Opinion
18-P-590
05-21-2019
COMMONWEALTH v. FERNANDO ROSADO.
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
The defendant, Fernando Rosado, appeals from his conviction, following a jury trial, of possession of heroin with intent to distribute, pursuant to G. L. c. 94C, § 32 (b), and from the order denying his motion for a new trial, pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). He contends that the trial judge erred in allowing in evidence (1) police expert testimony that exceeded permissible limits, (2) improper police officer testimony regarding the decision to charge the defendant with possession with the intent to distribute, and (3) negative profiling testimony. Because of the numerous errors that occurred in the defendant's trial, we vacate the judgment and set aside the verdict.
The defendant pleaded guilty to the subsequent offense portion of the indictment.
We need not reach the defendant's arguments regarding the order denying his motion for a new trial. See note 14, infra.
Background. In early January 2015, Springfield Police Department narcotics unit officers were investigating possible drug activity by Jotsan Rosado, the defendant's son, at an apartment in Springfield. Lieutenant Alberto Ayala testified that there was "medium" traffic going in and out of the apartment that day. Detective Edward Kalish, who was the lead investigator and had obtained a search warrant for the apartment, observed David Jordan park a red Jeep Cherokee nearby, walk to the apartment, and enter.
We recite the facts the jury could have found, reserving further details for discussion in conjunction with the specific issues raised.
Because the defendant and his son share the same surname, we will refer to each by his first name.
Kalish had applied for and received a search warrant for the apartment, naming Jotsan as the target.
During surveillance of the same apartment four days later, officers saw Jordan return to the apartment in the Cherokee; Jotsan, who had already left the residence and was on his cell phone, ran down the driveway as the Cherokee approached, got into the driver's seat, and drove away. Shortly thereafter, officers stopped the vehicle and searched Jordan and Jotsan.
Jordan carried 173 bags of heroin (fifty were stamped "AK47" in a dark ink and 123 were stamped "Blue Magic" in blue ink), ten bags of cocaine, six bags of marijuana, and $122. Jotsan had sixty-eight bags of heroin, which were also stamped "Blue Magic" although in pink ink, and $1,320. Both men were arrested.
Subsequently, officers executed the search warrant for the apartment. The defendant, who lived in the apartment, was present. He was handcuffed and searched by Detective Mark Templeman. The defendant had forty-eight white bags of heroin, each (like Jordan's and Jotsan's heroin bags) stamped "Blue Magic" in pink or red ink, in a small black leather pouch attached to his belt. He also had thirty-nine dollars in his pockets. Three other individuals were in the apartment at the time; because none of them had illegal narcotics on their person, they were released.
Officers searched the apartment and found a Comcast cable bill on the kitchen table addressed to the defendant. Officers also found mail addressed to Jotsan, a Massachusetts identification card for Jotsan, and a photograph of Jotsan. In the kitchen hutch, Detective William Lopes recovered hundreds of empty, yellow wax heroin packaging bags stamped with the "French Montana" logo, a "French Montana" stamp, and several hundred empty glassine baggies. Officers also found a straw with the end cut at an angle. Kalish testified that, in his experience, straws cut like this one were typically used to measure "the amount of heroin that's desired in one bag." Officers arrested the defendant.
At trial, it was undisputed that the defendant possessed the heroin on his person at the time of his arrest. He claimed, however, that he was addicted to narcotics, and that the heroin was for his personal use. The defendant testified that he had lived in the apartment for five years, and sometimes would let Jotsan use the address. The defendant testified that, prior to the execution of the search warrant, he had consumed two bags of heroin and discarded the used packets in the trash. No evidence of any used packets was found by Templeman, who testified that he searched the trash cans in the apartment.
As set forth supra, the jury found the defendant guilty of unlawful possession of heroin with the intent to distribute, and he pleaded guilty to the subsequent offense. The defendant's appeal was stayed pending consideration of his motion for new trial. After a different judge denied the motion, the defendant's direct appeal and the appeal from the order denying his new trial motion were consolidated.
Discussion. A trial judge's determination to allow expert testimony "will be reversed only where the admission constitutes an abuse of discretion or error of law" (citation omitted). Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 907 (1999). Expert opinion testimony often is and indeed should be grounded in the facts of the case at hand, but care must be taken such that the expert does "not directly express his views on the defendant's guilt" (citation omitted). Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998). The determination whether expert evidence is proper does not turn on the "precise locution used," but rather focuses on whether it serves an "educative function." Id. at 581. Because of the risk that "specific observations and expert generalizations" can become blurred through testimony from a percipient police officer, the practice should "best be avoided" and if used, used with "adequate care." Id. at 579.
1. Expert testimony regarding the element of intent to distribute. In this case, the Commonwealth presented expert testimony on the key disputed issue -- whether the defendant possessed heroin for his own personal use or with the intent to distribute -- through three separate expert witnesses. The Commonwealth's designated expert, Detective Jamie Bruno, was a nonpercipient witness. Kalish and Templeman were percipient witnesses who also opined on the issue of distribution.
