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Commonwealth v. Oquendo

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Sep 1, 2016
90 Mass. App. Ct. 1104 (Mass. App. Ct. 2016)

Opinion

No. 14–P–1915.

09-01-2016

COMMONWEALTH v. Inaldo OQUENDO.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury-waived trial in District Court, the defendant, Inaldo Oquendo, was convicted of possession with intent to distribute a class B substance, crack cocaine, in violation of G.L. c. 94C, § 32A(a). On appeal, the defendant contends that (1) the denial of his motion to suppress was improper because the affidavit in support of the search warrant application was inadequate; (2) the trial judge abused his discretion by allowing a chemist from the State police crime laboratory to testify as an expert witness; and (3) the trial judge's consideration of statements the defendant made to police was improper because they were involuntary. We affirm.

The defendant was also charged with a controlled substance violation within a school zone, G.L. c. 94C, § 32J, and conspiracy to violate a controlled substance law, G.L. c. 94C, § 40. He was acquitted of the school zone violation, and a nolle prosequi was entered on the conspiracy charge.

Discussion. 1. The search warrant application. The defendant contends that the motion judge should have granted his motion to suppress evidence seized by police because the search warrant was not supported by probable cause. The defendant challenges the affidavit on two grounds: (1) it was insufficient under either prong of the Aguilar–Spinelli standard, and (2) it failed to establish a nexus between the alleged criminal activity and the house located at 45 Pomeworth Street (45 Pomeworth).

See Aguilar v. Texas, 378 U.S. 108 (1964) ; Spinelli v. United States, 393 U.S. 410 (1969).

“In reviewing a ruling on a motion to suppress, we accept the judge's findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Montoya, 464 Mass. 566, 576 (2013), citing Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Our review of the sufficiency of the affidavit in support of the search warrant application “is restricted to an examination of the information within the four corners of the affidavit ... and the reasonable inferences to be drawn therefrom.” Commonwealth v. Foster, 471 Mass. 236, 241 (2015). However, “search warrant affidavits are to be interpreted in a realistic and commonsense manner, and should be read as a whole, not parsed, severed, and subjected to hypercritical analysis.” Commonwealth v. Anthony, 451 Mass. 59, 69 (2008) (citation and quotation omitted).

Detective Paul Norton, the affiant, is a narcotics detective with the Stoneham police department. The affidavit in support of the search warrant describes the following. In April, 2013, Norton and Detective Angelo Piazza met with the confidential informant (CI) concerning crack cocaine distribution in Stoneham. Piazza had known the CI for several years and knew her (a pronoun used for convenience, not to signify gender) full name, date of birth, place of residence, and criminal history. However, there was no indication that the CI had previously provided reliable information to the police leading to arrests or criminal convictions.

The CI reported that Taja Angi and “Ramon O'Quendo” were selling crack cocaine from their shared residence located at 45 Pomeworth. After observing 45 Pomeworth, officers confirmed that Angi and “Ramon” were living there. The house at 45 Pomeworth was described as a two-story, single-family residence.

The affidavit identifies “Ramon O'Quendo” as another occupant of 45 Pomeworth involved in selling crack cocaine. This is not an issue on appeal as the defendant was at the property when it was searched pursuant to the search warrant.

According to the CI, Angi and “Ramon” always maintained a “stash” of crack cocaine at 45 Pomeworth and sold one-half an ounce to an ounce every two days. The CI provided Norton with a specific telephone number that she said could be used to contact Angi to purchase crack cocaine. The CI believed that Angi and “Ramon” shared the telephone number because either person would answer when it was called. The CI and her associates used that same telephone number to set up a purchase of crack cocaine from Angi within three months of when the affidavit was prepared. The CI was present for the sale.

The affidavit also details a series of three controlled drug purchases between the CI and Angi at 45 Pomeworth. The first controlled purchase took place during the week of April 8, 2013. Prior to executing the controlled buy, Piazza searched the CI to ensure that she was not in possession of illegal drugs or money. Then, under Piazza's direction and observation, the CI called Angi's telephone number, spoke with her and placed an order for crack cocaine. Angi instructed the CI to meet her at her residence, 45 Pomeworth, to make the purchase. Detectives provided the CI an unspecified amount of money to purchase the crack cocaine and followed her directly to 45 Pomeworth.

