Opinion
20-P-216
06-24-2021
COMMONWEALTH v. Andrew J. MEDEIROS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Andrew J. Medeiros, was convicted by a Superior Court jury of one count of distributing a class A substance, heroin, in violation of G. L. c. 94C, § 32 (a ). On appeal, the defendant challenges (1) the admission of coventurer statements, (2) the testimony of the Commonwealth's expert witness, and (3) the sufficiency of the evidence that he participated in a joint venture to distribute heroin. We affirm.
Background. The jury could have reasonably found the following facts. On June 5, 2017, State Police Sergeant David Patterson, who was participating in an undercover narcotics investigation, called a prospective seller and made arrangements to purchase forty dollars’ worth of heroin. Shortly after this conversation, Sergeant Patterson met with the seller, later identified as Ramon Matos. Matos entered Sergeant Patterson's undercover vehicle and directed Sergeant Patterson to an Olive Garden parking lot. During the five or six minute drive, Matos placed "[a]t least one" telephone call.
Shortly after pulling into the Olive Garden parking lot, a red Lexus arrived and parked alongside Sergeant Patterson's vehicle. The defendant was the driver of the Lexus and was the sole occupant. At Matos's request, Sergeant Patterson handed him forty dollars. Matos exited Sergeant Patterson's vehicle and entered the Lexus. Sergeant Patterson observed an "exchange" between the defendant and Matos, and when Matos reentered Sergeant Patterson's vehicle, he furnished a "plastic bag with a brown substance" that was later determined to be heroin.
The Commonwealth presented evidence of a second drug sale that occurred on June 9, 2017. Similar to the first sale, Sergeant Patterson made a telephone call stating his desire to purchase heroin and thereafter met with Matos. Matos directed Sergeant Patterson to a hockey rink parking lot adjacent to the Olive Garden. The defendant arrived at the hockey rink driving the same red Lexus. As the defendant pulled up to Sergeant Patterson's vehicle, Matos indicated that the defendant was his "supplier" and stated, "that's him." When Matos exited Sergeant Patterson's vehicle and entered the Lexus, the defendant and Matos drove off, returning approximately ten minutes later. Matos entered Sergeant Patterson's vehicle and provided him with a bag containing heroin.
On the basis of these two events, the defendant was charged with two counts of distributing heroin. See G. L. c. 94C, § 32 (a ). The defendant was convicted of the charge related to the June 5 incident, and he was acquitted of the charge related to the June 9 incident. This appeal followed. We set forth additional facts as necessary to our discussion.
Discussion. 1. Admission of out-of-court statements. The defendant first claims that the admission of Matos's statements "that's him" and that the defendant was his "supplier" through police officer testimony was prejudicial error because the statements were inadmissible hearsay. We disagree.
A statement made by the defendant's coventurer is not hearsay and may be admitted against the defendant if the Commonwealth shows, "by a preponderance of the evidence, that a joint venture existed between the declarant and the defendant, and that the statement was made in furtherance of the joint venture, while the joint venture was ongoing." Commonwealth v. Wardsworth, 482 Mass. 454, 460 (2019). See Mass. G. Evid. § 801 (d ) (2) (E) (2021). This showing must be made by evidence "other than the out-of-court statement itself." Commonwealth v. Rakes, 478 Mass. 22, 37 (2017). "We review the judge's decision to place a joint venturer's statement before the jury for abuse of discretion." Id.
Here, the evidence showed that leading up to the first sale, Sergeant Patterson called Matos and requested to purchase forty dollars’ worth of heroin. After the order was placed, Sergeant Patterson met with Matos for the purpose of obtaining the heroin and then drove at the direction of Matos to a location in a nearby town. As they were driving, Matos was observed making a telephone call. A short time after Sergeant Patterson and Matos arrived at the parking lot, the defendant arrived and parked next to Sergeant Patterson's vehicle. Sergeant Patterson then provided the money for the heroin to Matos and observed an "exchange" between the defendant and Matos. When Matos returned to the vehicle, he provided heroin to Sergeant Patterson. In the light most favorable to the Commonwealth, this evidence was sufficient to support the existence of a joint venture. See Commonwealth v. Wilkerson, 486 Mass. 159, 175 (2020) ("We view the evidence presented to support the existence of a joint venture in the light most favorable to the Commonwealth, recognizing also that the venture may be proved by circumstantial evidence" [citation omitted]). There was no abuse of discretion in finding that a joint venture existed between Matos and the defendant.
The challenged statements were also made in furtherance of the joint venture. "In essence, the inquiry to determine whether a statement was made during the pendency of a criminal enterprise and in furtherance of it ‘focuses not on whether the crime has been completed, but on whether a joint venture was continuing.’ " Commonwealth v. Winquist, 474 Mass. 517, 522-523 (2016), quoting Commonwealth v. Stewart, 454 Mass. 527, 537 (2009). As the evidence demonstrated, the Commonwealth sought to prove two heroin distribution charges by presenting evidence of two undercover transactions. Matos's statements preceded the second buy and were made for the ostensible purpose of identifying his supplier of heroin to the prospective buyer. Under these circumstances, we discern no abuse of discretion in admitting them. Nevertheless, even if we were to assume that Matos's statements were not made in furtherance of the joint venture and were therefore erroneously admitted, a new trial would not be warranted. Any error caused by their admission was not unduly prejudicial because they were made in the context of the alleged June 9 drug sale, resulting in a charge of distributing heroin for which the defendant was ultimately acquitted. Viewed in conjunction with the strong evidence against the defendant from the June 5 transaction, we are "sure that the error did not influence the jury, or had but very slight effect." Commonwealth v. Hrabak, 440 Mass. 650, 656 (2004), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
We are not persuaded by the defendant's argument that Matos's statements violated the confrontation clause. The Supreme Judicial Court has recognized that statements of coventurers are generally not considered testimonial because they are not made for use at trial. See Commonwealth v. Carriere, 470 Mass. 1, 8-9 (2014), citing Crawford v. Washington, 541 U.S. 36, 56 (2004).
