Opinion
No. 15–P–1513.
07-20-2016
COMMONWEALTH v. Ernesto ORTIZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ernesto Ortiz, appeals from his convictions of possession of cocaine with intent to distribute, in violation of G.L. c. 94C, § 32A(c), second or subsequent offense, G.L. c. 94C, § 32A(d), within one hundred feet of a public park or playground, G.L. c. 94C, § 32J. He argues that his motion to suppress the results of a search of his person was erroneously denied, that the Commonwealth's substitute chemist improperly testified as to the composition of the substances found during the search, and that the evidence was insufficient to prove that he had committed the prior offense. We affirm.
A conviction of possession of heroin, G.L. c. 94C, § 34, was placed on file with the defendant's consent.
Motion to suppress. We detect no error in the motion judge's denial of the defendant's motion to suppress. The defendant does not dispute the confidential (but not anonymous) informant's reliability, but argues that the Commonwealth failed to establish his basis of knowledge. The motion judge found that the informant provided a description of the defendant (“a large Hispanic male with curly hair”), his nickname (“BamBam”), and his address and living arrangements (“with two alleged heroin addicts at an apartment at 361 Hildreth Street in Lowell,” the defendant “supplying drugs to the person leasing the apartment ... in lieu of rent”). Detective Thomas Lafferty had independent knowledge that confirmed the defendant's nickname, and the informant confirmed the defendant's identity from a photograph that Lafferty showed him. The informant told the police that the defendant sold drugs from the park adjacent to the apartment.
At 8:30 P.M., on September 6, 2010, the informant told Lafferty that the defendant would be meeting a buyer in the park within ten minutes, and that he “may hide drugs in his groin or buttocks area if he encounters the police.” The police immediately took up surveillance positions, and the defendant appeared as predicted. Although no buyer was in sight, the police decided to stop the defendant. When they appeared, displaying their badges, the defendant “put his right hand toward his rear.”
Because the Commonwealth did not present any evidence explaining how the informant gained his knowledge of the defendant, “it is especially important that the tip describe the accused's criminal activity in sufficient detail ... [to demonstrate] that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.” Commonwealth v. Robinson, 403 Mass. 163, 165 (1988), quoting from Spinelli v. United States, 393 U.S. 410, 416 (1969). Here, the informant's information, such as the defendant's peculiar rental agreement, went beyond “obvious details.” Commonwealth v. Bakoian, 412 Mass. 295, 300 (1992), quoting from Commonwealth v. Lyons, 409 Mass. 16, 21 (1990). Moreover, police corroboration of the details of the tip and of the informant's prediction of the defendant's behavior adequately compensated for “[a]ny deficiency in ascertaining the informant's basis of knowledge.” Commonwealth v. Welch, 420 Mass. 646, 652 (1995). See Commonwealth v. Wilson, 441 Mass. 390, 395 (2004) (“A deficiency in either prong [reliability or basis of knowledge] may be remedied by independent police corroboration”). The information that the informant provided, corroborated by police observation, gave the police at least reasonable suspicion to stop the defendant on suspicion of drug distribution. See Lyons, supra at 19.
When the police approached the defendant, “he reacted as had been foretold by the [informant] by facing the detectives and reaching behind in the area of his waistband.” In addition, one of the officers present, Detective Daniel Desmarais, “was familiar with the defendant from previous dealings with him and was aware that prior history involved firearms.” When Desmarais went to pat frisk the defendant for weapons, he and Lafferty saw the corner of a plastic bag sticking out of the defendant's waistband. Demarais testified that the bag was visible before he patted down the defendant ; Lafferty testified that Desmarais lifted the defendant's shirt during the patfrisk, revealing the plastic bag. The motion judge did not make a finding one way or the other, stating, “That discrepancy is not critical to my assessment of the legality of the search.”
“At that point, I went to do an exterior patfrisk of [the] area of his waistband where he was reaching. Before I could even do that as I looked down, I saw the end of a clear plastic baggie sticking out of the top of his waistband probably like two or three inches.”.
“Desmarais went to the back where Bam–Bam had put his right hand, lifted up his shirt and you could see a plastic bag sticking out.”.
The defendant concedes that a patfrisk for weapons was warranted, and the Commonwealth, for its part, does not argue that the removal of the plastic bag was justified as part of the patfrisk for weapons. The judge determined that once the defendant reached toward his waistband, even before the officers saw the bag, they had probable cause to believe that the defendant was concealing drugs, which justified the search.
We agree. A search justified by probable cause and exigent circumstances is permissible if “limited in scope to those areas of the person and his clothing which could reasonably be thought to contain the items sought.” Commonwealth v. Skea, 18 Mass.App.Ct. 685, 701 (1984). See Commonwealth v. Washington, 449 Mass. 476, 480–481 (2007). The combination of the informant's tip, the corroboration of that information, and the defendant's conduct when the police stopped him provided probable cause and exigent circumstances sufficient to justify Desmarais's search. We discern no error in the judge's additional finding that the scope of the search was appropriate and did not amount to a strip search. Contrast Commonwealth v. Morales, 462 Mass. 334, 339–341 (2012) .
