Opinion
No. 10–P–1709.
2012-07-17
COMMONWEALTH v. Edgar SANCHEZ.
By the Court (CYPHER, HANLON & CARHART, JJ.)
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of heroin with intent to distribute. He appeals, arguing that it was prejudicial error to admit a handwritten crack cocaine recipe in evidence; the trial judge abused her discretion when she permitted a State police officer to give an opinion on a matter beyond the scope of his established expertise; and the evidence was insufficient to support his conviction. We affirm.
The defendant later pleaded guilty to a second or subsequent offense.
Handwritten crack cocaine recipe. During the execution of a search warrant of the defendant's apartment, a two-page document, handwritten in Spanish and listing ingredients and instructions for the manufacture of crack cocaine, was found in the “front bedroom” among the defendant's personal papers and bills. The defendant argues that the document was not properly linked to him because there was no handwriting analysis to determine whether he wrote the recipe, nor was there any identifying information contained on the document. In addition, he maintains that the document was more prejudicial than probative because the recipe was for the manufacture of crack cocaine, and not heroin, the drug specified in the indictment. A determination whether the probative value of relevant evidence is outweighed by its prejudicial effect is within the judge's discretion and will be overturned only if the defendant can “bear the heavy burden of demonstrating an abuse of that discretion.” Commonwealth v. Cruz, 445 Mass. 589, 592 (2005). See Commonwealth v. Walker, 460 Mass. 590, 612–613 (2011). The police found the recipe among other personal items of the defendant; therefore, it was reasonable for the jury to draw an inference that the recipe belonged to him. See Commonwealth v. Gambora, 457 Mass. 715, 730 (2010). In addition, as the Commonwealth argues, authorship of the document was irrelevant; what made the document relevant was that it shed light on the defendant's intent. We see no abuse of discretion in the judge's thoughtful analysis:
“The possession of the document by the defendant among his possessions in the apartment shows an intent to distribute illegal narcotics, controlled substances, and the fact that it doesn't relate specifically to heroin versus—that it relates to cocaine versus heroin, I still think it is relevant and that the relevancy outweighs its prejudicial effect.”
Testimony by Trooper Gondella. When the police entered the defendant's first-floor apartment, Trooper Gondella observed the defendant “kneeling down in front of the toilet”; the water in the toilet bowl was “swirling around ... as if it was filling back up.” Concerned that illegal drugs were being destroyed, the trooper “dismantled the toilet.” He then went to the basement of the building and ripped out the piping that was attached to the coupling below the toilet. He then “smashed the piping that was connected to the bottom of that, which [led] out to the street,” because “[i]t appeared to be a low spot” and “it seemed like the-this Y [pipe] that's inserted into the pipe under there was pitched backwards slightly” and would prevent the “water [from] flush[ing] right out” to the street. He used a ladle to “reach into the pipe approximately a few inches and to scoop up the twists of evidence that [he] removed to place them in a bag.” These “twists” contained the heroin the defendant was accused of possessing. No effort was made to qualify the trooper as an expert witness, and most of this testimony was admitted without objection.
On appeal, the defendant argues that the judge abused her discretion when she permitted the trooper to testify about what he observed, because Gondella's testimony went beyond the scope of a layperson and was based on his expertise in plumbing and water drainage drawn from his prior job as a plumbing supply salesman who also worked “weekend” plumbing jobs.
“Generally, a witness may testify to facts observed by him and may not give an opinion based on those facts.” Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 137 (2002). Here the trooper's testimony was based on specific observations he made in the defendant's apartment and in the basement, and not on “scientific, technical or other specialized knowledge” of plumbing systems in general. See Mass. G. Evid. §§ 701 and 702 (2012). While his vocabulary and his actions may have demonstrated knowledge beyond that of the average person, he was not asked to give an opinion at any point, at least during direct examination, and the defendant was given a full and fair opportunity to cross-examine him. We see no abuse of discretion.
Sufficiency of the evidence. Finally, the defendant argues that the Commonwealth offered insufficient evidence to prove that he actually or constructively possessed the heroin found in the basement pipe or that he intended to distribute it. “While presence in an area where contraband is found ‘alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] ... presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.’ “ Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618 (1990), S. C., 410 Mass. 1005 (1991), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409, 410 (1989). Here, the jury heard evidence that the defendant ran back into his apartment to flush the heroin after seeing police vehicles parked outside near his home; that the heroin recovered from the basement drain pipe was the matter the defendant had flushed just moments before and that it was of sufficient quantity to permit an inference that he intended to distribute it. Finally, the drug paraphernalia and large amount of cash seized from the defendant's apartment, combined with the cocaine recipe seized from the bedroom, demonstrated that the defendant intended to distribute the drugs in his possession. “The weight and credibility of the evidence is the province of the jury.” Commonwealth v. Dubois, 451 Mass. 20, 28 (2008).
Judgment affirmed.