Opinion
No. 14–P–1750.
06-27-2016
COMMONWEALTH v. Omar RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of possession of heroin with intent to distribute, subsequent offense, in violation of G.L. c. 94C, § 32(a) & (b). On appeal, he challenges the denial of his motion to dismiss on the grounds of collateral estoppel; the admission of testimony from an expert witness that he claims expressed an opinion on the ultimate issue; several aspects of the prosecutor's closing argument; and the sufficiency of the evidence as to intent to distribute. We affirm.
Background. We recount the facts the jury could have found in the light most favorable to the Commonwealth.
On April 26, 2012, at around 8 A.M., State Trooper Francis Walls and Sergeant Michael McCarthy were waiting outside 21 Sawtell Avenue in Brockton. They observed a gray Ford SUV with Maryland license plates driving north along the road. The officers determined that this car was a rental car. For reasons not explained to the jury, they pulled the car over and arrested the defendant, who was the driver and only occupant. During a search of the defendant, Trooper Walls found a plastic bag containing fourteen smaller twist bags of heroin in a rear pocket of his pants and $1,155 in the left front pocket. The heroin weighed approximately five grams.
According to the drug analysis certificate, the lab weighed the contents of two of the fourteen bags and then used that weight to infer a net weight of 5.07 grams. The defendant does not challenge this procedure. We will describe the weight as five grams throughout this memorandum and order.
Thomas Keating, a Brockton police officer, testified as a nonpercipient expert witness on how drugs, and heroin in particular, are bought and sold. Users typically pay for heroin in cash, but it would be unusual for a user to possess fourteen bags of heroin at the same time or a large amount of cash. Users usually have some sort of drug use paraphernalia on their persons, such as needles, straws, or rolled-up bills. They tend to start out by snorting heroin and switch to injecting it when they “get to a high extreme of the addiction.” Dealers often sell individually wrapped half grams of heroin for $40 to $50. The fourteen small bags introduced into evidence appeared to contain half grams of heroin, worth roughly $50 each or $700 all together. Dealers typically buy larger amounts of heroin, such as a “finger” weighing ten grams, which they break down into smaller bags for sale. Dealers typically rent cars or use other schemes to “make it harder for police to track them down.” Finally, while dealers generally possess scales, crib sheets, and additional packaging, they leave those items at their homes, where they measure and package the product.
The defendant introduced as evidence his April, 2012, medication administration record from the Plymouth County House of Correction and called Dr. William Stuart, an emergency room physician, to testify in his defense. The medical record indicated that the defendant had received a prescription for clonidine while he was incarcerated in April, 2012. Dr. Stuart stated that clonidine is prescribed for both hypertension and narcotic withdrawal. He also testified that people who have withdrawal are usually daily users, that daily users' tolerance tends to increase, and that daily users can use four to ten or more 0.1 gram bags of heroin per day. On cross-examination, he made a “guess” that a 0.1 gram bag sells for $50.
Discussion. 1. Collateral estoppel. The defendant argues that the judge erred by denying his motion to dismiss on the basis of collateral estoppel. Before addressing this argument, we must set forth additional facts that were not before the jury.
a. Additional background. On the morning of April 26, 2012, Trooper Walls had a search warrant that authorized him to search for controlled substances and related property both at 21 Sawtell Avenue and on the person of the defendant. At some point, Trooper Walls did a Registry of Motor Vehicles check on the defendant and learned that his license was suspended. After the defendant pulled over in front of 21 Sawtell Avenue, Trooper Walls pulled behind his car and another police car pulled in front.