Because the defendant objected to the admission of Matos's statements at trial, we review for prejudicial error. See Commonwealth v. DePina, 476 Mass. 614, 624 (2017).
2. Expert testimony. The defendant next claims that testimony by the Commonwealth's expert was improper because (1) the expert opined as to the defendant's guilt and (2) the testimony was irrelevant. We disagree.
The Commonwealth called State Police Sergeant Jason Conant as an expert to testify about street-level heroin distribution. On direct examination, the prosecutor posed the following hypothetical to Sergeant Conant:
"Assume that one day, in the early afternoon hours, a drug buyer makes a phone call to Person A and asks Person A for a forty of brown. As a result of that phone call, the buyer drives to another location, alone, picks up Person A. Inside the car, the buyer confirms the original request for a forty of brown, and Person A makes one or two phone calls to another individual. Person A does not provide what the buyer requested inside the car. Instead both the buyer and Person A, then drive for approximately 10 to 15 minutes to a parking lot, where they park. Soon after, another vehicle driven by Person B, parks next to them. At that point, the buyer gives money to A; A exits the buyer[’]s car, gets into B's car for a brief moment, during which, both A and B engage in a hand-to-hand transaction. A then exits B's car, returns to the buyer's car with his right hand closed, and A, shortly after, gives the buyer what the buyer requested."
Over the defendant's objection, Sergeant Conant opined that, based on his experience, the activity described in the hypothetical was "[one] hundred percent" consistent with "a drug deal." The defendant argues that this answer infringed on the jury's fact-finding role by impermissibly opining on his guilt. We review the admission of expert testimony for abuse of discretion. See Commonwealth v. Wilson, 441 Mass. 390, 401 (2004).
During oral argument before us, the defendant explained that his challenge focuses more on Sergeant Conant's answer, rather than the question posed by the prosecutor. In any event, we note that the hypothetical was supported by facts in evidence, as a hypothetical question must be. See Commonwealth v. Federico, 425 Mass. 844, 850 (1997).
"An expert's opinion that touches on the ultimate issues before the jury is generally admissible as long as the expert does not offer an opinion as to the defendant's guilt or innocence." Commonwealth v. Lugo, 63 Mass. App. Ct. 204, 208 (2005). Here, Sergeant Conant's opinion was proper because he did not directly comment on the defendant's guilt. Instead, he answered what the activities described in the properly posed hypothetical question would be "consistent with." See, e.g., Commonwealth v. Montmeny, 360 Mass. 526, 528 (1971). Therefore, the judge did not abuse her discretion in allowing Sergeant Conant's testimony. See Commonwealth v. Miranda, 441 Mass. 783, 793 (2004) (admission of expert testimony is largely left to discretion of trial judge). Compare Commonwealth v. Woods, 419 Mass. 366, 375 n.13 (1995) (no error would have occurred had testimony been limited to "consistent with" observations).
In addition, the defendant claims that much of the expert testimony beyond the hypothetical was irrelevant. The defendant did not object to Sergeant Conant's testimony on the basis of relevancy. On our review of the record as a whole, there was no substantial risk of a miscarriage of justice from the admission of such testimony. See Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 492 n.5 (1999) (examination of entire record required when reviewing under substantial risk of a miscarriage of justice standard).
3. Sufficiency of the evidence. Finally, the defendant claims that the evidence was insufficient to sustain his conviction under a joint venture theory. Specifically, the defendant asserts that the evidence did not support a finding that he engaged in a joint venture to distribute heroin to Sergeant Patterson. We disagree.
The defendant does not challenge the sufficiency of the evidence of his distribution to Matos as a principal. Therefore, we assume without deciding that the defendant correctly asserts that the Commonwealth was required to prove his intent with respect to each distribution, i.e. the one from himself to Matos (which he concedes) and the one from Matos to Sergeant Patterson, because the jury returned a general verdict. Cf. Commonwealth v. Barbosa, 477 Mass. 658, 665 (2017).
In reviewing the sufficiency of the evidence, we decide whether the evidence, viewed in the light most favorable to the Commonwealth, permitted a jury to find the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The Commonwealth proceeded against the defendant on a theory of joint venture, which required it to prove that "the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).
General Laws c. 94C, § 32 (a ), criminalizes, among other things, the "knowing[ ]" or "intentional[ ]" distribution of a class A substance.
Considering the evidence in this light, the jury could have reasonably inferred that after Sergeant Patterson picked up Matos, Matos placed a telephone call to the defendant to arrange the sale of heroin. A short time after Matos and Sergeant Patterson arrived at the Olive Garden parking lot, the defendant arrived, parking next to them. From this, the jury could have reasonably inferred that the defendant knew Matos was going to deliver heroin to Sergeant Patterson because in addition to parking right next to Sergeant Patterson's vehicle, he could observe Matos exit the passenger's seat. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) (inferences "need only be reasonable and possible and need not be necessary or inescapable" [citation omitted]). In addition, Sergeant Conant explained to the jury, which they were entitled to credit, that a "middleman" like Matos often puts "a drug user or drug customer in touch with a drug source" and that working through a middleman "limits the drug dealer's exposure" to criminal liability. Consequently, this evidence was sufficient to show that the defendant shared Matos's intent to distribute heroin to Sergeant Patterson.
Judgment affirmed.