Opinion
No. 15–P–929.
12-09-2016
COMMONWEALTH v. Corey DOW.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Corey Dow, was convicted on indictments for possessing a large capacity feeding device, G.L. c. 269, § 10(m ) ; illegally possessing a firearm and ammunition, G.L. c. 269, § 10(h ), without a firearm identification card, G.L. c. 140, § 129C ; three indictments for possession of a class B substance (cocaine, Suboxone, and Oxycontin), G.L. c. 94C, § 34 ; and one indictment for possession of a class C substance (Vicodin ), G.L. c. 94C, § 34. Prior to trial, the defendant filed a motion to suppress the evidence recovered during a search of his apartment. When the judge denied the motion, the defendant filed a motion for reconsideration, which was also denied by the motion judge.
On appeal, the defendant claims that (1) the motion judge erred in denying the defendant's motion to suppress evidence seized during the search of his apartment; (2) the motion judge erred in finding that the plain view doctrine permitted police to seize prescription pills from the defendant's bedroom; and (3) by allowing the Commonwealth to present drug analysis testimony through a confirmatory chemist rather than the primary chemist, the trial judge deprived the defendant of his constitutional right to confrontation. For the reasons that follow, we affirm.
Motion to suppress. As set out in the affidavit in support of the search warrant application, Salem police Detective Kevin St. Pierre has been an officer since 2001, and has received training in narcotics investigations and identification. He has also participated in narcotics investigations and has executed narcotics warrants. In May of 2011, Detective St. Pierre spoke with a confidential informant, who reported that the defendant was selling cocaine from his cars. The informant provided the police with descriptions of the defendant's cars and apartment, which the police used to confirm the defendant's address. From May 12, 2011, to June 13, 2011, the informant made four controlled purchases of cocaine from the defendant. During three of these purchases, police observed the defendant leave his apartment and proceed to the purchase location without making any stops. After each purchase, the informant returned to the police station without making any stops, and handed over a quantity of cocaine in a clear plastic bag. Thereafter, Detective St. Pierre obtained a warrant for the defendant's apartment to search for:
"Any and all class ‘B’ substances as described in Chapter 94C of the drug laws, any and all paraphernalia to include materials used to prepare and package cocaine for sale at the street level; to include scales, plastic bags, papers, cutting agents, equipment used to sell and distribute cocaine such as cellular telephones, any records of the illegal sales of cocaine, any and all monies believed to be proceeds from the illegal sales of cocaine, and any money used during this investigation to make controlled purchases of cocaine, and the personal property such as mail, records, identification, clothing, passports, driver's license, and utility bills in the name of Corey M. Dow."
During the search, police seized from the defendant's person a forty-dollar bag of cocaine, one-half of a Suboxone pill, a cellular telephone, and $1,556 in cash. From inside the defendant's apartment, police seized, among other things, a scale, plastic bags, $11,000 in cash, guns and ammunition, and a Versace box. The Versace box was located on the dresser in the master bedroom. Inside the box were plastic bags containing different types of prescription pills: Suboxone, Xanax, Vicodin, and Oxycontin.
Trial evidence regarding drug analysis. At trial, the Commonwealth presented testimony regarding the drug analyses of the seized cocaine and prescription pills. The analyses were performed by chemists at the William A. Hinton State Laboratory Institute (the lab). The procedure at the lab was for a primary chemist to analyze the drugs by weighing them, running a literature search to compare any markings and identification, and performing color or microcrystalline testing. These preliminary analyses would then be sent to a confirmatory chemist, who would perform a chemical structural analysis of the substance (the gas chromatography-mass spectrometer test, hereinafter GCMS) to confirm or to deny the primary chemist's results. By the time of the defendant's trial, the primary chemist on the defendant's case, Zhi Yi Tan, had moved out of State. The Commonwealth thus called the confirmatory chemist, Daniel Renczkowski, to testify to the results of the drug analysis.
Validity of search warrant. The defendant argues that the warrant to search his apartment was invalid because the supporting affidavit did not establish a nexus between the defendant's residence and the drug activity, and therefore the motion judge erred in denying his motion to suppress the evidence from the apartment search. An affidavit for a search warrant must provide adequate information to "establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there." Commonwealth v. Gallagher, 68 Mass.App.Ct. 56, 59 (2007). There is no bright-line rule for how to establish such a nexus, but police observations "of a suspect on multiple occasions leaving his residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in his residence." Commonwealth v. Escalera, 462 Mass. 636, 643 (2012).
In his affidavit, Detective St. Pierre describes four separate controlled purchases of cocaine, witnessed by the police, between the defendant and the informant. The affidavit states that, on three of these four occasions, police watched the defendant leave from his apartment soon after getting a telephone call from the informant, and proceed directly to the transaction location without making any stops. Based on this information, there was probable cause to conclude that the defendant kept a supply of cocaine in his apartment, along with the instrumentalities for packaging it. The affidavit contained sufficient information to establish the necessary nexus between the defendant's drug activity and his place of residence; therefore, the search warrant was valid. The motion judge did not err in denying the defendant's motion to suppress.