Norton had been surveilling 45 Pomeworth prior to the CI's arrival. Norton observed the CI arrive at 45 Pomeworth, meet with Angi, and then depart within one minute of her arrival. Norton followed the CI directly to a predetermined meeting location. Once there, the CI provided the officers with crack cocaine she said she had just purchased from Angi.

The officers facilitated two additional controlled buys between the CI and Angi. The second occurred during the week of April 14, 2013. The third occurred within seventy-two hours of the preparation of the affidavit, which was submitted in support of the search warrant application on April 27, 2013. The second and third controlled buys were identical to the first in all pertinent respects. Each purchase involved the CI calling Angi, ordering crack cocaine, Angi telling the CI to meet her at 45 Pomeworth, the CI meeting Angi there a short time later and purchasing an amount of crack cocaine. The police maintained continuous surveillance throughout the controlled purchases. In addition to the controlled buys, the Stoneham police conducted surveillance of 45 Pomeworth, which established Angi and “Ramon's” presence at the home and evinced activity consistent with drug distribution.

There was some variation in the affidavit's descriptions of the meetings between the CI and Angi during the three buys. As to the first buy, Norton and Detective Delaney “observed [the CI] pull up to 45 Pomeworth” and Delaney “then reported [the CI] meeting with Angi, and then leaving 45 Pomeworth [ ] within one minute of arriving.” During the second buy, Detective Grace “observed [ ] Angi walk from the house [at 45 Pomeworth] where she met with [the CI],” and Delaney reported observing the CI leave the address within one minute of her arrival. As to the third buy, the affidavit states that “[the CI] arrive[d] at 45 Pomeworth [and] Detective O'Hearn then reported [the CI] leaving 45 Pomeworth [ ] within one minute of arriving.” These observations are consistent with Norton's statements in the affidavit that narcotics transactions are “typified by visits of short duration” and can involve “a dealer coming from a residence.”

This surveillance included the following observations. On April 10, 2013, police observed an individual, who was known to them as a narcotics user, enter 45 Pomeworth and leave approximately five minutes later. The duration of the visit was consistent with a drug transaction. On April 17, 2013, officers observed a gray Chevy Trailblazer arrive at 45 Pomeworth. Angi and “Ramon” left the home and got into the car. The officers followed the vehicle to an apartment in Chelsea, where Angi and “Ramon” stayed for approximately forty-five minutes before returning directly to 45 Pomeworth. The CI informed Piazza that Angi and “Ramon” travel to Chelsea to pick up crack cocaine. Finally, on April 21, 2013, the person seen entering 45 Pomeworth on April 10, 2013, filed a report with the Stoneham police alleging that Angi, who lives at 45 Pomeworth, had threatened her over a drug debt owed to Angi. That individual also reported having received crack cocaine from Angi's boy friend (inferentially, the defendant).

a. The confidential informant. Where an affidavit in support of the search warrant relies on information provided by a confidential informant, that affidavit must satisfy the Aguilar–Spinelli standard.

“Under the Aguilar–Spinelli standard, if an affidavit is based on information from an unknown informant, the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the contraband was where [s]he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was ‘credible’ or his information ‘reliable’ (the veracity test).”

Commonwealth v. Forbes, 85 Mass.App.Ct. 168, 173 (2014), quoting from Commonwealth v. Upton, 394 Mass. 363, 374–375 (1985).

The defendant contends that the affidavit failed to satisfy either prong of the Aguilar–Spinelli standard. Even if we were to assume that there were deficiencies in either the CI's basis of knowledge or veracity, “[a]n informant's detailed tip, plus independent police corroboration of those details, ... can compensate for deficiencies in either or both prongs of the Aguilar–Spinelli standard, and thus satisfy the ... probable cause requirement” of art. 14 of the Massachusetts Declaration of Rights. Commonwealth v. Tapia, 463 Mass. 721, 730 (2012) (quotation omitted). See Commonwealth v. Baldasaro, 62 Mass.App.Ct. 925, 926 (2004). Moreover, “[a] controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant.” Commonwealth v. Warren, 418 Mass. 86, 89 (1994). Here, the three controlled purchases detailed in the affidavit, in conjunction with additional police surveillance, compensated for any alleged shortcoming under the Aguilar -Spinelli standard. Accordingly, the judge did not err in denying the defendant's motion to suppress on the basis of the Aguilar–Spinelli standard.

