Opinion
15-P-105
03-11-2016
COMMONWEALTH v. MARK NIKIEL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a bench trial, the defendant was convicted in Superior Court of possession of heroin with the intent to distribute. He appeals, challenging the sufficiency of the evidence and unobjected-to opinion testimony offered by a police officer. We affirm.
After the judge announced her finding, the Commonwealth agreed to file a nolle prosequi on so much of the indictment as alleged a subsequent offense under G. L. c. 94C, § 32(b).
Background. Because this appeal primarily concerns sufficiency of the evidence, we recount the events based on the evidence viewed in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
On November 30, 2012, Timothy Grady, then a narcotics detective with the Westfield police department, along with multiple other Westfield police officers, executed a search warrant for the first floor apartment at 8 Connor Avenue in Westfield, where the defendant lived with his mother and brother. Upon arrival, the officers encountered the defendant and his mother in the driveway. Grady searched the defendant and recovered fifty-three wax paper packets of heroin that were rubber-banded together in bundles of ten, as well as $224.55 in cash and a cellular telephone. The packets of heroin bore a "blue passion logo."
A chemist testified that the substances recovered were heroin. The defendant does not challenge the sufficiency of the evidence concerning the nature of the substances recovered from his person or his residence.
Grady and other officers then searched the defendant's bedroom. There Grady discovered a box containing rubber bands that matched the bands used to package the bundles of heroin packets recovered from the defendant's person. In a container on top of a dresser in that same bedroom, Detective Brian Freeman located what he characterized as "a small ledger," a torn piece of cardboard with three names and three numbers written on it.
Detective Roxann Bradley found a lone white bag of heroin on the floor of the defendant's bedroom. Bradley then opened a closet in the bedroom and saw a safe on the floor in the corner. Once the safe was opened, officers located 148 packets of heroin packaged together in a rectangular brick. These packets were also bundled together and bore the blue passion logo as well. When he was called in to help remove the safe, Detective Todd Edwards located an additional rubber-banded bundle of nine wax paper packages of heroin behind the safe. Although he did not examine every packet in the bundle, Edwards noticed that the top packet was stamped in blue ink with the passion logo. One of the officers present found syringes.
At the close of the Commonwealth's case, defense counsel moved for a required finding of not guilty. The judge denied the motion and, after further argument in closing, found the defendant guilty of possessing heroin with the intent to distribute.
The defendant did not call any witnesses or introduce any evidence outside of cross-examination of the Commonwealth witnesses.
Discussion. 1. Improper opinion testimony. The defendant claims error in the admission of the opinion testimony of Westfield police Sergeant Steve Dickinson, an experienced narcotics investigator who was also present for the warrant execution, that the heroin located in and behind the safe was for sale as opposed to personal use and that the cardboard recovered from the defendant's bedroom was a ledger of the kind maintained by dealers to track the amounts of money owed by different individuals.
The Commonwealth contends that Dickinson was not called to testify as a percipient witness. We need not make such a determination as the defendant's challenge fails even under the stricter standards to which percipient experts are held.
He specifically opined that where heroin was being locked up in a safe to protect it from theft, the nine bags that were located behind the safe were likely misplaced after having once been taken out of the safe for sale. At this point an objection was sustained to Dickinson's comment that heroin addicts would know exactly where their bags of drugs are located.
Because the defendant did not object to this testimony at trial, we review only to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). We conclude that any error did not materially influence the finding.
An expert's opinion within the domain of his professional knowledge may touch on the ultimate issue before the jury, but the expert may not "offer an opinion as to the defendant's innocence or guilt." Commonwealth v. Woods, 419 Mass. 366, 375 (1995). For that reason, opinion testimony from an expert who is also a percipient witness should be confined "to the explanation of specific unusual or cryptic conduct, without stating, in any form, whether such conduct amounts to a criminal offense." Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581 (1998).
Here, to the extent that the defendant argued below and maintains on appeal that he was not connected to the bedroom in question and so, by extension, was not tied to any heroin or drug ledger found there, we could conclude that Dickinson's testimony was not a comment on the defendant's guilt but only on the guilt of the person to whom the heroin and ledger belonged. See Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 907 (1999) (no substantial risk of miscarriage of justice where expert did not comment directly on defendant's activity but only more generally on meaning of quantity of cocaine in question). Dickinson does not appear to have observed the defendant engaging in any conduct during the warrant execution and so did not opine on whether any observed conduct amounted to a criminal offense.
However, where, as discussed below, the fact-finding trial judge saw no dispute that the bedroom in question belonged to the defendant, we will give the defendant the benefit of assuming that Dickinson's testimony here "exceeded the bounds of admissible expert testimony," Commonwealth v. Rivera, 425 Mass. 633, 645 (1997), because, "[w]here a specified intent is an element of the crime, a witness's opinion as to what the defendant intended is improper." Commonwealth v. Santiago, 41 Mass. App. Ct. 916, 917 (1996).
