Opinion
14-P-580
04-30-2015
COMMONWEALTH v. JOSE ROMERO.
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
After a jury trial, the defendant was convicted of trafficking in heroin. On appeal, he claims the judge erred by permitting the Commonwealth to admit in evidence his prior bad acts. We affirm.
Prior to trial, the judge allowed, in part, the defendant's motion in limine to exclude any evidence of the defendant's three prior sales of heroin to an undercover officer. During the trial, the judge revisited the issue at the Commonwealth's request and, over the defendant's objection, permitted the Commonwealth to admit the evidence of the three controlled buys.
Prior to trial on the defendant's trafficking indictment, the Commonwealth entered nolle prosequis on the three indictments related to the controlled buys.
A judge is permitted discretion to revisit pretrial rulings on evidentiary matters. Such rulings are not immutable and may be altered as "even if nothing unexpected happens at trial, the . . . judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling." Commonwealth v. Gonzalez, 22 Mass. App. Ct. 274, 277 n.5 (1986). As the evidence developed at trial, the Commonwealth requested that the judge alter his prior ruling. Before doing so, the judge gave the defendant time to formulate and fully argue his objection. See Commonwealth v. Ortiz, 431 Mass. 134, 142 n.7 (2000) (recommending that "when judges reconsider pretrial rulings, they so inform counsel and allow counsel an opportunity to be heard").
The evidence of the three controlled buys was properly admitted "to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). This was directly relevant to the trafficking indictment on trial, especially where the defense was that another possessed most of the heroin discovered during the search. Also, as the judge noted, there was no unfair surprise to the defendant because he had known for a year that he had to defend against the charges related to the controlled buys, and they were dismissed only a few days before trial. See Commonwealth v. Belmonte, 4 Mass. App. Ct. 506, 507 (1976). Finally, the judge properly instructed the jury on the limited use of the evidence both after the testimony was given and again in his final charge. There was neither error nor an abuse of discretion.
This became clear during the defendant's cross-examination of the Commonwealth's first witness, Sergeant Terestre.
Judgment affirmed.
By the Court (Grainger, Meade & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 30, 2015.