The defendant claims that all of the CI's information that was described as occurring within three months of when the affidavit was prepared was stale. We disagree. “When information indicates such protracted or continuous activity, the older information remains relevant, even though that information viewed in isolation may have been too old to provide a substantial basis to conclude that the items in question were still likely to be found on the premises to be searched.” Commonwealth v. Matias, 440 Mass. 787, 793 (2004), citing Commonwealth v. Cruz, 430 Mass. 838, 843 (2000). Here, any older information was supplemented by the three controlled buys and other observations.

The judge concluded that “[w]hile there existed deficiencies in the veracity prong due to a lack of any detailed track record with the CI, any deficiencies were overcome by independent police corroboration via three separate controlled buys and police investigation.” For the reasons discussed infra, we agree with the judge's independent corroboration analysis.

b. Nexus. “[A]n affidavit offered in support of a search warrant must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Escalera, 462 Mass. 636, 642 (2012) (quotation omitted). In determining whether there is probable cause a magistrate may draw “normal inferences as to where a criminal would be likely to hide the drugs [she] sells.” Commonwealth v. O'Day, 440 Mass. 296, 302 (2003) (quotation omitted). The defendant essentially contends that because the affidavit does not state that the CI purchased the crack cocaine inside 45 Pomeworth, the nexus requirement was not met. While the better practice would be for the affidavit to state whether a controlled buy occurred inside or outside a location, we conclude the nexus requirement was met here.

It is well established that “[o]bservations by police of a suspect on multiple occasions leaving [her] residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in [her] residence.” Escalera, 462 Mass. at 643.

Here, the affidavit details three controlled buys at 45 Pomeworth that were identical in all pertinent respects. As previously discussed, the CI called Angi and ordered an amount of crack cocaine. Angi directed the CI to meet her at a prearranged location, 45 Pomeworth. The CI traveled to 45 Pomeworth, briefly met with Angi and purchased crack cocaine from her. Significantly, during the second buy, Angi was observed “walk[ing] from the house where she met with [the CI]” and sold her crack cocaine. This observation, in conjunction with the two other controlled buys, the CI's account of drug distribution at 45 Pomeworth, and independent surveillance of 45 Pomeworth, provided a more than sufficient basis for the magistrate to make the reasonable inference that Angi stored and distributed crack cocaine at her residence at 45 Pomeworth. See Commonwealth v. Luthy, 69 Mass.App.Ct. 102, 106–107 (2007) (based on visual surveillance of the defendant leaving his residence after arranging a drug sale by telephone, it was reasonable to infer that the defendant was distributing illegal drugs from his address). Accordingly, we discern no error in the denial of the defendant's motion to suppress.

2. Expert testimony. The defendant claims that the trial judge abused his discretion in allowing a forensic chemist (chemist) from the State police crime laboratory (drug lab) to testify as an expert witness. At the time the testifying chemist tested the substance in question, she was still undergoing training. She testified that an internal drug lab policy prevents all chemists in training from testifying at trial concerning conclusions generated from their tests. Although the chemist tested the substance at issue in this case while she was in training, she had completed training well before the trial. The defendant now claims that although the drug lab permitted the chemist to test the substance in question, the internal drug lab policy preventing chemists in training from testifying rendered her incompetent to testify as an expert on any sample she analyzed while in training.

The chemist ultimately testified that her testing of samples of the substance recovered from 45 Pomeworth confirmed its identity as cocaine with an adulterant, levamisole.

This policy also precluded her from issuing certificates of analysis. Accordingly, her supervisor, Timothy Woods, signed the certificate of analysis.

“A trial judge has wide discretion to qualify an expert witness and to decide whether the witness's testimony should be admitted.” Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). See Mass. G. Evid. § 702 (2016). “The crucial issue, in determining whether a witness is qualified to give an expert opinion, is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony.” Commonwealth v. Richardson, 423 Mass. 180, 183 (1996) (quotation omitted).

