Opinion
14-P-1948
03-14-2016
COMMONWEALTH v. JOSE RIVERA PACHECO.
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, Jose Rivera Pacheco, appeals from a conviction of unlawful distribution of heroin following a jury trial in the Superior Court. After the jury verdict, the defendant pleaded guilty to the subsequent offender portion of the indictment. He argues on appeal that a police officer's reference on two occasions to a "drug transaction," despite the judge's allowance of the defendant's motion in limine to exclude testimony of any alleged narcotics transaction or an opinion about a narcotics transaction, was improper testimony about the ultimate fact to be determined by the jury, and that the references materially prejudiced the him. The defendant objected on both occasions; consequently, if there was error, it is preserved and we review to determine whether we are "sure that the error did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (quotation omitted).
The relevant evidence at trial included the testimony of a Springfield police lieutenant who had been watching the defendant from an unmarked police vehicle. He had observed the defendant walk around the streets in the immediate area. At one point, it appeared that the defendant was attempting to flag down passing vehicles. The defendant stopped outside a convenience store and waited for awhile before beginning to walk again. He caught up to some people who had been walking ahead of him. The lieutenant saw that they were having a conversation as they were walking. The lieutenant lost sight of the defendant and did not see him again until the defendant was walking back in the direction of the convenience store. The defendant was close to the lieutenant and he could see that the defendant was counting money. The defendant continued to walk around and finally returned to the convenience store and stood in front of it. The lieutenant saw a man, later identified as Efran Gonzalez, approach the defendant. The defendant and Gonzalez walked by the lieutenant. They were talking and it appeared to the lieutenant that Gonzalez had pulled out some money and that Gonzalez and the defendant both looked at the money.
Gonzalez entered the convenience store. When he returned to the street, he appeared to be counting money. The defendant signaled Gonzalez to follow him. The defendant crossed the street, Gonzalez caught up with him, and they walked together. They walked by the lieutenant's vehicle. The lieutenant saw Gonzalez give money to the defendant. The defendant reached into his pocket and gave something small to Gonzalez. Gonzalez put the item in his right pants pocket. At this point, the defendant and Gonzalez were about fifty feet from the lieutenant.
Gonzalez was taken into custody by two police officers. Officer Eugene Roux searched Gonzalez and recovered three bags of heroin from his right pants pocket. No money or other items were found in his possession. Two hours later the police located the defendant and arrested him. The defendant had no money and no narcotics on his person when he was arrested.
The lieutenant testified and did not characterize what he observed, consistent with the judge's order. However, when Officer Roux was asked during direct examination, "[W]hat were you doing around 10:00 A.M.?" he replied, "At that time . . . we got a radio transmission from the lieutenant. He said he witnessed a drug transaction taking place and --." The defendant objected, the judge sustained the objection, ordered that the answer be stricken, and instructed the jury to disregard the answer. The prosecutor asked Officer Roux if he had a conversation with the lieutenant and instructed Roux to just answer yes or no. Roux said, "Yes." The prosecutor then asked Officer Roux whether Gonzalez had been handcuffed when Roux placed him under arrest. Roux replied, "I'm sorry. We stopped him because we were told that there was a drug transaction --." The judge interrupted and instructed the officer not to refer to that, told the jury to disregard it, and ordered the answer stricken from the record.
The Commonwealth responds to the defendant's claim that this was improper opinion testimony that violated the judge's order by arguing that the answers were not, in fact, opinion evidence and they did not invade the province of the jury. Rather, the Commonwealth posits that the answers by Roux, who did not witness any transaction, explained why the police arrested Gonzalez. Such statements of explanation are typically admissible and are not considered hearsay because they are "offered as the reason why the police acted as they did, rather than being offered for the truth of their contents." Commonwealth v. Spencer, 53 Mass. App. Ct. 45, 51 n.4 (2001). Here, however, it is not the hearsay nature of the testimony that is a problem. Instead, it is that this particular explanation of police behavior also served to characterize what the lieutenant saw as a drug transaction, which was, in fact, the ultimate issue in the case.
The Commonwealth argues that even without the officer's two improper statements, the jury reasonably could have inferred from the evidence that the lieutenant believed that the defendant had been involved in a drug sale and that the Commonwealth's overall case was strong. While that may be accurate, it is not the standard we must apply. We must decide whether we can say with "fair assurance, after pondering all that happened without striping the erroneous action from the whole, that the judgment was not substantially swayed by the error" and that substantial rights were not affected. Commonwealth v. Flebotte, 417 Mass. at 353. In these circumstances we are unable to conclude that there was no prejudice.
The defendant also argues that the evidence was insufficient and that his motions for a required finding of not guilty, made at the close of the Commonwealth's case and again at the close of evidence, should have been allowed. We disagree. When the evidence is viewed in the light most favorable to the Commonwealth, a rational trier of fact could have found each element of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The inference that the heroin packets found in Gonzalez's pocket had been given to him by the defendant was not too remote in light of the other evidence in the case. See Commonwealth v. Soto, 45 Mass. App. Ct. 109, 112 (1998) (reasonable to infer that illegal drugs found in driver's possession immediately after encounter with defendant came from defendant). The lieutenant had watched the defendant for several hours in an area known for illegal drug activity, and the defendant's behavior was consistent with that of a person attempting to sell narcotics. Although the lieutenant did not see the actual item exchanged, he did see Gonzalez give the defendant cash, and nothing other than the heroin packets was found in Gonzalez's pockets. See Commonwealth v. Soto, supra (illegal drug transaction may be inferred from other circumstances even if what is transferred is not actually seen). Contrast Commonwealth v. Senati, 3 Mass. App. Ct. 304, 306 (1975) (evidence insufficient to distinguish buyer from seller where police officer only saw defendant and other man touch hands and did not see direction of any exchange). The motions for a required finding were properly denied.
Judgment reversed.
Verdict set aside.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 14, 2016.