Opinion
11-P-171
02-24-2012
COMMONWEALTH v. JOSEPH FENCHER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions of possessing and distribution of cocaine, a school zone violation, and of being a habitual criminal offender. He asserts error in the admission in evidence of recorded phone conversations, a police officer's opinion testimony about one of those recordings, and the exclusion of a letter which the defendant claims tended to exonerate him. We affirm.
Specifically, the defendant was charged with the following: one count of distribution of cocaine, subsequent offence, G. L. c. 94C, § 32A(d); one count of possession of cocaine with intent to distribute, subsequent offense, G. L. c. 94C, § 32A(d); two counts of drug violations near a school zone or park, G. L. C. 94C, §32J, one count of conspiracy to violate the controlled substances act, G. L. c. 94C, § 40; and five counts of being a habitual offender, G. L. c. 279, § 25. One count of being a habitual offender and the conspiracy charge were dismissed.
Background . We set forth the facts as the jury and judge could have found them. In November of 2007, the Worcester police department recorded several multi-party phone calls among Christopher Thomas, Thomas' girlfriend Sandy Armstrong, and the defendant. Thomas was incarcerated at the time of the calls. Three phone conversations, all held November 13, 2007, were introduced as evidence against the defendant at trial. In the first call, Thomas and Armstrong discussed setting up a three-way call with a person named 'Joe,' which is the first name of the defendant. In the second call, in which the defendant participated by his own admission, Thomas informed Armstrong that he left her 'a little something.' Also, in this call, the defendant, Armstrong and Thomas discussed that if Armstrong was 'to call him if she needs any help.' During the third call, Thomas told Armstrong that while Thomas was imprisoned, Armstrong was to 'deal with Joe' and made a reference to 're-upping' . Additionally, in the third call, Armstrong asserted that someone by the name of 'Joey' was harassing her and told Thomas, 'When, you get out, you got to check that -- check that nigger.' Finally, on this third call, Armstrong told Thomas that she had just 're-upped' and said, 'I don't want to talk about it on the phone.'
The defendant was convicted by a jury with the exception of the habitual offender and conspiracy charges, which were tried jury waived.
One of the investigating police officers testified that his interpretation of this statement was that it referred to cocaine.
It is not clear from the record if the 'him' in this call is the defendant or Thomas.
The defendant testified at trial that this term referred to the replenishment of a drug supply.
As a result of these recorded phone calls, the Worcester police called Armstrong's phone on November 26, 2007, to set up an undercover drug purchase. The officer who made the calls testified that, while speaking to Armstrong about the price of 'a ball,' he heard the defendant state in the background, 'If he knows YG, he knows it's 150 for a ball.' The officer also testified that in a subsequent call regarding the upcoming purchase, he heard a voice in the background, that he recognized as the defendant's, state, 'Tell him to watch out for the black car. When we get there, have him get out of his car and get in with us.' A short time later, a black Mercury drove into a parking lot where the undercover officer was waiting. Armstrong exited the Mercury, entered the officer's truck, sold him cocaine, returned to the Mercury, and was arrested there along with the defendant. After removing the defendant from the car, an officer at the scene remarked that the defendant 'must have had [the drugs] in his hand,' to which the defendant quipped, 'Get it right. I was sitting on it. I wasn't holding on -- I didn't have it in my hand.' The defendant, in response to the officer's telling him he nevertheless possessed it said, 'So what? I'll get out.'
A police officer testified that 'a ball' referred to 3.5 grams of cocaine.
'YG' refers to Thomas.
At trial, the defendant admitted that he was one of the parties heard on the recorded three-way calls and that he was aware that the term 're-up' meant to replenish a drug supply. The defendant also testified that Thomas had asked him to 'look out' for Armstrong and that he did not go by the name 'Joey.' We reserve the discussion of further facts for our analysis of the legal issues.
Discussion. Admission of taped conversations. The defendant first argues that the judge erred in admitting the recorded phone conversations as hearsay subject to an exception for statements made in furtherance of a joint venture. He also urges the court to reverse his conviction because the mention of the name 'Joe' in the conversations was not relevant and that the admission of one of these calls deprived him of his right to confrontation.
