Opinion
18-P-939
12-09-2019
COMMONWEALTH v. Michael SANCHEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the District Court, a jury convicted the defendant, Michael Sanchez, of committing a drug offense within one hundred feet of a public park in violation of G. L. c. 94C, § 32J. On appeal, the defendant contends that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth failed to prove that he knew that he was within one hundred feet of a public park. He also argues that the admission in evidence of a photograph depicting a distance measurement violated his constitutional right to confrontation. We affirm.
Background. The defendant was the target of a narcotics investigation opened in August 2016 by Salem Police Detective Kristian Hanson. As part of this investigation, Detective Hanson called the defendant to arrange a drug transaction. The defendant agreed to meet, but chose to do so in Beverly because "[h]e felt Salem was too hot." As a result of the defendant's request, Detective Hanson contacted Beverly Police Detective Dana Nicholson, who agreed to participate in the investigation and work undercover. On August 10, 2016, Detective Nicholson called the defendant to arrange a cocaine purchase. Apparently due to heavy traffic at their original meeting location, the defendant told Detective Nicholson to meet him at "the front of the Beverly Depot" instead, on the "Park Street side."
Detective Nicholson first met the defendant in person two days earlier at "[t]he McDonald's bathroom on Elliott Street in Beverly."
Detective Nicholson arrived at the Beverly Depot at around 6 P.M. Because "there were no parking spots available," Detective Nicholson parked his car "sideways" behind other parked cars. He testified that he could see the Beverly Veterans Memorial Park (park) from where he parked his car. The defendant arrived in a gray Ford Focus, got out of the Focus, and walked to Detective Nicholson's car. The defendant entered Detective Nicholson's car on the passenger side, sold him cocaine, got out, and walked back toward the Focus. The entire interaction inside Detective Nicholson's car lasted approximately "[t]hirty seconds."
Testimony and exhibits at trial established that a monument, cannons, flags, benches, and trees -- all of which were part of the park -- were visible from the Beverly Depot parking area.
On August 12, 2016, Detective Nicholson arrested the defendant for narcotics distribution. On August 23, 2016, Detective Nicholson, Detective Hanson, and Salem Detective Kevin St. Pierre returned to the Beverly Depot to measure the proximity of the drug sale to the park. Detective St. Pierre took the measurements with a Rolatape, a measuring device, while Detective Hanson took photographs. Detective St. Pierre measured the distance from the edge of the park to the location of the drug sale to be sixty-four feet.
Detective Nicholson indicated to the other detectives where he had parked his car for the duration of the transaction, and observed the entire measurement process.
Detective St. Pierre did not testify at trial.
Discussion. 1. Mens rea. The defendant was convicted of violating G. L. c. 94C, § 32J, which in relevant part criminalizes the commission of an enumerated drug offense "within 100 feet of a public park or playground." The defendant first argues that the Commonwealth was required to prove that he knew he was within one hundred feet of a public park when he sold cocaine to Detective Nicholson on August 10, 2016.
The defendant was initially arraigned on eleven counts across two dockets. The judge dismissed various counts at the request of the Commonwealth, and the defendant pleaded guilty to multiple counts of distribution of a class B substance. A jury trial proceeded solely on the park zone violation count, and the only issue before the jury was whether the cocaine distribution occurred within one hundred feet of a public park.
While this appeal was pending, the Supreme Judicial Court decided Commonwealth v. Matta, 483 Mass. 357 (2019). In that case, the court held that "with respect to the ‘public park or playground’ provision of § 32J, the intent to commit the underlying drug crime is sufficient, without additional proof of knowledge of park or playground boundaries required." Id. at 368. This conclusion squarely forecloses the defendant's argument here. The Commonwealth was not required to prove that the defendant knew that he was within one hundred feet of a public park.
2. Confrontation. The defendant next argues that he was denied his right to confront witnesses against him under the Sixth Amendment to the United States Constitution when the Commonwealth entered in evidence a photograph depicting a Rolatape reading of sixty-four feet (exhibit 15E). We disagree.
While the defendant did not object to the admission of exhibit 15E specifically on confrontation grounds, the Commonwealth concedes that the defendant adequately preserved this issue for appeal. We therefore review "to determine whether or not [the error was] harmless beyond a reasonable doubt." Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998).
