Opinion
18-P-767
07-29-2020
COMMONWEALTH v. SANDRO VELASQUEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was indicted for trafficking in heroin and unlawful possession of ammunition after 44.85 grams of heroin, six bullets, and objects consistent with packaging heroin for sale were seized from an apartment that the defendant identified to a booking officer as his residence. After the defendant's motion for a required finding of not guilty on the ammunition indictment was allowed, a Superior Court jury convicted the defendant of trafficking in more than thirty-six but less than one hundred grams of heroin. G. L. c. 94C, § 32E (c). The defendant appeals, challenging the sufficiency of the evidence of possession, the admission of his booking statements through the testimony of someone other than the booking officer who received them or the translator who conveyed them, the denial of his motion to suppress, and the admission of opinion testimony. The defendant also alleges that trial counsel was ineffective because he neither moved to strike testimony of the defendant's booking statements nor sought a curative instruction. The defendant filed a motion for a new trial, which is the preferred method for raising this last claim, Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), but the motion was withdrawn. The defendant contends that "the factual basis of the claim appears indisputably on the trial record" (quotation omitted). Id. at 811. We affirm.
The defendant speaks Spanish and also told the booking officer that he was unemployed.
The defendant also filed a motion to revise and revoke his sentence that does not appear to have been acted on.
Background. We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Several Boston police officers executed a search warrant at a four-bedroom apartment in the Dorchester section of Boston at 8 A.M. on October 25, 2014. After knocking, announcing their presence, hearing voices inside but receiving no response, and forcefully entering the apartment, officers came upon the defendant hiding in the living room between a couch and a wall, a juvenile female in a bedroom, and two adult females in the bed of another bedroom. The defendant was wearing shorts and a T-shirt. Heroin was seized from common areas of the apartment, along with other items consistent with drug distribution. From a bedroom containing men's clothing and deodorant, officers seized items that are commonly used to prepare heroin for sale, along with four cell phones. The officers observed a lit candle on the floor of the bedroom when they entered. The other three bedrooms were decorated in a manner consistent with female occupants and contained documents bearing the names of the three women who were in the apartment when the police arrived. Nothing was seized from any of those bedrooms or the three women.
The defendant's motion to include photographs of exhibits in the record appendix (paper no. 11) is allowed.
The defendant was searched at the apartment and found to be in possession of a cell phone and $258. Officer John Rogers placed the defendant under arrest, transported him to the police station, and was present while a booking officer asked the defendant "various questions" including "name, date of birth, address, employment, height, weight, [and] hair color." Rogers testified that the defendant provided the address of the apartment and stated that he was unemployed. On cross-examination, counsel established that these statements were made to the booking officer, with the assistance of a translator, rather than directly to Rogers. Rogers identified "Officer Ortiz" as "the person who took [the] booking information from [the defendant]." Rogers did not specify whether Ortiz was the booking officer or the translator, and counsel did not ask any further questions. The defendant's motion for a required finding of not guilty on the trafficking charge was denied.
Discussion. 1. Sufficiency. The essential elements of possession "are knowledge plus ability and intention to control." Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 532 (2000). While "mere presence in proximity to contraband, or even '[l]iving in a place where drugs are in plain view and being sold,' is insufficient to establish constructive possession," Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013), quoting Commonwealth v. Boria, 440 Mass. 416, 418 (2003), "presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency" (quotations omitted). Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989).
