Opinion
13-P-1143
03-03-2015
COMMONWEALTH v. ALEXANDER GARCIA.
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
The defendant appeals from a conviction of trafficking in cocaine in an amount in excess of 200 grams, in violation of G. L. c. 94C, § 32E(b)(4), and violation of the drug free school zone statute, G. L. c. 94C, § 32J. He contends that the judge denied his motion for a required finding of not guilty in error as the evidence was insufficient of his "possession" of the cocaine in question. In addition, he complains that bad act evidence was erroneously admitted against him, and that the motion to suppress evidence as a result of the stop of a motor vehicle in which he rode as a passenger was improperly denied. We affirm.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence, including the testimony of a coventurer, amply established that the defendant was engaged in a joint criminal drug enterprise with Garcia-Cruz, Burgos, and Zabala that climaxed with the controlled delivery of a package mailed from Puerto Rico that contained a large quantity of cocaine. The cocaine was in the vehicle they were seen to have entered shortly after the delivery and hand-off from Zabala to Burgos. In addition, the Commonwealth's evidence detailed a series of similarly mailed packages received by Garcia and others with whom he had made arrangements over the preceding six months. See Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009) (joint venture liability requires evidence, if "more than one person may have participated in the commission of the crime," "that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense"). As the judge properly instructed, possession may be actual or constructive, exclusive or joint. "Under the joint venture theory, for a trafficking conviction, the defendant need not have possessed the drugs, actually or constructively. He need only have shared the intent of the principal to distribute." Commonwealth v. Hernandez, 439 Mass. 688, 695 (2003), citing Commonwealth v. Sabetti, 411 Mass. 770, 779-780 (1992), and Commonwealth v. James, 30 Mass. App. Ct. 490, 499 (1991).
Second, there was no error in the admission of testimony from Burgos of physical and emotional abuse by the defendant. At the very least, it was relevant to show the nature of their relationship and her state of mind in connection with her involvement in receiving the packages that she knew contained cocaine. Burgos' credibility was significant to the prosecution of the defendant as she gave damaging testimony probative of his knowledge and participation in this drug operation. The defense sought to attack her credibility by implying her participation in the defendant's scheme gave her a motive to lie in order to evade criminal prosecution through a proffer agreement.
The evidence of an abusive relationship was probative of Burgos being motivated by fear, rather than by other motives, such as mere self-enrichment, into becoming an unwilling accomplice to the defendant's crimes. See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394 (2006). As such, this evidence of the defendant's prior conduct toward her was relevant, because it showed her state of mind and explained her behavior. The evidence was not overly prejudicial, because the testimony was not detailed or inflammatory. Further the prosecution did not place undue emphasis on it; thus, it was therefore properly admitted by the judge. See Commonwealth v. Williams, 46 Mass. App. Ct. 700, 704 (1999) (discussing relevancy of evidence that victims feared defendant).
Last, the motion judge correctly denied the motion to suppress evidence resulting from the motor vehicle stop because there was probable cause for the police to believe that the package that was delivered to Burgos in a controlled delivery contained cocaine. "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Draper v. United States, 358 U.S. 307, 313 (1959), quoting from Brinegar v. United States, 338 U.S. 160, 175 (1949). "Probable cause exists where the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Cast, 407 Mass. 891, 895-896 (1990).
As succinctly and correctly stated by the judge: "The information known to police at the time of the stop of the vehicle, including the controlled deliveries of packages bearing indicia of drug trafficking to each of the occupants of the vehicle and [the canine's] alert to the package police observed Burgos carry into the vehicle, established probable cause to arrest [the occupants] and to search the vehicle for contraband." The motion was correctly denied.
Judgments affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 3, 2015.