witnesses and in his closing argument.
The defendant first introduced the failure to test in cross-examination of a Springfield police detective. On redirect examination of the witness, the prosecutor asked why the tape and packaging had not been sent for DNA or fingerprint testing. The witness, who had already testified that this kind of testing was not done routinely, responded, "Just the sheer volume of the cases and then fingerprints are usually to identify an unknown person to say, you know, I don't know who had this so I'm going to find out the fingerprints. A vast majority of the cases I'm involved in[,] we already know who possessed the narcotics that we're charging." Later, the prosecutor also asked Karangekis why the packaging had not been tested for DNA or fingerprints. Karangekis answered that the packaging materials did not offer good prospects for recovering useful evidence, that their decision making process was consistent with other cases, and that "[w]e very strongly believe we recovered it from individuals who we knew who they were."
"[W]hile [the] Commonwealth may explain [the] reasoning behind investigative decisions in response to [a] Bowden defense, such testimony must be approached with caution and witness[es] may not give [an] opinion regarding [the] culpability of [the] defendant." Avila, 454 Mass. at 754, discussing Commonwealth v. Lodge, 431 Mass. 461, 467 (2000). See Avila, supra at 756 n.12. The question before us is whether the witnesses' explanations went too far.
The Commonwealth was permitted to rebut the Bowden defense. See Avila, 454 Mass. at 754-755. "[T]he prosecutor may proceed by inquiring of the officer the reason for each specific omission or decision." Id. at 755, quoting Lodge, 431 Mass. at 467. The contested testimony came in response to such a question. The witnesses testified that one reason why fingerprint and DNA testing was not done was the task force members recovered the drugs on the scene, and as a general matter did not test for fingerprints and DNA when they had the parties they believed to be culpable in custody. To the extent that a jury could understand the testimony to be an opinion that the defendant was guilty, it would be improper. See Lodge, supra.
"[D]etermining precisely what evidence may be admitted to rebut a Bowden defense is a delicate and difficult task." Avila, 454 Mass. at 753. In Avila, the Supreme Judicial Court concluded in circumstances similar to those here that it was unlikely that the jury treated similar testimony as an opinion of guilt because (1) the testimony was included as one among several other permissible considerations, and (2) the judge gave a forceful contemporaneous instruction that the evidence was to be used solely for purposes of assessing the adequacy of the investigation, and not as evidence of guilt. Here too the challenged testimony was included in among other, permissible considerations. Id. at 755-756. Here, however, there was no objection, and no contemporaneous instruction was given. The judge gave a Bowden instruction in her final instructions, but no limiting instruction was included in the final instructions. We therefore do not have the same level of assurance that "there is little risk that the jury took [the] challenged testimony . . . as a confirmatory opinion of the defendant's guilt." Id. at 756.
However, even if the testimony did cross the line, there was no substantial risk of a miscarriage of justice. The evidence of guilt was overwhelming. The defendant deftly used the testimony to support his Bowden defense. Indeed, the testimony served as confirmation of the defendant's claim that the task force made its mind up about guilt before the facts were in. In this sense the testimony was consistent with a strategic absence of objection, and rendered the evidence supportive of, not harmful to, the defense presented.
Judgments affirmed.
By the Court (Sullivan, Kinder & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 12, 2020.