Opinion
14-P-1842
02-19-2016
COMMONWEALTH v. TONY VANCE.
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
On February 4, 2013, the Boston police executed a search warrant for an apartment at 31 Radcliffe Street in the Dorchester section of Boston, and they discovered approximately eight pounds of marijuana in a bedroom there. Based on that discovery, the Commonwealth charged the defendant with possession of a class D substance with intent to distribute, as a subsequent offense. The defendant moved to suppress the marijuana and other evidence found in the apartment and on his person, and a Boston Municipal Court judge denied those motions in pertinent part. Following bench trials before a different judge, the defendant was convicted of the drug charges. On appeal, the defendant challenges the denial of his motions to suppress, the sufficiency of the evidence that the defendant possessed the marijuana, and the admission of certain evidence at trial. We uphold the denial of the motions to suppress and reject the defendant's argument that the evidence was insufficient. However, we conclude that the defendant is entitled to a new trial based on one of his evidentiary claims.
The defendant was also charged with, but found not guilty of, operating a motor vehicle after his license had been suspended.
The judge allowed suppression of a computer seized during the search and that ruling is not at issue in this appeal.
Motions to suppress. As noted, the police conducted their search pursuant to a search warrant. Focusing on alleged deficiencies in the police's reliance on information provided by a confidential informant (CI), the defendant argues that the search warrant was invalid. He also argues that the search of the defendant's person was outside the scope of the warrant. Neither argument requires extended discussion.
The CI participated in two controlled buys from the apartment and the police corroborated those buys with firsthand observations of the apartment building. "Without question, a properly monitored controlled purchase of illegal drugs provides sufficient corroborating evidence to overcome any shortfalls in meeting the constitutional reliability requirements imposed on confidential informants." Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787 (2009). See Commonwealth v. Luna, 410 Mass. 131, 134 (1991) (controlled buys alone supported probable cause to search a house). In addition, the police corroborated the CI's encounters by their own surveillance of the apartment building; on two occasions they observed the defendant leave the apartment to engage in apparent drug sales. Under these circumstances, the fact that the police had not used the CI's services in several years is immaterial.
Here, the controlled buys were clearly "properly monitored." The police twice pat frisked the CI before he bought drugs with money issued from the drug control unit; they twice watched him enter and exit the apartment building; he twice returned with a bag of marijuana.
In Figueroa, the Supreme Judicial Court denied further appellate review but remanded the case for reconsideration in light of new case law regarding the introduction of drug certificates at trial. 457 Mass. 1106 (2010). On remand, we concluded that the defendant was entitled to a new trial based on those issues, while reaffirming that "there was no error in any other respect." 77 Mass. App. Ct. 1117 (2010).
The defendant also argues that the CI's information is deficient because he "state[d] that [the defendant] resided at 31 Radcliffe Street" when a record at that time reflected another residence. However, the affidavit for the warrant does not actually state that the CI told police that 31 Radcliffe Street is the defendant's home. When shown a photo of the defendant, the CI positively identified the defendant as the person who had sold him marijuana "from 31 Radcliffe St. apartment 1." In the end, for purposes of the warrant's validity, whether the defendant actually resided at that address is beside the point. There was more than enough information linking the defendant to that apartment.
In contesting the search of his person, the defendant relies on the fact that the police waited until he had left the apartment before they stopped him in his car a short distance away. The defendant was searched after he was returned to the apartment (that he had just left), and the search warrant specifically provided for a search of the defendant's person. This undercuts the defendant's characterization of the search of his person as outside the scope of the search warrant for the apartment. In any event, at the point the police stopped the defendant's car, they had probable cause to arrest and search him incident to the arrest.
The defendant claims that he was stopped approximately one-half mile away, although the testimony suggests it was a shorter distance. The precise distance is immaterial.
This fact distinguishes this case from Commonwealth v. Charros, 443 Mass. 752 (2005), where the Supreme Judicial Court held that detaining and searching the defendants in their car, a mile away from the place to be searched, exceeded the scope of the warrant. Id. at 761-764. However, even though the Charros officers lacked a warrant to search the defendants' persons, the court still upheld the denial of one of the defendant's motions to suppress because the police had probable cause to search and detain him (primarily due to a controlled buy). Id. at 764-765.
