Opinion
No. 12–P–424.
2013-04-5
COMMONWEALTH v. Jesse KASENGE.
According to the defendant, the admission of this testimony was reversible error. We disagree. Commonwealth v. Diaz, 453 Mass. 266, 274 (2009), quoting from Commonwealth v. Waite, 422 Mass. 792, 801 n. 9 (1996).
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction on two counts of distribution of cocaine (second offense) and one count of distribution within a school zone. The defendant claims, inter alia, that his right to confrontation was violated when the Commonwealth elicited testimony from Detective Afienko regarding a nontestifying, confidential informant's tip. Seeing no error, we affirm.
Confrontation. Prior to Detective Afienko's testimony, the judge sustained the defendant's preemptive objection to any testimony about an ongoing investigation of the defendant, including information from a confidential informant. The defendant claims that the Commonwealth violated this ruling, thus infringing on the defendant's constitutional rights when the testimony resumed.
Prosecutor: “In preparation for this assignment, what did you do at your office?”
Detective Afienko: “Well, at this point we were aware that we were going to be meeting a target by the name of Jay who drives a 2006—“
Defense counsel: “Your honor, I object.”
The Court: “Overruled.”
Detective Afienko: “—who drives a 2006 black Dodge Charger to buy crack cocaine off of this particular individual.”
According to the defendant, the admission of this testimony was reversible error. We disagree.
“We consider first whether it was error for the judge to permit [this testimony] and, if so, whether the error was ‘harmless beyond a reasonable doubt.’ “ Commonwealth v. Rosario, 430 Mass. 505, 507 (1999) (citation omitted). Under Commonwealth v. Rosario, a court may allow “the use of carefully circumscribed extrajudicial statements in criminal trials to explain the state of police knowledge.” Id. at 508. Such testimony prevents the jury from speculating that the investigating officer just “happened upon the scene.” Ibid., quoting from Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). Still, these statements should come in evidence “only where (1) the evidence is presented by a police officer on the basis of his own personal knowledge; (2) the testimony is strictly limited to ‘facts required to establish the officer's state of knowledge’; and (3) the question of police knowledge is relevant and material to some live issue before the fact finder.” Commonwealth v. Tanner, 66 Mass.App.Ct. 432, 439 (2006) (citation omitted).
In Rosario, the Supreme Judicial Court concluded that the admission of a witness's detailed conversation with the murder victim was error because it had no basis of explaining police conduct. Rosario, supra at 510–511. Similarly, the Appeals Court concluded in Tanner that police testimony directly inculpated the defendant and was not necessary for establishing the state of police knowledge. Tanner, supra at 438–440. In Tanner, a police officer testified on redirect that he asked a detained individual where he received the drugs, and that after asking that question, he proceeded to the defendant's location and immediately arrested him. Id. at 437–438. The statements here, however, are wholly distinguishable from those in Rosario and Tanner.
Both Rosario and Tanner recognize that “police, in appropriate circumstances, may state that actions were taken upon ‘information received,’ or ‘as a consequence of a conversation’ with a particular witness.” Tanner, supra at 438–439, quoting from Commonwealth v. Perez, 27 Mass.App.Ct. 550, 555 (1989). See Rosario, supra at 510. The statements in this case were nothing more than explanatory statements that merely informed the jury why the police were taking certain actions. “Because such explanatory statements do not repeat the substance of out-of-court conversations, they pose no hearsay (and, by extension, no confrontation) issues.” Tanner, supra at 439.
Even if we were to assume that the statements were improperly admitted, such error is harmless beyond a reasonable doubt.
“In determining whether an error is harmless we weigh the prejudicial effect of the improper evidence by considering such factors as ‘(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions.’ “
Commonwealth v. Diaz, 453 Mass. 266, 274 (2009), quoting from Commonwealth v. Waite, 422 Mass. 792, 801 n. 9 (1996).
Considering these factors, and their cumulative effect, the error would be harmless. First, the defendant is challenging a brief, one-time statement by Detective Afienko. Second, prior to this testimony, the defendant had already questioned Detective Connerney about “Jay” being the “target” of an investigation. Finally, the challenged statements were merely cumulative of other properly admitted evidences. See Commonwealth v. Sinnott, 399 Mass. 863, 873 (1987). Any potential error would be harmless beyond a reasonable doubt.
For example, Detective Afienko testified that the defendant entered the undercover car during all three meetings, and that the 2006 black Dodge Charger was on the scene during the two controlled buys. The Commonwealth also introduced certified documents from the Registry of Motor Vehicles showing that the 2006 black Dodge Charger was registered to the defendant at the time of the two controlled buys.
Motion for required finding of not guilty. Next, the defendant challenges the denial of his motion for a required finding of not guilty, asserting that the evidence introduced by the Commonwealth did not sufficiently identify him as the person who sold narcotics to the undercover officers. We disagree.
“We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 208–209 (2007). The Commonwealth introduced the following evidence at trial. The investigating officers called the same telephone number to set up each of the three transactions with “Jay.” At trial, Detective Connerney, who testified that during each of the three meetings he sat just one and one-half feet away from the defendant, identified the defendant as the person from whom he purchased cocaine. During the two controlled buys, officers observed the 2006 black Dodge Charger, which certified documents from the Registry of Motor Vehicles showed was registered in the defendant's name.
Based on this evidence, a rational jury could have found that the defendant was in fact the person who sold cocaine to the undercover officer on December 8 and December 14, 2009. That some of the officers' testimony may have been slightly inconsistent is not pertinent, because “[a]ll questions of the weight of the evidence and the credibility of the testimony were for the jury to decide.” Commonwealth v. Asmeron, 70 Mass.App.Ct. 667, 674 (2007). Accordingly, the judge correctly denied the defendant's motion for a required finding of not guilty.
To the extent that we have not addressed the defendant's remaining arguments, they have not been overlooked. We have considered them and conclude that they lack merit.
Judgments affirmed.