Because we conclude that the police had probable cause to search for drugs, we need not address the defendant's argument that the search impermissibly exceeded the scope of a patfrisk for weapons. We note that if the judge had found that Desmarais observed the bag “in plain view during the course of his lawful patting down” of the defendant's waistband for a weapon, the defendant would not be entitled to suppression. Commonwealth v. Ferguson, 410 Mass. 611, 614 (1991).
Substitute chemist's testimony. The defendant contends on appeal, as he did at trial, that because Massachusetts State police crime lab chemist Dina DiFranco, who tested the cocaine and heroin admitted in evidence, did not testify at trial, and a supervisor of the lab's drug identification unit, Nancy Brooks, testified in DiFranco's stead, his confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights were violated. The defendant cites Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), for this proposition. However, it is now settled that independent expert opinion testimony, if properly offered under the Massachusetts common law rules of evidence, does not violate the confrontation clause as expounded in Melendez–Diaz, Bullcoming, and Williams v. Illinois, 132 S.Ct. 2221 (2012), which followed on the heels of Bullcoming. See Commonwealth v. Greineder, 464 Mass. 580, cert. denied, 134 S.Ct. 166 (2013). Greineder disposes of the defendant's confrontation claim.
In his brief, the defendant makes what appears to be an additional, separate argument that Brooks did not testify as to her own independent opinion, but rather that her testimony amounted to “nothing more than parroting” DiFranco's conclusions. When asked on direct examination if she had “form[ed her] own independent opinion as to the composition of the substances,” Brooks replied, “Yes,” and then stated, “Based on my review of the data associated with Case File 10–12477, based on the notes and the data that were generated during the course of the analysts' original analysis, Item 3 was found to contain cocaine, and Item 4 was found to contain heroin” (emphasis supplied). This testimony is problematic to the extent Brooks was testifying that the items were found by DiFranco to be cocaine and heroin. See Commonwealth v. Nardi, 452 Mass. 379, 392 (2008) (“This testimony is plainly hearsay insofar as [the witness medical examiner] was testifying to, and asserting the truth of, statements recorded by [a nontestifying medical examiner] in his autopsy report”). To the extent Brooks was testifying that the items were found by her to be cocaine and heroin, such testimony is permissible.
The issue whether Brooks's testimony conformed with our rules of evidence does not merit extensive discussion, however. To the extent the defendant is even making such an argument, it consists of essentially two sentences without citation to any relevant case law and fails to rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Best, 50 Mass.App.Ct. 722, 727 (2001) (argument consisting of “two lines and a one-sentence conclusion citing no legal authority” does not merit extended discussion).
Furthermore, this is not the same claim he made at trial. See Commonwealth v. Grady, Supreme Judicial Court, No. SJC–11968, slip op. at 7–12 (July 12, 2016). An objection on this ground would have given the Commonwealth and the judge an opportunity to address any error in the form of Brooks's opinion testimony. See id. at 8–9. Were we to reach the issue, our review would be limited to determining whether the form of her testimony created a substantial risk of a miscarriage of justice. See Nardi, supra at 394. We perceive no such risk. The Commonwealth produced evidence that the defendant attempted to hide the plastic bag from the police when they approached and that the packaging was consistent with drug distribution. One officer testified, without objection, that “numerous bags of cocaine” were found “secreted in his back buttocks area.” To the extent Brooks acted as a conduit for DiFranco's opinion, rather than expressing her own, see Greineder, supra at 595, we are confident that any such error did not materially influence the guilty verdict. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Sufficiency of evidence of prior conviction. Finally, the defendant contends that his conviction as a repeat offender under G.L. c. 94C, § 32A(d), cannot stand because the evidence was insufficient to prove that he was the same Ernesto Ortiz who was convicted of possession of a class D substance with intent to distribute in Lowell District Court on February 27, 2001.
The evidence included a certified copy of a registry of motor vehicles (RMV) record of current and historical license and demographic information, which included the defendant's name, current address, social security number, photograph, and a date of birth (“10/19/1967”). The RMV record also showed a prior address, 95 West Street in Lowell, as of February 21, 2001. Desmarais testified that he arrested and booked the defendant for the current offense, and that he was the same person shown in the RMV photograph. The certified record of the prior conviction included a complaint dated September 12, 2000, naming as the defendant Ernesto Ortiz, 95 West Street, Lowell, with the same social security number as shown in the RMV record. Despite the fact that the prior conviction gave the defendant's birthday as “06/19/1967” rather than “10/19/1967,” viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), the evidence was sufficient for a rational trier of fact to conclude that the defendant was the same person. See Commonwealth v. Bowden, 447 Mass. 593, 596 n. 6, 602 (2006) (despite discrepancy in street address that “appeared to arise from an error of transcription,” evidence showed correlation in name, date of birth, prior addresses, and RMV photograph). The Commonwealth's proof went well beyond “[m]ere identity of name.” Commonwealth v. Koney, 421 Mass. 295, 302 (1995).
The defendant's identity was further corroborated with certified court records concerning a July 3, 2001, criminal complaint in Lowell District Court, naming as the defendant Ernesto Ortiz, with the same Lowell address and social security number, and with a birthdate of “10/19/1967.”.
Judgments affirmed.