'Out-of-court statements by joint criminal participants are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it.' Commonwealth v. Clarke, 418 Mass. 207, 218 (1994). To admit these statements, the Commonwealth must prove the existence of a joint criminal venture by a preponderance of the evidence, without using the statements in question. Commonwealth v. Stewart, 454 Mass. 527, 534 (2009). Also, '[m]atters surrounding the history of the [joint venture], including statements of [joint venturers], may be admissible even if they predate the conspiracy.' Commonwealth v. McLaughlin, 431 Mass. 241, 248 (2000). The judge has discretion to determine whether this evidence is too remote to be relevant, and his decision will not be disturbed absent 'palpable error.' Ibid. See Commonwealth v. Borans, 379 Mass. 117, 145-148 (1979) (holding that rule applies to both coconspirators and joint venturers).
As a threshold matter, the evidence of a joint venture to possess cocaine with the intent to distribute and to distribute cocaine, exclusive of the recorded phone calls, was proven by a preponderance of the evidence. The evidence, discussed supra, makes it more likely than not that the defendant participated in the crime by possessing and transporting the cocaine to the purchase site for Armstrong to hand to the undercover officer, and that he knowingly participated in the crime. See Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009) ('[T]o find the defendant guilty as a joint venturer, [the jury] must find that the Commonwealth has proved both the elements of the offense and the defendant's knowing participation in the offense').
The defendant was charged with violating G. L. c. 94C, § 32A(d),which is the subsequent offence section of the law forbidding possession with intent to distribute and distribution of a class B substance, which states, 'Any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class B of section thirty-one shall be punished. . . .' G. L. c. 94C, § 32A(a).
The judge found the tapes to be relevant to the Commonwealth's joint venture theory as they demonstrated communications occurring two weeks before the arrest between the defendant, Armstrong, with whom the defendant was later arrested in the presence of drugs, and Thomas. Given the judge's well reasoned rationale for finding the conversations relevant to the joint venture, we cannot say that there was 'palpable error.'
The defendant's claim that evidence that someone named 'Joe' was part of the recorded calls was not relevant is without merit. The defendant, whose first name is Joseph, testified that he was part of the three-way conversation, and also testified that he was not referred to as 'Joey.' As stated, the terminology, the use of the defendant's first name, and the defendant's testimony that at least some of the conversation referred to drugs, endowed this evidence with 'a rational tendency to prove' that the defendant was involved in a scheme to sell drugs with Armstrong and Thomas. Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977)(defining relevance). In any event there was no unfair prejudice, given that the defendant testified that he was indeed one of the parties in the three-way phone call.
The defendant claims that Thomas' reference to 'Joe,' as only a first name, lacked the requisite specificity to be relevant to a joint venture. He also contends that because someone named 'Joey' was mentioned as bothering Armstrong, while the 'Joe' spoken of was supposed to help Armstrong, this evidence is fatally vague.
As to the defendant's contention that the conversation was admitted in violation of the Bruton doctrine , it is firmly settled law that in a case such as this, admission of statements of a joint venturer against the other participants does not violate a defendant's constitutional rights. See, e.g., Commonwealth v. Beckett, 373 Mass. 329, 337-341 (1977).
Bruton v. United States, 391 U.S. 123 (1968).
Opinion testimony. The defendant next complains that the prosecutor elicited improper opinion testimony from an investigating police officer that the 'Joe' and 'Joey' mentioned in the recorded calls were different people. We need not decide whether this was error because, again, the defendant suffered no prejudice as he himself testified that he was not referred to as Joey.
The prosecution argues that the defendant did not properly preserve his objection, however, from our review of the record we treat this as preserved error.
Exclusion of evidence. Finally, the defendant argues that it was error for the judge to refuse to admit letters between Thomas and Armstrong. The defendant's logic is that because his name was not mentioned in the letters, which discussed drug lingo, they tend to show that he was not part of a joint criminal venture. Given the minimal probative value of introducing a communication for the purpose of showing what it does not mention, we find no abuse of discretion on the part of the judge. See Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007) ('Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error'). Additionally, even had there been error, it would not have been prejudicial as there was ample evidence of the defendant's guilt, including the police discovering him sitting on the cocaine and his driving the car from which Armstrong emerged to sell the drugs.
Moreover, the defendant's factual assumption is flawed in that one letter, at least, does indeed refer to Thomas violating his parole conditions by meeting with someone named 'Joe.'
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Judgments affirmed.
By the Court (Cypher, Katzmann & Grainger, JJ.),