Relevant trial evidence. As an initial matter, we note that there was overwhelming evidence that whoever possessed the marijuana did so with the intent to distribute it. The defendant targets the sufficiency only as to the evidence that he constructively possessed the marijuana, claiming that the Commonwealth's evidence did not support a finding of his "knowledge of the contraband and the ability and intent to exercise dominion and control over it" beyond a reasonable doubt. Commonwealth v. Ortega, 441 Mass. 170, 174 (2004). As both sides acknowledged at trial, the case turned on the extent to which there was proof that tied the defendant to the apartment and, more specifically, to the bedroom in which the marijuana was found. No documentary proof was entered in evidence (such as leases, utility bills, or registry of motor vehicle records) that listed the apartment as the address at which the defendant lived. Nor did the Commonwealth present at trial any eyewitness observations of the defendant ever being inside the apartment. There was evidence that on one occasion (the date the search warrant was executed), the defendant was observed leaving the exterior door of the building that housed the apartment (and one other).
In addition to the sheer amount of the marijuana found in bedroom 1, the police discovered there standard instruments of distribution, such as a digital scale and four boxes of sandwich bags, as well as almost $25,000 in cash. See Commonwealth v. Sepheus, 468 Mass. 160, 164-168 (2014) (citing factors commonly used to demonstrate intent to distribute).
The Commonwealth offered one such record, a restraining order against the defendant found in the relevant bedroom, but the judge excluded it.
When the police knocked on the apartment door to execute the search warrant, they were greeted by Angela Smith. There were two other people also inside the apartment, Caroline Bailey and an unidentified male. The apartment was described as "six rooms or better," but otherwise little information was provided about it. Thus, for example, the number of bedrooms in the apartment was never established. Instead, the trial testimony, as well as the police actions during the search, focused on the one bedroom in which the marijuana was found, referred to at trial as "bedroom 1."
When the police entered bedroom 1, Bailey was inside of it. Both male and female clothing were found in the bedroom, and the Commonwealth's theory of the case was that Bailey and the defendant shared the bedroom. To support this theory, the Commonwealth sought to show that the defendant and Bailey were romantically involved. As discussed in detail below, in the face of the defendant's repeated and strenuous objections, the judge allowed in evidence that the police "learned" that Bailey was the defendant's girlfriend and that she stayed in bedroom 1 with him.
There were two other types of evidence linking the defendant to bedroom 1. First, the police found somewhere in the bedroom a collage-like display made up of a poem and various photographs, including some of the defendant. Second, two health cards bearing the defendant's name were also found there. One additional curious fact bears noting: included inside one of the bags of marijuana found in bedroom 1 was a piece of paper (apparently a post-it note) bearing the name of Angela Smith. As noted, Smith answered the door when the police executed the warrant, and a police witness testified to his understanding that she lived in the apartment.
None of the Commonwealth's witnesses was able to testify where in the bedroom the collage and health cards were found.
When the police searched the defendant's person, they found two cellular telephones and $904 in cash.
Sufficiency. For purposes of addressing the sufficiency of the Commonwealth's evidence as a whole, we consider all the evidence that was admitted, regardless whether its admission was proper. See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), citing Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). Although the question is close, we view the evidence linking the defendant to bedroom 1 as sufficient to support the judge's denial of the defendant's motions for a required finding. Based on the testimony that the defendant was Bailey's boyfriend and that Bailey's boyfriend stayed with her in bedroom 1 (corroborated by the discovery of his health cards there), the judge could have concluded that the defendant stayed in the room where eight pounds of marijuana were found during a search conducted directly after he left the apartment. Given the volume of marijuana found in the bedroom and the presence there of the drug distribution paraphernalia, the judge reasonably could have inferred the defendant's knowledge of the distribution operations there. See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225-226 (1993) (where we concluded that the defendant must have been aware of the drug distribution operations in her apartment "[i]f she had eyes"). Of course, knowledge of, and proximity to, contraband does not without more constitute proof of constructive possession. See Commonwealth v. Boria, 440 Mass. 416, 418-419 (2003) ("Living in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is not enough to prove constructive possession."), citing Brown, supra at 225-227, and Commonwealth v. Booker, 31 Mass. App. Ct. 435, 437-438 (1991), and cases cited. "In order for there to be sufficient evidence to prove constructive possession, 'presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.'" Boria, supra at 419, quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989).
In Brown, we ultimately concluded that the evidence of constructive possession was insufficient, emphasizing that although personal effects of the defendant were found in one bedroom of the multi-bedroom apartment, this was not the room in which the drugs and distribution paraphernalia were found. See 34 Mass. App. Ct. at 226.