The defendant argues that the information in the affidavit could have equally supported an inference that the defendant was selling drugs from his car, not his apartment; however, evidence that the defendant may have been selling drugs from his car does not detract from the conclusion that there was probable cause to search the apartment. Commonwealth v. Colon, 80 Mass.App.Ct. 162, 167–169 (2011).
Plain view doctrine. "[A] police officer may seize objects in plain view where four requirements are met: (1) the officer is ‘lawfully in a position to view the object’; (2) the officer has ‘a lawful right of access to the object’; (3) with respect to ‘contraband, weapons, or other items illegally possessed, where the incriminating character of the object is immediately apparent’ ...; and (4) the officer ‘come[s] across the object inadvertently.’ " Commonwealth v. White, 469 Mass. 96, 102 (2014), quoting from Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 306–307 (2010).
The defendant takes issue with the third prong of the test, arguing that because there was a prescription pill bottle near the Versace box, it could not have been immediately apparent that the pills inside the box were illegal. In particular, the defendant relies on Commonwealth v. White. In White, supra at 97, the officer found on the defendant's person a prescription bottle with the defendant's name on it, containing a pill the defendant alleged to be for blood pressure. The officer then found and opened a box that he knew would normally contain blood sugar testing strips but, after shaking it, sounded as though it contained pills. Ibid. The defendant claimed the pills in the box were also blood pressure medication; however, because the officer did not recognize the pills, he seized them. Ibid. The court in White ruled that the pills were inadmissible because it was not apparent to the officer that they were contraband until he conducted an online search at the police station. Id. at 97–98. In this case, by contrast, there was only one prescription pill bottle near the Versace box, but four different types of prescription pills in the box itself. Moreover, the pills were packaged in plastic bags—the same way the cocaine the defendant sold to the informant was packaged. It was reasonable for the motion judge to decide that in these circumstances, the incriminating character of the pills would have been immediately apparent, especially to the eye of a trained and experienced narcotics officer. The motion judge properly applied the plain view doctrine and denied the motion to suppress the pill evidence.
Confirmatory chemist's testimony. The defendant claims that the testimony of the confirmatory chemist, Renczkowski, was inadmissible under the Federal and State confrontation guarantees, absent a showing that (1) the primary chemist, Tan, was unavailable; and (2) the defendant had a prior opportunity to cross-examine Tan. Expert witnesses are, however, permitted to base their opinions on facts or data not in evidence, so long as the facts or data are "independently admissible and are a permissible basis for an expert to consider." Commonwealth v. Markvart, 437 Mass. 331, 337 (2002) (quotation omitted).
Because Tan, the primary chemist in the investigation, had moved out of State by the time trial started, the Commonwealth called the confirmatory chemist, Renczkowski, to testify. Aside from two statements in passing regarding Tan's "preliminary" conclusions, Renczkowski was only allowed to testify as to his own expert opinion. Renczkowski's testimony focused on the GCMS tests he performed, which were more sophisticated than the initial tests Tan performed. In these circumstances, Renczkowski's testimony was admissible without the Commonwealth having to prove that Tan was unavailable or providing the defendant a chance to cross-examine Tan. See Commonwealth v. Barbosa, 457 Mass. 773, 783–784 (2010) ("Where a Commonwealth expert testifies to her own opinion, the opinion is not hearsay, because the declarant of the opinion is testifying at trial"). It was not error to allow Renczkowski to testify.
Renczkowski's testimony did, however, contain two instances of unsolicited hearsay regarding Tan's analysis. The defendant did not object to the first instance, and objected to the second instance but did not move to strike the hearsay statement. Therefore, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Stewart, 460 Mass. 817, 824 (2011) (without objection, review of error is for substantial risk of miscarriage of justice); Commonwealth v. Grady, 474 Mass. 715, 720–721 (2016) (where answer was improper, but question was not, defendant should have moved to strike answer in order to preserve issue). We conclude that, although impermissible, the statements did not create a substantial risk of a miscarriage of justice because they were accurately described as preliminary and were merely duplicative of Renczkowski's own opinions and test results.
In the first instance, the Commonwealth asked Renczkowski, "What happened the first time you ran [the sample] through [the GCMS machine]?" Renczkowski responded, "The first time I ran them through, the one sample that was preliminarily identified as cocaine B1107275 I was able to determine that there was cocaine present." In the second instance, the Commonwealth asked, "Once you reviewed the notes with the preliminary testing of [Tan], did you have an opinion yourself of the identity of the substances that were submitted for testing?" Renczkowski responded, "In regards to B 11 07275 based on the notations that [Tan] had written, they appeared to be preliminary positive for cocaine."
Finally, the defendant argues that the trial judge should not have allowed drug certificates prepared by Tan in evidence via Renczkowski's testimony. The certificates contained the analysis results of each substance Renczkowski and Tan tested, along with both chemists' signatures. The trial judge allowed the certificates in evidence over the defendant's objection, but instructed that Tan's signature be redacted from them so as to avoid a confrontation clause issue. As the chemists' findings were duplicative and Tan's signature was removed, we discern no error in this decision.
Judgments affirmed.