Opinion
14-P-81
06-17-2015
COMMONWEALTH v. OSCAR LOPEZ.
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, Oscar Lopez, appeals from a conviction by a jury for possession with intent to distribute a class A substance (heroin) in violation of G. L. c. 94C, § 32(a). He was also convicted by the judge in a separate proceeding of having been previously convicted of a drug-dealing offense, in violation of G. L. c. 94C, § 32(b), and being a habitual offender, in violation of G. L. c. 279, § 25. The defendant does not appeal from the sentence enhancing provisions.
The defendant was also convicted of committing the offense in a school zone, but the conviction was vacated in accordance with Commonwealth v. Bradley, 466 Mass. 551, 561 (2013).
The defendant argues that (1) his motion to dismiss the indictment should have been allowed because the integrity of the grand jury was impaired by false testimony; (2) his motion to suppress should have been allowed because the search warrant application and accompanying affidavit failed to establish probable cause that narcotics or other contraband would be discovered inside the apartment; and (3) the trial judge erred by allowing the Commonwealth's expert witness to offer an opinion, over the defendant's objection, about the ultimate issue of whether the defendant intended to distribute the heroin found in his apartment.
1. The indictment. The defendant filed a motion to dismiss the indictment, alleging that Detective David Lavoie had intentionally or recklessly misrepresented to the grand jury the amount of heroin found in the defendant's possession and that the testimony probably influenced the decision of the grand jury to indict. See Commonwealth v. O'Dell, 392 Mass. 445, 447 (1984). The defendant was required to establish that "(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986).
After a hearing, the motion to dismiss was denied. The motion judge found that the detective testified in good faith as to the combined weight of the drugs and packaging, rather than solely the drugs, and that his testimony did not affect the grand jury's decision to indict in light of the additional evidence that police walked in on the defendant while he was breaking up the drugs and packaging them for resale. The detective had testified that after he seized the baggies another officer weighed them and that the total weight of the seized bags was 9.3 grams. The detective also testified that he formed the opinion that the defendant and another were bagging the heroin for resale.
The defendant argues that questions by the grand jurors about the amount and value of the heroin support his argument that the detective's testimony affected their decision to indict the defendant. A grand juror asked the detective whether he had observed a scale and the detective indicated that he had not. The detective was asked if nine grams was a lot and what the street value was, and as found by the motion judge, the detective told the grand jury that nine grams "equates to a 'finger' of heroin, a common measure for low to mid-level dealers," and that it was worth approximately $600. When the crime laboratory analyzed the baggies, however, it determined that the total weight of the heroin was only 3.54 grams.
We accept the subsidiary findings of the motion judge absent clear error and conduct an independent review of the judge's ultimate findings and conclusions of law. The defendant has not established that the motion judge's findings are clearly erroneous. As the motion judge noted, "[i]naccurate testimony made in good faith does not require dismissal of an indictment." Commonwealth v. Silva, 455 Mass. at 509. The defendant's attempt to distinguish his case from Commonwealth v. Reddington, 395 Mass. 315, 320 (1985) (affirming denial of motion to dismiss where officer testified to grand jury that 100 grams of cocaine was seized but subsequent laboratory tests confirmed that only 7.62 grams of the substance was actually cocaine), is not persuasive. We agree with the motion judge that even if the weight provided to the grand jurors was incorrect, they could have found that the defendant intended to distribute the seized heroin because they were presented with photographs depicting twelve individually wrapped bags. See Commonwealth v. Burke, 44 Mass. App. Ct. 76, 79-80 (1997). Finally, there is no minimum quantity required to sustain a conviction of possession with intent to distribute. The amount of heroin affects only the weight, not the sufficiency, of the evidence on the charge of possession with intent to distribute. Commonwealth v. LaPerle, 19 Mass. App. Ct. 428-429 & n.2 (1985). The judge properly denied the motion to dismiss.
2. The motion to suppress. The defendant argues that his motion to suppress evidence seized pursuant to the search warrant was improperly denied because there was an insufficient nexus between the defendant's drug dealing and the target apartment. When reviewing the denial of a motion to suppress, we accept the judge's "findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480 (2007). The defendant bears the burden of showing that probable cause to issue the warrant did not exist. See Commonwealth v. McDermott, 448 Mass. 750, 767 (2007).
Review of the affidavit in support of the search warrant, taken as a whole and read in a commonsense manner, and considering reasonable inferences, satisfies us that the search warrant affidavit sufficiently demonstrated that it was likely that heroin and other distribution-related evidence would be found at the defendant's residence. At the hearing on the motion and in the defendant's appeal, the defendant has relied on several Appeals Court cases that the Commonwealth argues have been eclipsed by Commonwealth v. Escalera, 462 Mass. 636, 643-644 (2012). We conclude, for substantially the reasons set forth in the judge's decision, that the motion to suppress was properly denied and that this case falls within the parameters of Escalera. Moreover, review of additional case law from the Supreme Judicial Court clarifying the requirements regarding the demonstration of the nexus between the item sought and the location to be searched demonstrates that the nexus in this case was sufficient. See, e.g., Commonwealth v. Mendes, 463 Mass. 353, 366 (2012); Commonwealth v. Tapia, 463 Mass. 721, 722, 726 (2012); Commonwealth v. Clagon, 465 Mass. 1004, 1006-1007 (2013); Commonwealth v. Colondres, 471 Mass. 192, 201-202 (2015); Commonwealth v. Foster, 471 Mass. 236, 241-243 (2015).
The judge who heard the motion to suppress was also the trial judge.
3. Expert testimony. The defendant argues that testimony elicited from the Commonwealth's drug distribution expert in response to a hypothetical question amounted to improper opinion testimony on the ultimate issue of the defendant's guilt. Detective Hall, who was not otherwise involved in the case, testified about street-level drug dealing in general and answered a hypothetical question that the hypothetical evidence was "more consistent with" distribution than personal use of heroin. The hypothetical question paralleled facts in evidence, and the detective outlined the specific factors on which he based his opinion. The defendant objected. Such testimony is permissible even where it touches on the ultimate issue, so long as the "witness [does] not directly express his views on the defendant's guilt." Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998). See Commonwealth v. MacDonald, 459 Mass. 148, 162-163 (2011).
The admission of such evidence is committed to the discretion of the trial judge and will be reversed only where the admission constitutes an abuse of discretion or error of law. Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). Here, we cannot conclude that the judge made a "clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted).
The defendant argues that the prosecutor's closing argument compounded any potential error when the prosecutor stated, "Detective Hall, a thirteen-year narcotics veteran of the Everett Police Department, didn't find, or didn't believe that these drugs were consistent with personal use. He found that these drugs were consistent with the intent to distribute." While inartful in its phrasing, the prosecutor was merely arguing the admissible evidence. See Commonwealth v. Silva, 455 Mass. at 516.
Even if we were to conclude that the testimony came too close to the permissible boundary, we agree with the Commonwealth, for the reasons set forth in its brief at pages 35 through 37 and the authorities cited therein, that the defendant cannot establish prejudice in the circumstances of this case.
Judgment affirmed.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 17, 2015.