The defendant does not contest the qualifications of any of the experts.
The defendant first contends that Bruno's testimony exceeded the scope of permissible expert opinion testimony. During his direct examination, Bruno testified as follows:
Q.: "So you've testified that the 48 bags alone, just the packaging alone, would be significant or would be consistent with the intent to distribute.The testimony was allowed over the defendant's objection. The Commonwealth concedes that this was error. We agree. The testimony crossed the line from permissible explanatory testimony to impermissible testimony directly opining as to the defendant's guilt. See id. See, e.g., Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 842 (2012) (expert testimony improper: "But the number of bags here? I would say they're offered for sale"); Commonwealth v. Delgado, 51 Mass. App. Ct. 661, 663 (2001) (expert testimony improper: "A person who would have [sixteen packets of] heroin on him, I would believe would be a distributor of heroin").
"And now I'm going to show you with that in mind, the 48 bags recovered on -- the 48 bags that you've seen, couple that with all of this evidence, not even including the other narcotics that I've shown you, what does that tell you if all of those items are found in an apartment?" . . .
A.: "That this is a place where heroin is sold. They manufacture it there and it looks like they were getting prepared to buy in a whole form, process it, and produce a stamp 'French Montana' in order to sell it out on the street."
Bruno also testified in response to a hypothetical posed by the prosecutor, tracking the facts of the case. Bruno testified that the person in the hypothetical occupying the same position as the defendant in the case was "[t]he individual [who has] the store open at the apartment" and confirmed that the individual's role is to "maintain a distribution point." The defendant maintains that this testimony was improper; however, an expert may testify regarding a hypothetical tracking the facts of the case. See, e.g., Commonwealth v. Almele, 87 Mass. App. Ct. 218, 228 (2015), S.C., 474 Mass. 1017 (2016) ("While the answer was not in the approved hypothetical and 'consistent with' form, and was improper in isolation, we view it as having been built upon information already admitted in evidence"); Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 182-184 (2009) (admission of expert testimony in response to hypothetical tracking facts of case not improper).
The defendant also contends that the trial judge erred in allowing Kalish to testify, over trial counsel's objection, as follows:
Q.: "What's been your experience with 48 individual bags on their person?" . . .Thereafter, the prosecutor asked Kalish, "And you weren't just dealing with the 48 bags here, correct, Detective?" (emphasis added), and proceeded to walk Kalish through the evidence (in addition to the forty-eight bags of heroin found on the defendant) upon which Kalish relied in deciding to charge the defendant with distribution rather than mere possession. In context, this also was improper expert testimony directly opining as to the defendant's guilt. See Tanner, 45 Mass. App. Ct. at 580 (despite use of phrase "[f]rom my experience," percipient officer's testimony that he believed drug transaction had taken place was improper).
A.: "That they were selling heroin."
We discuss infra the defendant's argument that the testimony regarding the charging decision was improper.
The defendant also objects to purported testimony from Kalish that "[t]he 48 bags were not being held for consumption." However, the transcript pages cited by the defendant do not contain this testimony; indeed, this statement is not included in any of the transcript pages of Kalish's testimony.
The defendant contends that Templeman's testimony that "[i]t's heroin. And it's heroin packaged for sale," in response to the prosecutor's question asking what the forty-eight wax bags recovered from the defendant were "consistent with" was improper. This was not error. See Commonwealth v. Wilson, 441 Mass. 390, 400-401 (2004) (police expert testimony that quantity of marijuana, cash, pager, and cellular telephone were consistent with intent to distribute rather than personal use not improper); Delgado, 51 Mass. App. Ct. at 664 ("A police officer who is experienced with the narcotics trade may be permitted to express an opinion that the amount of a substance possessed by the defendant was consistent with an intent to distribute"), citing Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). See also Commonwealth v. MacDonald, 459 Mass. 148, 162 (2011) (approving "consistent with" formulation).
2. Testimony regarding charging decision. The defendant contends that Kalish's and Ayala's testimony regarding the decision to charge the defendant with distribution, as well as Kalish's reference to the grand jury indictment, were improper. We agree. Specifically, Kalish testified as to the factors he considers in arresting persons for distribution, and how he sometimes determined the "appropriate" charge as the result of a collective decision by himself, the other officers on the case, and his supervisor based on their review of "all the evidence." Kalish stated that his supervisor may look at the charges and state, "Yeah, I agree, that's exactly what the appropriate charges are." Trial counsel did not object. On redirect, Kalish testified, over trial counsel's objection:
On cross-examination, trial counsel elicited testimony that the charge against the defendant on Kalish's police report was straight possession.
Q.: "It was ultimately the Grand Jury that decided to indict this defendant with possession with intent to distribute?" . . .
A.: "Yes."
Q.: "And that was based upon all the evidence that they were given?"