Here, the jury could infer that the defendant resided in the apartment because he "gave the apartment as [his] address at booking." Hamilton, 83 Mass. App. Ct. at 412. The defendant was also present in the apartment first thing in the morning, wearing only shorts and a T-shirt. These facts, that the defendant was the only male in the apartment, the presence of a lit candle (suggesting someone was recently in the room), and the presence of male clothing and deodorant, supported an inference that the only bedroom to contain materials consistent with trafficking in heroin belonged to the defendant. See id. The jury could also infer from the presence of these materials in the defendant's bedroom, and the absence of heroin, that the defendant stored the drugs in common areas so he could claim, as he did, that the drugs were not his. See Commonwealth v. Tavares, 87 Mass. App. Ct. 471, 473 (2015), quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("[i]nferences made by the jury need only be 'reasonable and possible,' not 'necessary or inescapable'"). Evidence that the defendant was closest to the door when the police knocked on it but hid instead of answering "could be considered by the jury as an indication of consciousness of guilt." Commonwealth v. Pratt, 407 Mass. 647, 652 n.7 (1990). A myriad of facts beyond the defendant's mere presence tipped the scale in favor of sufficiency. See Commonwealth v. Williams, 422 Mass. 111, 121 (1996) (conviction may be based entirely on circumstantial evidence so long as that evidence establishes defendant's guilt beyond reasonable doubt). The fact that other people had access to the common areas does not change this result. Possession need not be exclusive. Commonwealth v. Watson, 36 Mass. App. Ct. 252, 259 (1994). The defendant's remaining claims, including his challenge to the chemist's testimony, go to the weight of the evidence, which was a matter for the jury. See Commonwealth v. Lao, 443 Mass. 770, 780 (2005).
2. Admission of booking statements. Rogers's testimony that the defendant provided the apartment number as his address did not run afoul of the Sixth Amendment to the United States Constitution, or art. 12 of the Massachusetts Declaration of Rights, because responses to routine booking questions designed to gather biographical information are not testimonial. See Commonwealth v. Feeney, 84 Mass. App. Ct. 124, 133-134 (2013). Furthermore, "we discern no basis on this record to conclude that the translation was not reliable or accurate." Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016).
We take note of two corrections to the defendant's principal brief as set forth in paper no. 13.
The defendant's statement that he was unemployed was testimonial. Commonwealth v. White, 422 Mass. 487, 501 (1996). We will assume without deciding that this portion of the defendant's booking statement was introduced for its truth, see AdonSoto, 475 Mass. at 509, and that allowing Rogers to testify to the statement was error. The error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 346 (2017) (trial errors couched in claim of ineffective assistance are reviewed for a substantial risk of a miscarriage of justice). The source of the $258 found on the defendant, or of the funds necessary to purchase five cell phones, was not necessary for the Commonwealth to sustain its burden of proof. Thus, "we are persuaded that [the error] did not 'materially influence[]' the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
However, we note that (1) the defendant was arrested at the apartment and, presumably, received Miranda warnings before being asked whether he was employed, see White, 422 Mass. at 501, and (2) there is no claim that the statement was inadmissible because it was obtained by compulsion, see Commonwealth v. Acosta, 416 Mass. 279, 283 (1993).
3. Remaining claims. There was no error in the denial of the defendant's pretrial motion to suppress. Having conducted a de novo review of the affidavit in support of the search warrant, Commonwealth v. Foster, 471 Mass. 236, 242 (2015), we agree with the motion judge that evidence of three controlled buys, conducted in the circumstances described in the affidavit, demonstrated the reliability of the informant and provided probable cause to believe that evidence of heroin trafficking would be located in the apartment. The discovery of such evidence upon execution of the warrant, and the defendant's sole male presence in the apartment at 8 A.M., provided probable cause to arrest him for engaging in the distribution of heroin.
The Commonwealth's expert on common characteristics of drug use and distribution testified that he was not involved in the defendant's case. Consequently, his opinion on the hypothetical posed by the prosecutor did not constitute an ultimate opinion on the case. Even if it did, however, the error was not prejudicial. The judge instructed jurors that, "as with any other witness, it is completely up to you to decide whether you accept the testimony of an expert witness, including the opinions that the witness gives." However, the judge continued, "[y]ou must also . . . keep firmly in mind that you alone decide what the facts are," for "expert witnesses do not decide cases; juries do." We presume the jury followed the judge's instructions. See Commonwealth v. Hoose, 467 Mass. 395, 412-413 (2014).
Judgment affirmed.
By the Court (Meade, Massing & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 29, 2020.