"Whether a certain quantity of drugs is consistent with personal use or with distribution is a matter not within the common experience of [fact finders]." Commonwealth v. Wilson, 441 Mass. 390, 401 (2004). Therefore, the use of narcotics officers as experts in drug cases has been "consistently upheld." Ibid. However, the well-established limit of expert testimony on the intent to distribute is an opinion "that certain pieces of evidence under consideration [are] consistent with distribution" (emphasis added). Commonwealth v. Sepheus, 468 Mass. 160, 169 (2014).
It would have been preferable for Dickinson to have utilized the "talismanic 'consistent with' locution." Tanner, 45 Mass. App. Ct. at 580. However, for the most part, Dickinson's testimony drew on his vast experience in narcotics investigations, including upwards of fifty undercover heroin purchases, to clarify matters likely outside of the common experience of the fact finder, such as typical heroin consumption rates of active users, the quantities and packaging in which heroin is typically offered for sale, and the purpose and appearance of a drug ledger. See id. at 581 (propriety of expert testimony should focus on whether it is explanatory and helpful in interpreting evidence outside of common experience). Thus, here, as in Woods, 419 Mass. at 376, we note that "the improper testimony went only slightly beyond the opinions offered which were admissible."
However, the Tanner court also observed that "the determination whether evidence is within the proper scope of opinion testimony should not turn exclusively on the precise locution used. . . . [T]he mere use of the 'consistent with' formulation should not amount to a sure safe harbor for prosecutors." Tanner, 45 Mass. App. Ct. at 581.
In addition, and as discussed more fully below, while certain aspects of the evidence benefited from the illuminating insight of expert opinion, the unadorned evidence of intent was fairly strong given the sheer number of heroin packets recovered. See Tanner, 45 Mass. App. Ct. at 580.
The unobjected-to opinion testimony here does not require reversal because we do not "have 'a serious doubt whether the result of the trial might have been different had the error not been made,'" Randolph, 438 Mass. at 297, quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002), that is, had Dickinson's opinions been couched for the judge in less conclusory terms. Furthermore, it is significant that this case was tried before a judge without a jury. There is less risk of prejudice when opinions in the form used by Dickinson are made before a judge "because judges in jury-waived trials are presumed to know and correctly apply the law," Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005), and we "assume that the trial judge correctly instructed h[er]self on the law," Commonwealth v. Healy, 452 Mass. 510, 514 (2008) (quotation omitted), including the law regarding expert testimony.
2. Sufficiency of the evidence. We are also satisfied that the admissible evidence, together with the reasonable inferences therefrom, when viewed in the light most favorable to the Commonwealth, was sufficient to persuade a rational fact finder beyond a reasonable doubt that the defendant actually and constructively possessed heroin with the intent to distribute it. Latimore, 378 Mass. at 676-677.
a. Constructive possession. The defendant contends that the judge erred in stating that there had been no dispute at trial that the bedroom containing the safe and the cardboard ledger belonged to the defendant. In support of this contention, the defendant notes that cross-examination of one of the Commonwealth's witnesses highlighted the absence of any letters or other identifying documents.
However, an examination of the relevant portion of the transcript establishes that trial counsel's questions about identifying letters were directed specifically at the contents of the safe and the area of the closet immediately behind it and not the bedroom more generally. While this was clearly an attempt to introduce doubt about the ownership of the heroin found in and around the safe, it did not -- as the judge correctly observed in delivering her finding -- seek to dispute ownership of the bedroom more broadly.
Not only was there no actual dispute from the defense on this point, the judge had nonconclusory, affirmative evidence from which she could conclude that this was the defendant's bedroom. Grady explained that he knew the defendant from before this search warrant execution and was "very familiar" with him. Freeman also testified that he was familiar with the defendant prior to November 30, 2012. Grady testified that he knew "the front room closest to Connor Ave" to be "[the defendant's] bedroom." This testimony did not draw any objection or prompt any cross-examination as to the foundation of Grady's knowledge. Instead, on cross-examination the defendant essentially established Grady's basis of knowledge by eliciting that Grady had been in the defendant's apartment "numerous times" before. In addition, Dickinson testified that the police also searched the defendant's mother's bedroom and the defendant's brother's bedroom, further establishing a basis from which the judge could infer that the officers were familiar with the living arrangements within the apartment.
This was therefore not a case like Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 558 (1991), where the evidence was insufficient to connect the defendant to a bedroom in which narcotics were found. Here, the front bedroom did in fact belong to the defendant and, unlike Rivera, no evidence pointed to its use by anyone else. For similar reasons, Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 506 (1998), is not on point here.