When the defendant exited his vehicle, Trooper Walls explained that the police were there to execute a search warrant and placed him in handcuffs. It is not clear from Trooper Walls's grand jury testimony whether he immediately informed the defendant that he was under arrest for driving with a suspended license. The police searched the defendant, found his keys, and used those keys to enter the rear door of 21 Sawtell Avenue and the defendant's individual apartment. Inside the defendant's apartment, the police found, among other things, eleven and one-half fingers of heroin, scales and bags, an unloaded but operable .45 caliber revolver, and a magazine with nine rounds. All the heroin together weighed over one hundred grams. The search warrant return lists all the heroin seized, including both the five grams seized from the defendant's pocket and the 11.5 fingers seized from his bedroom.
This discrepancy in Trooper Walls's testimony before the first grand jury and the second grand jury ultimately does not affect our legal conclusions, which are based entirely on our reading of the defendant's motion to suppress and the judge's suppression order.
On June 15, 2012, the first grand jury issued indictments charging the defendant with (1) trafficking in heroin by possessing with intent to distribute heroin with a net weight between one hundred grams and two hundred grams, in violation of G.L. c. 94C, § 32E(c)(3) ; (2) possessing a firearm without a firearm identification card, in violation of G.L. c. 269, § 10(a) ; (3) possessing ammunition without a firearm identification card, in violation of G.L. c. 269, § 10(h) ; (4) defacing the serial number of a firearm, in violation of G.L. c. 269, § 11C ; and (5) operating a motor vehicle on a public way with a suspended license, in violation of G.L. c. 90, § 23. The defendant filed a motion to suppress on March 12, 2013, and a memorandum in support on March 18, 2013, on the grounds that the search warrant affidavit failed to establish probable cause. The judge held a suppression hearing on April 12, 2013, and granted the motion on July 19, 2013. The Commonwealth entered a nolle prosequi on the first four indictments on September 12, 2013. The defendant pleaded guilty to operating with a suspended license on May 14, 2014.
On May 10, 2013, while the motion to suppress was pending, a second grand jury issued an indictment for possession of heroin with intent to distribute, in violation of G.L. c. 94C, § 32. As the discussion of the trial evidence above indicates, this indictment was based on the defendant's possession of the five grams of heroin found on his person. The defendant was arraigned on July 29, 2013, eleven days after the judge granted the motion to suppress in the first proceeding. The defendant filed a motion to dismiss on the basis of collateral estoppel on September 27, 2013. The same judge who presided over the first proceeding denied the motion on February 7, 2014.
b. Discussion. The defendant argues that the suppression order in the first proceeding covered the drugs seized from his person, and that therefore the Commonwealth's failure to appeal the suppression order estops it from introducing the suppressed evidence in the second proceeding. We conclude that collateral estoppel does not apply.
Collateral estoppel “precludes relitigation of issues determined in prior actions between the parties.” Sena v. Commonwealth, 417 Mass. 250, 260 (1994). This court has adopted the following requirements for determining whether collateral estoppel applies: “(1) the issues in the two proceedings must be the same; (2) the [party estopped] must have had sufficient incentive to have vigorously and thoroughly litigated the issue in the previous proceeding; (3) the [party] estopped must have been a party to the previous litigation; (4) the applicable law must be identical in both proceedings; and (5) the first proceeding must have resulted in a final judgment on the merits such that the [party estopped] was provided with sufficient incentive and an opportunity to appeal.” Commonwealth v. Ringuette, 60 Mass.App.Ct. 351, 357, S.C., 443 Mass. 1003 (2004).
Thus, under the doctrine of collateral estoppel, when a defendant's motion to suppress is allowed in an earlier proceeding and the Commonwealth fails to appeal, that suppression order is binding in any future prosecution of the defendant. Commonwealth v. Williams, 431 Mass. 71, 75 (2000). However, dismissal of a subsequent indictment is not required if the Commonwealth “has other evidence, independent of the evidence that had been suppressed, to prove its case against the defendant.” Id. at 77.
Whether estoppel applies is a question of law based on a determination of what precise issue was litigated in the prior proceeding. Thus, this court reviews claims of estoppel de novo. See, e.g., Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (conducting de novo review of whether estoppel applies); Commonwealth v. Lunden, 87 Mass.App.Ct. 823, 825–826 (2015) (same).
