Opinion
11-P-25
12-06-2012
COMMONWEALTH v. LUIS A. FIGUEROA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of a class B controlled substance with the intent to distribute in violation of G. L. c. 94C, § 32A(a). On appeal, he claims that his motion to suppress should have been allowed, and that there was insufficient evidence he possessed cocaine with the intent to distribute it. We affirm.
1. Motion to suppress. The defendant claims the judge erred by denying the motion to suppress, because he maintained an expectation of privacy in a jacket (where the cocaine was found) that he denied owning. We disagree. Even if we assume the defendant had automatic standing under Commonwealth v. Amendola, 406 Mass. 592, 600-601 (1990), to challenge the seizure of the cocaine, he would not be relieved of the burden to demonstrate that he had a constitutionally protected reasonable expectation of privacy in the jacket that Officer Otero searched. See Commonwealth v. Carter, 424 Mass. 409, 411-412 (1997); Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 155 (2008). Here, as the Commonwealth argues, when the defendant told Officer Otero that the jacket was not his, Otero could have drawn two conclusions: either (as the motion judge concluded) the defendant abandoned any interest that he may have had in the jacket, or he never had an interest in the jacket. In either case, the defendant failed to carry his burden to prove both that he had a subjective expectation of privacy in the jacket and that society would recognize this expectation as reasonable. See Commonwealth v. Montanez, 410 Mass. 290, 301 (1991); Commonwealth v. Duncan, supra at 155-156. Because abandonment is primarily a question of intent, Commonwealth v. Paszko, 391 Mass. 164, 184 (1984), and the officer saw the defendant walk into the bar wearing the jacket and leave the bar without it when police first escorted him outside, we cannot find fault in the judge's conclusion that the defendant's spoken intent of denying ownership showed that the jacket was abandoned. The motion to suppress was properly denied.
The testimony made clear that the defendant was not placed under arrest until later, after the search of the jacket.
Unlike Commonwealth v. Augello, 71 Mass. App. Ct. 105, 106-110, S. C., 452 Mass. 1021 (2008), on which the defendant relies, where the suitcase searched was in the defendant's home, which enjoys the highest constitutional protection, here the jacket was in a public place which enjoys no such protection. Similarly, Commonwealth v. Small, 28 Mass. App. Ct. 533, 534-536 (1990), where the defendant's luggage was searched before he denied ownership, is of no assistance here where the jacket was only searched after the defendant denied ownership.
2. Sufficiency of the evidence. The defendant concedes that the evidence was sufficient to show that he possessed cocaine. However, because only a small sample of the seized cocaine was tested by the confirmatory chemist, the defendant claims that there was insufficient evidence that he possessed enough cocaine to prove an intent to distribute it. We disagree.
Putting aside that quantity alone does not resolve the distribution question, when the evidence is viewed in the light most favorable to the Commonwealth, the jury were entitled to draw the reasonable inference that since some of the recovered substance was cocaine, all of it was cocaine. The jury were further entitled to credit the testimony of the preliminary and confirmatory chemists, who determined through a series of tests that the pieces tested from the same sample were cocaine. Also, given Detective Conley's detailed expert testimony regarding the preparation, appearance, and packaging of crack cocaine, the jury could reasonably conclude that each of the eleven rocks came from the same source, and that each was cocaine.
To the extent the defendant claims that Conley's expert opinion of the identity of the seized material was improperly admitted in evidence, such a claim does not inform the sufficiency question. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995). See also Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010) ('[T]he constitutional sufficiency of the evidence under Commonwealth v. Latimore, 378 Mass. 671, 677-678 [1979], is to be measured upon that which was admitted in evidence without regard to the propriety of the admission').
We are also not persuaded that the admission of the objected-to opinion constituted prejudicial error (if it was error at all), in light of the strength of Conley's remaining testimony and the testimony of the chemists. For similar reasons, Officer Otero's (unobjected-to) testimony that the seized matter appeared to him to be cocaine did not create a substantial risk of a miscarriage of justice.
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Judgment affirmed.
By the Court (Meade, Sikora & Hanlon, JJ.),