Opinion
10-P-1854
10-25-2011
COMMONWEALTH v. NNAMDI ONUJIOGU.
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
After a jury-waived trial in the Superior Court, the defendant was convicted of trafficking in one hundred grams or more of heroin. G. L. c. 94C, § 32E(c) (3). On appeal, he argues that the evidence was insufficient to convict him, and that his trial counsel was ineffective for failing to file certain pretrial motions and for failing to object to certain evidence. In addition, he contends that, because it was impossible to determine under which theory of joint venture the finding was based, his conviction must be reversed. We affirm.
Background. The following background facts, which we view, on the challenge to the sufficiency of the evidence, in the light most favorable to the Commonwealth, are taken from the trial evidence. Federal customs agents contacted the Norfolk County drug task force about a suspicious package having been shipped from India via DHL delivery service and addressed to one Mr. Jesmond at a North Harriette Street address in Randolph; the building at the address is a State-funded rooming house for the disabled. Customs officials opened the package and found inside a cookbook that concealed what later was determined to be 118.82 grams of heroin. A telephone number was listed in the packing slip contact information.
Customs officials earlier had intercepted a package deemed suspicious that had a return address in Brazil and was addressed to one Rosy Booth at the same North Harriette Street address in Randolph. Customs agents opened the package after a drug-detecting dog alerted to it. Inside the package, police found a children's book that had been hollowed out, and its contents replaced with approximately 250 grams of cocaine.
On May 2, 2008, a task force officer, Massachusetts State trooper Michael Close went to the North Harriette Street address to deliver the package. Other task force officers set up observation and were prepared to arrest the person who accepted the package of heroin, but the man who opened the door refused to accept the package. Shortly thereafter, a brown Nissan Sentra vehicle arrived at the house and parked in the driveway. The defendant (the operator) and his codefendant, Imoh Umoh, exited the vehicle and entered the house. Close then made a successful delivery of the package to Umoh and tipped his hat to signal other task force officers that the package had been delivered; several officers got out of the undercover truck and arrested Umoh. Two troopers, Sean Newman and Timothy Curtin went inside the North Harriette Street address and arrested the defendant, who had on his person three cellular telephones and $2,147 in cash. Trooper Newman dialed the telephone number on the packing slip from his own cellular telephone and a telephone in the defendant's possession rang.
At trial, the defendant testified and denied having any knowledge of the contents of the package, claiming that he simply agreed to pick up and deliver the package at the request of an ailing friend, Ike, who worked at the Harriette Street address, in exchange for a payment of $200.
Discussion. 1. Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, considering all the circumstances and making appropriate inferences, we 'determine whether 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, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Merola, 405 Mass. 529, 533 (1989) (inferences 'need only be reasonable and possible . . . not . . . necessary or inescapable'), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). 'Circumstantial evidence is competent evidence to establish guilt.' Commonwealth v. Rojas, 388 Mass. 626, 629 (1983). The Commonwealth met its burden.
To prove that the defendant was guilty of trafficking in heroin, the Commonwealth was required to prove beyond a reasonable doubt that the defendant possessed a certain substance; that the substance was a controlled substance, namely heroin; that the defendant possessed that controlled substance knowingly or intentionally; that the defendant had the specific intent to distribute the controlled substance; and that the amount was one hundred grams or more. G. L. c. 94C, § 32E(c). Here, the Commonwealth met its burden of proof by presenting evidence that included task force officers' observations of the defendant, his arrival to pick up the package, and his possession of a large quantity of money and the cellular telephone police telephoned using the packing slip information.
2. Ineffective assistance. The defendant argues that defense counsel was ineffective for not moving to dismiss the indictment on grounds of insufficiency of evidence to find probable cause, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982); for failing to object to, and for introducing, evidence of alleged prior bad acts of the defendant; and for failing to challenge the defendant's arrest and the subsequent search of his telephones.
Our review of the record before us leads us to conclude that the defendant did not establish that 'better work might have accomplished something material for the defense.' Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Here, as there was probable cause to arrest, and sufficient evidence presented to the grand jury to support the indictment, any motion to dismiss the indictment or challenge the defendant's arrest would have been futile.
Finally, the defendant argues that trial counsel was ineffective for failing to object to the defendant's statement, admitted at trial, that he previously had accepted packages from his friend in India and for eliciting additional evidence regarding those packages. We disagree. The statements made by the defendant to the police were not prior bad act evidence, but rather, if credited, provided an innocent explanation for the defendant's appearance at the North Harriette Street address, namely, to perform an errand for a friend. Moreover, the statements, made after the defendant was told his Miranda rights, were admissible as admissions.
Consequently, the defendant's claims of ineffective assistance fail.
3. General finding. Where, as here, the evidence is sufficient to sustain liability under both theories of joint venture liability, there is no merit to the defendant's contention that it was error for the judge to render a general finding on the charge. See, e.g., Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 641-642 (2003).
Judgment affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),