After reviewing the documents in the record relating to the suppression order in the first proceeding, we conclude that collateral estoppel does not require dismissal of the indictment in this case. Although the search warrant authorized a search of the defendant's person and the heroin found on his person was listed on the search warrant return, the motion to suppress, the memorandum in support, and the suppression order did not seek or order suppression of everything seized pursuant to the search warrant. The motion to suppress requests suppression of “all evidence seized from 21 Sawtell Avenue, Brockton, Massachusetts” (emphasis added). The arguments in the memorandum in support of the motion only addressed the evidence seized from the defendant's building. The decision on the motion to suppress thus only rules that the search warrant affidavit failed to establish probable cause to search the defendant's building. Accordingly, the judge did not err in concluding that collateral estoppel did not bar prosecution of the defendant based on the drugs found on his person.
2. Expert testimony. The defendant argues that Officer Keating's expert testimony impermissibly contained an opinion as to the ultimate issue. We disagree.
“Otherwise qualified expert testimony is admissible if, ‘in the judge's discretion, the subject [of such testimony] is not within the common knowledge or common experience’ of the trier of fact, and the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence.” Commonwealth v. Miranda, 441 Mass. 783, 792–793 (2004), quoting from Commonwealth v. Francis, 390 Mass. 89, 98 (1983). “An element of the Commonwealth's case in proving a charge of drug possession with intent to distribute is whether the subject drugs, connected to a given defendant, were for personal use or for distribution. This is not a matter within the common experience of jurors.” Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 457 (2006). “Opinion evidence elicited from ... a qualified expert properly informs the jury of the significance of evidence generally, and does not state an opinion as to the ultimate issue of intent, which must be resolved by the jury....” Ibid. However, “[q]uestions grounded in previously admitted evidence may be posed to an expert witness calling for an opinion within the expert's field of expertise, even if the witness's reply thereby touches on the ultimate issue of the case.” Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579 (1998).
The defendant claims that Officer Keating improperly offered an opinion as to the defendant's intent to distribute when he testified (1) about the cost of heroin; (2) about the way small amounts are packaged for distribution; (3) that a user is unlikely to possess fourteen half-gram twists; (4) that a user is unlikely to possess a large amount of cash; (5) that a user is likely to possess drug paraphernalia; and (6) that a dealer is likely to use a rental car. The defendant objected repeatedly to this testimony, and so we review it to determine whether the judge erred in admitting the testimony and, if so, whether the error was prejudicial. Commonwealth v. Woods, 419 Mass. 366, 375 (1995).
We conclude that all the challenged testimony was proper. The testimony was elicited by questions from the prosecutor that were grounded in the facts of the case, and the officer did not directly express his opinion as to the defendant's guilt.
3. Prosecutor's closing argument. The defendant raises three claims of error as to the prosecutor's closing argument. We address them in turn.
a. Vouching for the credibility of a witness. “A prosecutor ... may not vouch for the credibility of his or her witness.” Commonwealth v. Tu Trinh, 458 Mass. 776, 786 (2011). “Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
The defendant claims that the prosecutor vouched for the credibility of a witness when he stated in closing: “Detective Keating, who I would argue is a more reputable source [than Dr. Stuart,] being someone who actually does this for a living, told you it's going to be $700 worth of heroin.” The defendant objected on this ground below, and so we review to determine whether an error occurred and, if so, whether it was prejudicial. Commonwealth v. Tu Trinh, supra at 785.