Thus, viewing the testimony of the officers, three of whom identified the bedroom in question as belonging to the defendant, and the inferences to be drawn therefrom, in the light most favorable to the Commonwealth, a rational fact finder could properly infer that the heroin and ledger were found in the defendant's bedroom.
Where the safe containing the 148 packets of heroin, and the nine loose packets behind it, were located in a closet in the defendant's bedroom, it was reasonable for the judge to infer that the defendant had sufficient "knowledge coupled with the ability and intention to exercise dominion and control" to establish "constructive possession," which "may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989) (quotations omitted). See Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 613 (1976) (recovery of heroin in generally inaccessible location in defendant's apartment supports inference that defendant placed it there or at least knew of its existence).
This conclusion is based on more than the defendant's mere presence. "A defendant's residential status at a premises is a relevant inculpatory factor to be considered in determining whether he can be regarded as being in constructive possession of contraband found on the premises, since it indicates more than mere presence." Clarke, 44 Mass. App. Ct. at 505 (quotation omitted). Nor was the Commonwealth required to definitively exclude the possibility of access by others in order to overcome the directed verdict motion. See Nichols, 4 Mass. App. Ct. at 612-614.
Here there was additional incriminating evidence linking the defendant to the heroin in the bedroom closet in that the packaging of the heroin packets in the closet was consistent with the packaging of the drugs found on the defendant's person and extra rubber bands of the kind used to bundle the latter were located in the room. In addition, a fact finder can reasonably infer an individual's knowledge of the existence of a drug operation and drugs based on the presence of an apparent drug ledger on top of a dresser in his bedroom. See Commonwealth v. Pratt, 407 Mass. 647, 652-653 (1990); Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 541 (2012).
b. Possession with intent. The defendant next argues that even considering the heroin in the safe, he is still entitled to a not guilty finding because the total amount of heroin recovered is consistent with the personal use of three heroin addicts living together and therefore tends to equally sustain the inconsistent propositions of personal use and possession with intent to distribute. He relies on the unhealthy appearance of his mother and brother and some of the testimony of Commonwealth witnesses to support the inference that they, as well as he, are heroin users. He further points to the recovery of syringes and the absence of scales, rubber stamps, extra plastic bags, and cutting agents.
Even if the defendant's mother and brother were also active heroin users at the time, the defendant's argument still fails. Although Dickinson acknowledged that the total amount of heroin would not be a lot when divided amongst three users, it would still exceed the up to twenty bags per day that Dickinson opined would be consumed by a "full blown heroin addict." In fact, 211 packets would have been a three and one-half day supply for three full blown addicts, and Dickinson opined that users rarely keep more than a one-day supply on hand. Dickinson also testified that he had never seen a user buy heroin in bulk to save it for later use. Cf. Commonwealth v. Baltrop, 2 Mass. App. Ct. 819, 820 (1974) (evidence that defendant, a heroin user, possessed 375 bags of heroin warranted inference of intent to sell).
Dickinson also testified that using and selling heroin are not mutually exclusive and that it is common in Westfield for someone who distributes heroin to also be a user. Thus the presence of syringes -- and some personal use -- is not necessarily inconsistent with a finding of possession with intent to distribute, especially when considering that the supply on the defendant's person and in his bedroom would have been enough for ten days for one active user and for three and one-half days for three active users.
More importantly, however, the defendant's shared stash theory ignores the fact that all the heroin was recovered from one person and one bedroom. This raises the inference that, if indeed all three members of the household were actively using, the defendant would be the sole distribution source. If the defendant was holding for more than his own use, he was doing so with the intent to distribute. See Commonwealth v. Velasquez, 57 Mass. App. Ct. 922, 923 (2003).
In sum, we are satisfied that, viewed in the light most favorable to the Commonwealth, there was sufficient evidence from which a rational trier of fact could infer the defendant's intent to distribute. In total, actually and constructively, the defendant possessed 211 packets of heroin. "Possession of a large quantity of an illicit narcotic raises an inference of intent to distribute." Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984). Nor does the large quantity of heroin here stand alone, as the defendant maintained both a supply on his person along with more than $200 in cash when outside his home and a larger inventory in identical "distinct packaging," ibid., in his home. The supply recovered from the defendant's person would have lasted an active user nearly three days and was rubber-banded in the kind of ten-pack "bundles" that Dickinson testified serve as a unit of measurement for pricing heroin in the narcotics trade. The defendant also possessed a supply of rubber bands consistent with those used to group his packets into retail "bundles." See Commonwealth v. Clermy, 421 Mass. 325, 331 (1995). The additional presence in the defendant's bedroom of an item consistent in appearance to a drug ledger is also significant. See Pratt, 407 Mass. at 653; Caraballo, 81 Mass. App. Ct. at 538, 541.
Judgment affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 11, 2016.