We evaluate confrontation clause claims under a two-step framework. "First, we examine whether the statement is admissible under ordinary evidence rules, i.e., whether it qualifies as a hearsay exception. If it is admissible pursuant to a hearsay exception, we then consider whether admission of the statement is prohibited by the confrontation clause of the Sixth Amendment" (quotations and citations omitted). Commonwealth v. Irene, 462 Mass. 600, 609 (2012).
Implicit in the first step of the analysis, however, is the requirement that the nontestifying declarant make a "statement," for otherwise there is no hearsay issue. See Mass. G. Evid. § 801(c) (2019). A "statement" is "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Id. at § 801(a). The defendant argues that exhibit 15E constitutes Detective St. Pierre's statement of the distance between the park and the location of the drug sale. We disagree. Detective Hanson testified at trial that he took photographs of the measurement process, including exhibit 15E, the photograph of the final Rolatape reading. Therefore, to the extent exhibit 15E is a "statement," the declarant is Detective Hanson, not Detective St. Pierre. See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327 (2009) ("By its very nature, calculation of distance, or of weight, volume, speed, and the like is impossible without use of a tool that has been calibrated to show a relevant unit of measure .... When employed to measure something, none of those tools makes a ‘statement.’ Instead, the only ‘statement’ is the testimony of a witness about observations of distance, speed, weight, percentage, or volume he made as a result of using the tool").
Exhibit 15E does not depict any assertions --written, oral, or nonverbal -- on Detective St. Pierre's part. Therefore, Detective St. Pierre's absence from the trial implicates neither the hearsay rule nor the right to confrontation. Compare Commonwealth v. Caruso, 476 Mass. 275, 295 n.15 (2017) ("If the out-of-court statement is offered for any purpose other than its truth, then it is not hearsay and the confrontation clause is not implicated").
Even if exhibit 15E did contain Detective St. Pierre's statement, his absence from trial would not alter the result. Compare Commonwealth v. Grady, 474 Mass. 715, 720 (2016) (substitute analyst may testify to his own opinion based on his own review of underlying data); Commonwealth v. Barbosa, 457 Mass. 773, 783-784 (2010), cert. denied, 563 U.S. 990 (2011) ("Where a Commonwealth expert testifies to her own opinion, the opinion is not hearsay, because the declarant of the opinion is testifying at trial").
The defendant attempts to analogize the photograph in this case to the notes in Commonwealth v. Munoz, 461 Mass. 126 (2011), vacated and remanded, 568 U.S. 802 (2012). The facts of Munoz are clearly distinguishable. In Munoz, a substitute chemist testified in the place of the chemist who had originally weighed and tested the cocaine. Id. at 128. The substitute chemist's testimony was based only on his review of the testing chemist's notes, reports, and machine printouts. Id. Here, by contrast, Detective Hanson contemporaneously observed and photographed the entire measurement process from beginning to end.
Instead, "in each case where a witness testifies that he used a measuring tool to determine a distance, the relevant question is not whether the testimony is hearsay but whether the foundation was sufficient for introduction of the observed result." Whitlock, 74 Mass. App. Ct. at 327. Detective Hanson testified that he documented the measurement process from start to finish, from the edge of the park where the Rolatape read zero, to the location of the drug sale where the Rolatape read sixty-four feet. Detective Nicholson also observed the entire measurement process as it happened, and testified that the measurement ended where he parked his vehicle during the drug sale. The combination of these two detectives' testimony was sufficient to admit exhibit 15E, the photograph of the final Rolatape reading.
Finally, even assuming that exhibit 15E constitutes Detective St. Pierre's "statement," and that the statement is "admissible under ordinary evidence rules," Irene, 462 Mass. at 609, the admission of exhibit 15E did not violate the defendant's confrontation rights. The right to confrontation, at its core, "commands ... that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61 (2004). Here, the defendant had ample opportunity to cross-examine both Detectives Hanson and Nicholson on the measuring procedures that both personally witnessed in full. See Barbosa, 457 Mass. at 784 ("because the defendant may confront the declarant of the opinion through cross-examination, the defendant is not deprived of his right of confrontation").
The Commonwealth does not appear to contest the defendant's assertion that exhibit 15E was testimonial.
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In short, the defendant's claims are unavailing.
Judgment affirmed.