We conclude that there was no error. The challenged statement was not an expression of personal belief in Officer Keating's credibility. Rather, it was an argument from the evidence about why Officer Keating's testimony as to the value of the heroin in the defendant's pocket was more credible.
b. Comment on defendant's decision not to testify. “Generally, a prosecutor ‘cannot make statements that shift the burden of proof from the Commonwealth to the defendant.’ Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Such burden shifting typically arises where a prosecutor offers direct comment on the defendant's decision not to testify, see Commonwealth v. Feroli, 407 Mass. 405, 409 (1990), quoting from Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert. denied, 446 U.S. 955 (1980), or ‘calls the jury's attention to the defendant's failure to call a witness or witnesses, or ... “to contradict testimony.” ‘ Commonwealth v. Tu Trinh, 458 Mass. [at] 787 ..., quoting Commonwealth v. Miranda, 458 Mass. 100, 117 (2010), cert. denied, 132 S.Ct. 548 (2011). In these cases ‘the prosecution is signaling to the jury that the defendant has an affirmative duty to bring forth evidence of his innocence, thereby lessening the Commonwealth's burden to prove every element of a crime.’ Commonwealth v. Tu Trinh, supra. A prosecutor, however, ‘is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case.’ Commonwealth v. Feroli, supra.” Commonwealth v. Cassidy, 470 Mass. 201, 226 (2014).
The defendant claims that the prosecutor improperly commented on the defendant's decision not to testify and thereby shifted the burden of proof when he argued: “Now, Dr. Stuart did tell you one thing. He said yeah, you know, people may come in and tell me a tall tale. They misrepresent their symptoms. What you have here is one piece of paper, one page which represents it looks like three or four days in August where he's apparently being treated for withdrawal, nothing else, just this alone. He never talked to the doctor who prescribed this medicine. He never looked at the entire medical file. You have no idea why that was prescribed to Omar Rodriguez and you have no idea what Omar Rodriguez did to get that. You have no idea if Omar Rodriguez is one of these many people telling tall tales to get a prescription to set up a defense. I argue to you, ladies and gentlemen, that's an inference you can draw that's supported by the evidence.” The defendant objected on these grounds below. Thus, we review the alleged burden-shifting for prejudicial error, Commonwealth v. Johnson, 463 Mass. 95, 112 (2012), and the alleged comment on the defendant's decision not to testify for whether it was harmless beyond a reasonable doubt, Commonwealth v. Smith, 387 Mass. 900, 909 (1983).
The defendant argues that the prosecutor's argument was improper because it suggested that the defendant had the burden to take the stand and explain the circumstances in which he received the clonidine prescription. We disagree, first, that this argument implied that the defendant should have taken the stand. The prosecutor's argument suggested two other ways that Dr. Stuart could have increased the probative value of his testimony: by “talk[ing] to the doctor who prescribed this medicine” or by “look[ing] at the entire medical file.” Second, a prosecutor may argue that the evidence in support of the defendant's version of events is inadequate or unconvincing. See Commonwealth v. Bregoli, 431 Mass. 265, 275 & n. 17 (2000) (finding no burden shifting where prosecutor argued that the “[d]efense presented a case to you, and that case, Ladies and Gentlemen, provided no explanation for [the testimony of one of the prosecution's witnesses]”); Commonwealth v. Cassidy, 470 Mass. at 225–226 (finding no burden shifting where prosecutor argued that “[t]here's not one shred of credible evidence [that] [a proposed third-party culprit] was involved in anything.... That is a smoke screen and a diversion, which is what [the defendant] is all about. There is no evidence”). In any event, even if there were an error, we conclude that it would not require reversal under the rule that an “oblique reference” to the defendant's failure to present evidence does not prejudice the defendant if the judge gives proper instructions on the burden of proof, as the judge did here. Commonwealth v. Bregoli, supra at 275–276.
c. Arguing facts not in evidence. The defendant claims that the prosecutor argued facts not in evidence. While we agree that the prosecutor's argument was improper, we conclude that the judge's curative instructions eliminated any prejudice.
