A jury convicted the defendant, Joel Rodriguez, of trafficking in cocaine in excess of 200 grams in violation of G.L. c. 94C, § 32E( b) (4). The Appeals Court affirmed the defendant's conviction, Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636 (2006), and we granted further appellate review primarily to consider the defendant's constitutional and statutory claims regarding a conversation intercepted under the authority of G.L. c. 272, § 99, the Massachusetts wiretap act. The defendant contends that testimony by a State trooper regarding his recollection of the intercepted conversation was wrongly admitted because the conversation was obtained in violation of art. 14 of the Massachusetts Declaration of Rights.
Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 263 (2020). The following cases provide examples where the court has concluded that the evidence as presented in a single charge to a jury constituted distinct or alternative theories of guilt: Plunkett, 422 Mass. at 635 (deliberate premeditation and felony-murder constitute alternative theories of murder); Manzelli, 68 Mass. App. Ct. at 695 n.8 (interception of oral communication and attempted interception of oral communication present alternate theories of criminal liability under G. L. c. 272, § 99); Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 648 (2006), S.C., 450 Mass. 302 (2007) (possession with intent to distribute, and “bringing into” Commonwealth constitute alternate theories of cocaine trafficking); Commonwealth v. Zuluaga, 43 Mass. App. Ct. 629, 641 (1997) (constructive possession and actual possession constitute alternative theories of drug trafficking). In these cases, the court held that the alternate theories presented to the jury were “ ‘separate, distinct, and essentially unrelated ways in which the same crime can be committed,’ requiring on appeal that the evidence as to each theory be assessed separately” (citation omitted).
Bain also points to several cases holding that evidence adduced at trial or facts admitted in connection with a guilty plea were sufficient to support a conviction for trafficking under multiple theories. See Commonwealth v. Rodriguez, 67 Mass.App.Ct. 636, 855 N.E.2d 1113, 1123 (2006) (sufficient evidence at trial), aff'd 450 Mass. 302, 877 N.E.2d 1274 (2007) ; Commonwealth v. Panopoulos, No. 99-P-2023, 2001 WL 695106, at *1 (Mass. App. Ct. June 20, 2001) (unpublished disposition) (guilty plea); Commonwealth v. Manrique, 31 Mass.App.Ct. 597, 581 N.E.2d 1036, 1040 (1991) (sufficient evidence at trial). None of these cases demonstrate that the statute was clearly indivisible.
The motion judge correctly concluded that neither the Fourth Amendment nor art. 14 is implicated by the 'sting' video or Connors's eavesdropping on the December 15th payment meeting. See Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 640-644 (2006). See also Commonwealth v. Price, 408 Mass. 668, 672-673 (1990); Commonwealth v. Collado, 42 Mass. App. Ct. 464, 469 (1997).
However, nowhere in the majority opinion is there an acknowledgment that Massachusetts has retreated from the Blood, decision, though not specifically overruling it. In Commonwealth v. Rodriguez, 67 Mass.App. Ct. 636, 855 N.E.2d 1113 (2006), the Massachusetts Supreme Court was faced with an argument, based upon Blood, that the warrantless monitoring of a drug transaction at an informant's apartment with the informant's consent violated the defendant's rights. Explaining Blood and subsequent decisions, the Massachusetts Supreme Judicial Court stated:
December 20, 2006. Appeal from the Reported below: 67 Mass. App. Ct. 636 (2006). Further appellate review granted:
The defendant disclaimed ownership of the package to the clerk and then concealed the package in a brown bag, demonstrating an intent to avoid detection. See id. (defendant's action to avoid detection contributed to sufficiency); Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 649 (2006), S.C., 450 Mass. 302 (2007) (fact that "defendant attempted to evade police capture after securing the package" contributed to sufficiency). When investigators tested the package's contents, they found approximately $40,000 to $45,000 worth of heroin.
Because the claim of error that the defendant now presses was waived at trial, our review is limited to whether the admission of the document constituted a substantial risk of a miscarriage of justice. See Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 641 (2006). The defendant cannot make such a showing here even were there merit to his attestation argument (a question we need not decide). Regardless of whether a stamped seal alone satisfies the letter of the statute, the defendant has provided no reason to doubt the authenticity of the court record here.
In the absence of any objection below, we normally apply the substantial risk of a miscarriage of justice test to the objectionable evidence. Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 641 (2006), S.C., 450 Mass. 302 (2007). The defendant maintains that he is entitled to the more stringent standard of review despite his lack of objection because, notwithstanding the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), Commonwealth v. Verde, 444 Mass. 279 (2005), was still the law of the Commonwealth at the time of trial.
The Melendez-Diaz issue is raised for the first time on appeal and expanded in the defendant's reply brief; our review is therefore limited to whether admission of the drug certificates created a substantial risk of a miscarriage of justice. See Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 641 (2006) (unobjected-to constitutional error is subject to review under substantial risk standard). Even if the more stringent standard of harmless beyond a reasonable doubt were applied, we would find the introduction of the drug certificates in this case to be harmless beyond a reasonable doubt.