A.: "Yes."
We agree with the defendant that this testimony was improper. See id. ("Such testimony amounts to a personal assurance by the witness that the crime charged had occurred, and thereby constitutes an improper intrusion into the fact-finding function of the jury"). See also Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) ("The fact that the Commonwealth brought its resources to bear . . . creates the imprimatur of official belief . . . . It is unnecessary and irrelevant to the issue of the defendant's guilt, and is extremely prejudicial").
In addition, the defendant argues the impropriety of Ayala's testimony as to how he forms an opinion that an individual in a household where a search warrant is executed should be arrested for the same crime as the target. Ayala testified, over trial counsel's objection, "Generally the other occupants in the home are sharing the same enterprise based on activity in and out of the home and evidence found at the home. Information that we have." We agree that this was improper. See Tanner, 45 Mass. App. Ct. at 580.
3. Negative profiling testimony. The defendant argues that Kalish's negative profiling testimony was improper. Specifically, Kalish testified, without objection, about the characteristics of a drug addict, including track marks, scratch marks on the neck, weight loss, and lethargy. In contrast, Kalish said that the defendant appeared "[p]erfectly fine. Nothing." Kalish testified that the defendant "didn't appear to be a drug-dependent person." Such negative profiling testimony was impermissible. See Commonwealth v. Horne, 476 Mass. 222, 227 (2017) ("negative profiling evidence -- where the goal is to demonstrate that a person does not fit a particular profile -- falls squarely within the scope of the profiling evidence we have long prohibited"). The defendant concedes these errors were not preserved.
4. Prejudice. "We review nonconstitutional errors, preserved through objection at trial, to determine whether they created prejudicial error" (citation omitted). Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018). "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" (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). We review unpreserved errors to determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), citing Commonwealth v. Delaney, 425 Mass. 587, 595-596 (1997). An error creates such a risk unless the court is "persuaded that it did not 'materially influence[]' the guilty verdict" (citation omitted). Horne, 476 Mass. at 228. "An error may be said to have materially influenced the verdict only if we are left with 'a serious doubt [as to] whether the result of the trial might have been different had the error not been made.'" Id., quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
While any one of the aforementioned errors in isolation may not require reversal, the cumulative effect of these errors cannot be ignored. Each went to the central issue in dispute -- whether the defendant had the intent to distribute the heroin he possessed. The impact of these errors was significant. The testimony was not educative and "amount[ed] to little more than vouching for the Commonwealth's position." Tanner, 45 Mass. App. Ct. at 581. Indeed, both the Commonwealth's expert and the lead investigating officer directly expressed an opinion about the defendant's guilt. These errors were compounded by testimony regarding the officers' decision to charge the defendant with possession of heroin with the intent to distribute rather than possession of heroin. The reference to the grand jury's assessment of the evidence is particularly disturbing and further infringed upon the trial jury's fact-finding function. And, the negative profiling evidence improperly sought to show that the defendant must be selling heroin because he did not fit the profile of a narcotics addict. The case against the defendant was strong, but we cannot say with confidence that the improper testimony did not contribute to the verdict. See Stuckich, 450 Mass. at 454 (even if preserved error standing alone not sufficiently prejudicial, "in combination with other errors . . . , '[o]n the whole, we are left with the clear opinion . . . that there was a substantial risk of a miscarriage of justice'"), quoting Commonwealth v. Cancel, 394 Mass. 567, 576 (1985). Accordingly, the judgment must be vacated and the verdict set aside.,
The judge's admonition, at the commencement of the trial and in his final charge, that the indictment was not evidence did not cure the prejudice from the improper references to the charging decisions and the grand jury's deliberations.
The defendant also raises an evidentiary issue, which we address briefly as the issue may arise in any new trial. Specifically, the defendant asserts that the trial judge erred by not allowing trial counsel (i) to call Detective Gregg Bigda as a witness, or (ii) to introduce a video recording depicting Bigda threatening to plant incriminating evidence and to make false reports against two juveniles, which the defendant posits would provide a possible explanation as to why no empty packets of heroin were found in the defendant's apartment. Because the evidence was that Bigda's role in the investigation was minimal, he was not a witness relied on by the Commonwealth at the trial, and the evidence was that Templeman searched the trash cans in the apartment, we discern no abuse of discretion in the trial judge declining to open the trial to this side issue. Cf. Commonwealth v. Maldonado, 466 Mass. 742, 758-759 (2014). Of course, in any new trial the decision whether to allow evidence of Bigda's conduct is left to the sound discretion of the trial judge. Commonwealth v. Montanino, 409 Mass. 500, 513 (1991).
Because of the result, we need not reach arguments raised in the motion for a new trial that trial counsel provided ineffective assistance. Commonwealth v. Cardenuto, 406 Mass. 450, 453 (1990).
Judgment vacated.
Verdict set aside.
By the Court (Vuono, Massing & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 21, 2019.