The drug lab's internal policy prohibiting chemists in training from testifying at trial is not a statutorily mandated rule. Contrast LeSage, petitioner, 76 Mass.App.Ct. 566, 571–572 (2010) (in a sexually dangerous person proceeding, an expert witness must meet the statutory definition of being a “qualified examiner” before providing an opinion). Moreover, when the trial judge asked the chemist if she was permitted to testify about tests she completed during her training, the chemist replied that she was able to “look at the data and generate conclusions based on the data.” Accordingly, we discern no abuse of discretion in the judge's decision to permit the chemist to testify about her conclusions based on the data.

3. Defendant's statements to police. On May 3, 2013, the Stoneham police, in conjunction with the Southern Middlesex regional drug task force, executed the search warrant at 45 Pomeworth. During the search the defendant and Angi were found in the basement. Officers also discovered a locked safe. After the defendant was read his Miranda rights, he agreed to talk with Norton. The defendant stated that he lived in the basement of 45 Pomeworth with Angi, his girl friend. The defendant admitted that he owned the safe. Further, he provided the safe's combination. Officers used that combination to open the safe, where they found sixty-eight bags of crack cocaine and other contraband. The defendant now contends that his statements were involuntary and that the judge erred in considering them.

The defendant does not challenge the correctness of the rights warnings that were given.

“It is well established that a confession or an admission is admissible in evidence only if it is made voluntarily.” Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). “The test for voluntariness of a defendant's statement is whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.” Commonwealth v. McCowen, 458 Mass. 461, 471 (2010) (quotation omitted).

Where, as here, the defendant claims that his statements were involuntary because they were products of improper promises of leniency, “the touchstone is whether the police ‘assured’ the defendant that [his] confession would aid [his] defense or result in a lesser sentence.” Commonwealth v. Tolan, 453 Mass. 634, 642–643 (2009), quoting from Commonwealth v. Jordan, 439 Mass. 47, 53 (2003). We presume, absent a contrary indication, that the trial judge sitting without a jury “correctly instructed himself as to the manner in which evidence is to be considered in his role as factfinder.” Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002).

Prior to trial, the judge acknowledged that the voluntariness of the defendant's statements was a live issue at trial. On direct examination, Norton was asked whether he made any threats or promises to the defendant while questioning him. Norton responded that he did not. The defendant's claim that his statements were involuntary is derived exclusively from the following exchange during cross-examination of Norton. Defense counsel asked Norton whether he had indicated to the defendant that “if he cooperated and provided some help to [Norton], there could be something done for [the defendant], being present there?” Norton responded, “[w]ell, typically, yes, we always try to get the person to go up the food chain of the ladder of the drug world, yes.” Later in cross-examination Norton was asked, “you indicated to [the defendant] that if he cooperated, things would turn out okay for him, correct?” Norton responded, “I didn't say that.” Counsel pressed: “Did you in fact indicate to him that things would turn out better if he cooperated and provided information[?]” Norton answered, “I didn't make any promises. We typically say we can work with you and help you out if you cooperate—cooperate to a different level, not this level.”

The defendant rested without testifying or calling an eyewitness to the alleged promise of leniency.

Based on this testimony, we detect no impermissible offers of leniency or inducements. Norton initially testified that he did not make any promises or threats to the defendant. He subsequently clarified his statement on cross-examination and reaffirmed that he did not make any promises to the defendant. See Commonwealth v. Meehan, 377 Mass. 552, 564–565 (1979) ; Commonwealth v. Ortiz, 435 Mass. 569, 577 (2002). Accordingly, the trial judge did not err in considering these statements.

Given our conclusion that the statements were indeed voluntary and the trial judge's acknowledgement that voluntariness was a live issue at trial, we need not address the defendant's claim of ineffective assistance of counsel for failing to object to the admission of the statements.

Judgment affirmed.


Summaries of

Commonwealth v. Oquendo

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Sep 1, 2016
90 Mass. App. Ct. 1104 (Mass. App. Ct. 2016)
Case details for

Commonwealth v. Oquendo

Case Details

Full title:COMMONWEALTH v. INALDO OQUENDO.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Sep 1, 2016

Citations

90 Mass. App. Ct. 1104 (Mass. App. Ct. 2016)
57 N.E.3d 1065