Opinion
16-P-270
05-11-2017
COMMONWEALTH v. Jean Stephane JOSEPH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant was convicted of possession of cocaine with the intent to distribute, in violation of G. L. c. 94C, § 32A(c ). On appeal, he claims there was insufficient evidence that the substance was cocaine, and that there were errors in the chain of custody for the drug evidence, error in the admission of the cocaine and drug certificate in evidence, and error in allowing the trooper to open the heat-sealed bag that contained the drug evidence to read the note written on one bag. We affirm.
He was acquitted of a school zone violation, and a charge of distribution of cocaine, subsequent offense, was dismissed.
1. Sufficiency of the evidence. The defendant claims there was insufficient evidence that the substance in question was crack cocaine due to conflicting testimony and defects in the chain of custody. We disagree. At trial, the chemist explained that three of the four substances in the bags presented contained cocaine, and that one of the bags contained ibuprofen only. The defendant claims there was a lack of sufficient evidence that he sold a bag of crack cocaine to the undercover trooper and that, instead, it could have been the bag containing the ibuprofen. When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Rather, the relevant question "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, supra. See Commonwealth v. Bell, 83 Mass. App. Ct. 82, 83-84 (2013).
Trooper Walls testified that upon receiving the drugs handed to Trooper Patterson from the defendant, he kept them in a separate bag from the drugs found on the defendant's person once he was arrested. The chemist also explained that even though all of the drugs were now contained in the large, heat-sealed bag, she too kept the drugs sold to Trooper Patterson in a separate bag during testing. Moreover, Trooper Patterson identified item 2 as the crack cocaine the defendant sold him, and distinguished it from the powder cocaine in the other bags. The drug certificate, entered in evidence, identified item 2 as "[w]hite ‘rock’ powder." A reasonable fact finder could conclude that item 2, identified by Trooper Patterson and through the testimony of Trooper Patterson and two other witnesses, was the crack cocaine sold to Trooper Patterson by the defendant.
Also contrary to the defendant's assertion, there was no conflicting testimony indicating that item 2 was ibuprofen instead of crack cocaine. Item 1.2 was identified throughout the trial as the ibuprofen. Item 2 was consistently identified as the crack cocaine, and identified by Trooper Patterson himself as the item that he purchased from the defendant. These items were in separate bags within the heat-sealed bag. Thus, the defendant's claim fails.
The defendant's issue with the chain of custody and the handwriting on the bags is also without merit. Trooper Patterson identified item 2 as the crack cocaine he purchased from the defendant. Although there was no field testing, and the evidence had been broken down for testing, he was still able to identify it. The chemist identified item 2 as a white rock-like powder containing cocaine, and Trooper Walls explained his routine practice of keeping the drugs purchased from the defendant in a separate bag from those confiscated later, and that he followed that practice in this case. Although there appeared to be some confusion as to the handwriting on the bags, the drugs were properly identified. In any event, to the extent there was any conflicting testimony, we must conclude the fact finder resolved them in favor of the Commonwealth. See Commonwealth v. Merry, 453 Mass. 653, 661 (2009). The motion for a required finding of not guilty was properly denied.
2. Admission of drug evidence. The defendant also asserts that the judge erred in admitting the drug evidence, as well as the drug certificate, as he claims the chain of custody was never established and the evidence was never properly identified. We disagree.
The testimony of the troopers and the chemist at trial led the fact finder through the timeline of collecting the drugs from Trooper Patterson and the defendant, packaging of the drugs and delivering them to the crime lab by Trooper Willis, witnessing the packaging of the drugs by Sergeant McCarthy, the chemist's testing the individual bags, the chemist's identification of each bag by its identification number, her explanation of item 2 being kept in a separate bag from all other items, and finally, her repackaging the individual bags into the larger bag for presentation, and her testimony that the bag was in substantially the same condition as the last time she saw it, which was identified by "[her] initials as well as the date of [her] analysis ... still intact on the seal." In addition, the drug certificate entered in evidence corroborated the chemist's testimony.
The defendant's issue with the chemist's supposed inconsistency regarding observing or making the markings on the individual bags fails as well, as her testimony was that she did not observe the markings, not that there were no markings.
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The chain of custody was presented through these three witnesses, and was sufficient to establish reliability of the drug evidence for admission at trial. Even if there was an issue with the chain of custody, "[a]lleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992).
3. Opening the evidence bag. Finally, the defendant claims that the judge erred in allowing Trooper Walls to open the heat-sealed drug evidence bag to read off the note written on one of the bags, which identified that bag as containing the drugs sold to Trooper Patterson, because the defendant had no notice of any markings, and the evidence constituted hearsay. We disagree.
The defendant does not contend that he was not given notice of the drug evidence to be presented at trial, but rather that he was not given notice as to the markings on the bags. Under Mass.R.Crim.P. 14(a)(1)(A), as appearing in 442 Mass. 1518 (2004), the prosecution is to permit the defense to inspect the evidence prior to trial. There is nothing in the record to suggest that the defendant was deprived of this opportunity at the police station before trial. The written notations on the bags were part of the drug evidence, and the defendant's failure to inspect the drug evidence is neither a violation of rule 14, nor an error by the judge, who admitted the drugs in evidence.
As for the hearsay argument, the note read by Trooper Walls was not read for identification purposes, rather, as the judge found, "Walls's statement here yesterday as well as the writing on the bag I do not treat as being offered for the truth that it is in fact the bag but rather to explain Walls's state of mind as to why that's the bag he had tested." The statement was not hearsay as it was not offered for the truth of the matter asserted; rather, the note was proof of why the trooper believed item 2 to be the substance he purchased from the defendant. "We must assume that the judge did not give inappropriate weight to the witness's statement, because judges in jury-waived trials are presumed to know and correctly apply the law." See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005). Accordingly, there was no error.
Judgment affirmed.