“In closing argument, a prosecutor may not ‘misstate the evidence or refer to facts not in evidence.’ “ Commonwealth v. Joyner, 467 Mass. 176, 188–189 (2014), quoting from Commonwealth v. Lewis, 465 Mass. 119, 129 (2013). However, “[r]emarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Gonzalez, 465 Mass. 672, 680 (2013), quoting from Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
The prosecutor argued, “What did [Officer Keating] do? He didn't tell you anything about Omar Rodriguez. No, because he's not allowed to do that. The law doesn't allow that.” The defendant objected on the basis that the prosecutor had implied facts not in evidence, namely, that Officer Keating had information about the defendant to which he was not permitted to testify at trial. The judge sustained the objection and gave the following curative instruction: “Let me just clarify one point; Detective Keating was called to testify as someone who was not involved in this investigation. He gave an opinion as to whether or not something was consistent or inconsistent with the distribution of heroin. He's not testifying about Mr. Rodriguez. Let me also clarify, if need be, that Detective Keating does not have any independent knowledge about Mr. Rodriguez that wasn't brought to your attention. He has no knowledge whatsoever of Mr. Rodriguez.”
The prosecutor's argument did imply facts not in evidence, even if unintentionally. However, the judge's immediate, pointed curative instruction eliminated any risk of prejudice. We disagree with the defendant's characterization of this instruction as “bland,” and therefore insufficient to cure the error. Commonwealth v. McLeod, 30 Mass.App.Ct. 536, 540 (1991), quoting from Commonwealth v. Gallego, 27 Mass.App.Ct. 714, 720 (1989). Unlike the instruction in McLeod, see id. at 540–541, this instruction explicitly contradicted the improper implication of the prosecutor's closing.
4. Sufficiency of the evidence. Finally, the defendant argues that the evidence was insufficient to prove that he intended to distribute the heroin. We disagree.
The defendant moved for a required finding of not guilty as to the element of intent at the close of the Commonwealth's evidence. “In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt.... No essential element of the crime may be left to a jury's conjecture, surmise, or guesswork.” Commonwealth v. Rivera, 460 Mass. 139, 141 (2011).
The evidence supporting the intent to distribute was the quantity and value of the heroin, the quantity of money, the way the heroin was packaged, the absence of paraphernalia, the possession of a rental car, and Officer Keating's expert testimony explaining the significance of these facts. The amount of heroin found on the defendant and its packaging, five grams in fourteen bags, were not sufficient on their own to support an inference of intent to distribute. Compare Commonwealth v. Ellis, 356 Mass. 574, 578 (1970) (fifty-six bags of heroin); Commonwealth v. Pratt, 407 Mass. 647, 652–653 (1990) (forty-four bags of heroin alone may raise inference of intent to distribute). They were, however, consistent with distribution, especially given that the defendant's own expert testified that daily users tend to use around 0.4 grams to one gram of heroin per day. Likewise, the amount of money found on the defendant, $1,155, may not have been sufficient on its own to support an inference of intent, but it was enough to do so in combination with the other evidence. See Pena v. Commonwealth, 426 Mass. 1015, 1017–1018 (1998) (defendant's possession of $1,600 at time of arrest a factor in favor of sufficiency). The jury could have drawn on their common sense to conclude that $1,155 is an unusually large amount of cash for a person to walk around with. Contrast Commonwealth v. Sepheus, 468 Mass. 160, 166 (2014) (defendant's possession of $312 in cash could not support inference of intent where there was no evidence defendant was unemployed and “[i]t is not unusual for law-abiding persons to carry such an amount on their person”). The absence of paraphernalia also supports at least to some extent the inference of intent. Id. at 168. Officer Keating's expert testimony could be taken to establish that a rental car is an “accoutrement[ ] of the drug trade.” Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 327 (2010). Thus, although law-abiding people drive rental cars for any number of reasons, in context, the car also supports to some degree the inference of intent.
Taken together, all the evidence, considered in light of the expert testimony, was sufficient for a reasonable jury to find beyond a reasonable doubt that the defendant possessed the heroin in his pocket with the intent to distribute it.
Conclusion. The defendant's conviction is affirmed.
Judgment affirmed.