Opinion
No. 10–P–2158.
2012-05-29
COMMONWEALTH v. Ramon SANTA.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On November 11, 2008, Springfield police officers executed a search warrant at a local residence. The defendant was arrested and various drug paraphernalia were found and seized. As a result, he was charged with trafficking in cocaine between twenty-eight and 100 grams pursuant to G.L. c. 94C, § 32E( b ).
On July 29, 2009, after a jury trial the defendant was found guilty of so much of the indictment that alleged trafficking in cocaine between fourteen to twenty-eight grams.
He appeals the resulting judgment. We affirm.
The jury found the defendant not guilty of possession of marijuana. Two other counts were nolle prosequi by the Commonwealth.
On appeal, the defendant claims that the trial judge committed error in: (1) failing to exclude the expert testimony of two police officers, where their testimony allegedly expressed an opinion as to an ultimate issue in the case; (2) allowing alleged prior bad acts in evidence; and (3) denying his motion for a required finding of not guilty. The defendant also contends that the prosecutor's closing argument improperly vouched for the credibility of witnesses, referred to facts not in evidence, and misstated the law.
Background. Lieutenant Charles Cook, along with Sergeant Robert Tardiff, of the Springfield police department supervised the execution of the search warrant. The defendant was found in bed. He was searched, and $148 was discovered in his possession, in addition to a driver's license bearing his photo and the address of the residence being searched. On a table beside the bed, the police found a plastic bag containing a white powdery substance. On the floor next to the bed, another plastic bag containing a white substance was found. A safe in a closet revealed another 120 smaller plastic baggies, each containing an off-white rock substance. In the kitchen, a scale was discovered with white residue on its surface. Upon testing at the State laboratory consistent with the State regulations, several of the baggies were found to contain crack cocaine.
At trial, Lieutenant Cook testified that, based on his experience and training, the packaging in plastic baggies was “common packaging for street-level sale of crack cocaine” and not consistent with personal use. Sergeant Tardiff testified that, based on his experience and training, the presence of the amount of crack cocaine allegedly possessed by the defendant, coupled with the scale found in the apartment, was not consistent with personal use. James Hatchett, a laboratory assistant at the Massachusetts Department of Health, testified regarding the analysis he performed of the various substances seized by the police at the defendant's residence. Based on the tests, he found that the 120 baggies containing the off-white rock substance were cocaine, and weighed 20.16 grams in total. We now turn to the issues raised by the defendant, discussing each in turn.
1. Admission of expert opinion testimony. The defendant first claims that the judge committed error when he failed to exclude the expert police testimony because it allegedly expressed an opinion on the ultimate issue of intent to traffick, thereby intruding into the fact-finding function of the jury. We disagree.
“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.” Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 457 (2006). “Whether a certain quantity of drugs is consistent with personal use or with distribution is a matter not within the common experience of jurors.” Commonwealth v. Wilson, 441 Mass. 390, 401 (2004). Therefore, “[o]pinion 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 (or judge as a fact finder).” Grissett, supra.
We have examined the testimony of both police officers. Lieutenant Cook's testimony was well within the guidelines established by the court's decisions. Sergeant Tardiff's testimony was also admissible, with one exception. He testified that the “evidence show[ed] that this was ... distribution.” The defendant objected, and the judge struck that portion of the testimony and gave a limiting instruction to the jury. The jury is presumed to have followed the judge's instruction to disregard the stricken testimony. Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012). There was no error.
2. Admission of alleged bad acts testimony. Over the defendant's objections and subject to limiting instructions from the judge, the prosecutor introduced evidence that the police officers searched the defendant's apartment pursuant to a search warrant and that the defendant was the target of the search warrant. The defendant now claims the testimony constituted reversible error because it established that the defendant committed prior bad acts, and was prejudicial. Further, the defendant argues that the prosecutor compounded the problem by stating, in his closing, that the police had “targeted” the defendant and obtained a search warrant.
“Where, as here, probable cause to search is not a live issue at trial, the prosecutor may not elicit irrelevant and unfairly prejudicial evidence of the procedures and approvals necessary to obtain a search warrant.” Commonwealth v. McCollum, 79 Mass.App.Ct. 239, 260 (2011). But, “evidence tending to show relevant context or continuity is admissible.” Ibid. See Mass. G. Evid. § 403 (2011).
At trial, the judge was aware of the possible prejudicial aspects of the evidence. He therefore repeatedly instructed the jury that the evidence that the defendant and his apartment were the targets of a search warrant was offered only for the limited purpose of informing them about a step in the investigative process, and that such evidence should not be used by the jury in determining whether the defendant is innocent or guilty. The jury are presumed to have followed the judge's limiting instructions. See Commonwealth v. Girouard, 436 Mass. 657, 669 (2002). Further, there was no dispute that the police were indeed focused on the defendant as the target. See Commonwealth v. Celestino, 47 Mass.App.Ct. 916, 918 (1999).
The defendant cites Commonwealth v. Sapoznick, 28 Mass.App.Ct. 236, 245–247 (1990), in support of his argument. In Sapoznick, the court ruled that the judge committed error where probable cause to issue a search warrant was not a live issue, and he admitted evidence of the procedure for issuance of the warrant and permitted the prosecutor to comment on that evidence during his closing argument. Such evidence and comment were not present in this case. Therefore, Sapoznick does not control this matter. We agree with the judge that the evidence was relevant and not unduly prejudicial.
3. The prosecutor's closing argument. The defendant claims that the prosecutor committed reversible error in his closing argument by vouching for the Commonwealth's witnesses, referring to facts not in evidence, and misstating the law. The defendant did not object to the prosecutor's alleged reference to facts not in evidence.
We have examined the prosecutor's closing argument in view of the claims raised by the defendant. The prosecutor did not vouch for the credibility of the Commonwealth's witnesses or state that “he had knowledge independent of the evidence before the jury.” Commonwealth v. Dancy, 75 Mass.App.Ct. 175, 189 (2009). Further, at no time did the prosecutor misstate the law. Finally, the prosecutor's brief comment that the jury could infer from the residue on the scale that it was used for the distribution of cocaine was proper. The jury could draw a reasonable inference from the evidence of the white powder on the scale that it was used for the distribution of cocaine. We also note that in his closing argument, defense counsel conceded that there had been drug dealing at the defendant's residence. We accordingly reject the defendant's claim.
4. Denial of motion for a required finding of not guilty. The defendant lastly claims that the judge committed error in denying his motion for a required finding of not guilty because the Commonwealth failed to demonstrate that the defendant trafficked cocaine in excess of fourteen grams. Hatchett, the drug analyst, explained the process by which he determined that the substances recovered in the defendant's apartment were cocaine and how he calculated the weight of the drugs. He need not have tested every bag containing white powder found during the search to calculate the total weight of the drugs recovered. See Commonwealth v. Shea, 28 Mass.App.Ct. 28, 33–34 (1989). There was no error. Judgment affirmed. By the Court (Trainor, Smith & Sullivan, JJ.),