When the defendant was stopped directly after leaving the apartment, a large amount of cash and two cell phones were found on his person. Although such evidence may be innocent by itself, the case law recognizes that it can be taken as an incriminatory factor when viewed in context. See, e.g., Booker, supra at 438 (emphasizing, in finding the evidence of constructive possession insufficient, that the defendant was not found to be carrying suspect drug paraphernalia or large amounts of cash). Based on the evidence as a whole, we view it as sufficient to support a finding that the defendant constructively possessed the marijuana found in bedroom 1.
Evidentiary issues. The defendant argues that the judge improperly admitted the evidence that the defendant and Bailey had a romantic relationship. Under the particular circumstances presented, we agree. Because the details are important, we have set forth the entire key portion of the trial transcript in an appendix to this memorandum and order. Several points are evident from this excerpt. To the extent that the witness directly tried to relay that Bailey told him that the defendant was her boyfriend, the judge properly struck such statements as hearsay. Nevertheless, the judge allowed the witness to state that he "learned" of the relationship even though the only apparent basis of the witness's knowledge of that point was Bailey's out-of-court statements to him., We agree with the defendant that the judge thereby improperly allowed the admission of hearsay through the backdoor. See Commonwealth v. Greene, 461 Mass. 1011, 1011 (2012) (officer's testimony that he "learned" information from someone is inadmissible hearsay); see also United States v. Maher, 454 F.3d 13, 23 (1st Cir. 2006) ("warning" prosecutors against "backdoor attempts" to admit statements from declarants who do not testify). Contrast Commonwealth v. Cordle, 404 Mass. 733, 743-744 (1989) (officer testifying to actions taken in response to inadmissible hearsay is not hearsay "through the backdoor").
The particular manner in which the witness responded to the questions indicates that his knowledge of the relationship was in fact based on what Bailey told him. Even when attempting to phrase his answer in conformity with the judge's ruling, the officer first replied, "I learned that she was -- She stated to me that she was the girlfriend of Tony Vance." The Commonwealth makes no claim to the contrary.
Curiously, when the prosecutor on redirect again asked the witness who Bailey's boyfriend was, the judge sustained the defendant's objection that the question "calls for testimony which has the basis of hearsay."
It can be argued that, strictly speaking, the witness's statement of what he "learned" did not contain any out of court statements and that defense counsel more properly should have lodged an objection based on lack of foundation. However, it was abundantly clear from the colloquy that defense counsel was making the point that the only potential basis underlying what the witness had "learned" was inadmissible hearsay.
Before turning to the question of prejudice, we must address whether the defendant's relationship with Bailey independently was established by an answer that Sergeant Detective Barker gave during cross-examination. Defense counsel asked whether certain items found in the bedroom -- such as a pocketbook and a fur-lined coat -- "appear[ed] to be male items." The witness responded that "[t]hose are the items of the young lady that was staying [in] that room with her boyfriend." After the defendant moved to strike the answer as nonresponsive, the judge overruled the objection on the ground that "[y]ou asked the question." This was error. The witness's answer was unresponsive at least to the extent that he volunteered his view that the boyfriend of the owner of the woman's clothes lived in the bedroom. See Commonwealth v. Magraw, 426 Mass. 589, 596-597 (1998) (where witness's reply to counsel's question was nonresponsive, defendant could not have "open[ed] the door" to hearsay line of questioning). In any event, the answer itself did not establish who that boyfriend was.
The defendant preserved his claim that the relationship testimony was improperly admitted; therefore, we review for prejudicial error. Because the relationship played an important role in the Commonwealth's efforts to link the defendant to bedroom 1, and because the Commonwealth's proof of such a link apart from the relationship evidence was far from overwhelming, the admission of this evidence caused prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983)("An error is nonprejudicial only '[i]f . . . the conviction is sure that the error did not influence the jury, or had but very slight effect'"). Where, as here, "one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." Ibid. The defendant is therefore entitled to a new trial.
The defendant makes two additional claims. First, he argues that the two officers who testified about what occurred during the search were not in a position to provide such testimony and that these witnesses instead were in effect passing along the eyewitness observations of officers who were not called to testify, thus depriving the defendant of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. Second, the defendant claims that a police officer who testified as a nonpercipient witness erroneously was allowed to offer his opinion regarding the defendant's guilt (a claim that is complicated by the fact that the judge allowed the witness to offer his opinions even while declining to qualify him as an expert). Because we find the defendant is entitled to a new trial on other grounds, we need not reach these additional issues.
Judgment reversed.
Verdict set aside.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.