Com. v. Vasquez

• Citation: 914 N.E.2d 944,75 Mass. App. Ct. 446
• Decision Date: 16 October 2009
• Docket Number: No. 08-P-253.,08-P-253.
• Parties: COMMONWEALTH v. Jorge VASQUEZ.
• Court: Appeals Court of Massachusetts

914 N.E.2d 944

75 Mass. App. Ct. 446

COMMONWEALTH v. Jorge VASQUEZ.

No. 08-P-253.

Appeals Court of Massachusetts, Hampden.

Argued June 11, 2009.

Decided October 16, 2009.

Jon R. Maddox, Brookline, for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Present: BERRY, DREBEN, & HANLON, JJ.

BERRY, J.

On January 11, 2007, after a bench trial, the defendant was found guilty of two counts of distribution of cocaine, G.L. c. 94C, § 32A(c); and one count of possession of cocaine, G.L. c. 94C, § 32A(c). After the verdicts, the defendant pleaded guilty to the subsequent offender portion of one of the distribution indictments, G.L. c. 94C, § 32A(d), and to the subsequent offender portion of the possession charge. On appeal, the defendant contends that (1) the evidence that the Commonwealth presented to prove that the defendant distributed cocaine as a joint venturer was insufficient, as was the evidence presented to prove that the defendant constructively possessed cocaine found during a search of his apartment; (2) an identification based on a one-photograph array, presented to the undercover police officer, was unduly suggestive and therefore improperly admitted; and (3) the introduction in evidence of drug certificates violated his right under the Sixth Amendment to the United States Constitution to confront the witnesses.¹ We affirm.

Background. This case involves an ongoing undercover police investigation that culminated in two separate cocaine purchases by an undercover officer. The second led to the police obtaining a search warrant for the defendant's apartment, in which a small amount of cocaine was found.

On July 7, 2005, State Trooper Henot Rivera went to 284 Dwight Street Extension, apartment 4 left (4L), in Springfield, in an undercover capacity, to attempt to purchase drugs from a person he knew as "Flaco." Upon arrival, Rivera found Flaco and purchased an "eight-ball" of "crack" cocaine from him. The next day, State Trooper Daniel Soto showed Rivera a Registry of Motor Vehicles photograph of the defendant, which Rivera identified as a picture of Flaco.

On October 18, 2005, Rivera returned to 4L and told the defendant that he wanted to purchase an eight-ball of crack cocaine. The defendant explained that he only had "16's" so he went downstairs and returned with "Munchy," later identified as Juan Rebollo. Flaco then told Rebollo to "sell to him,"² and Rebollo responded by selling an eight-ball of crack cocaine to Rivera.

On October 20, 2005, the police executed a search warrant for 4L, which was the residence of the defendant as well as the location of the undercover purchases. The police found the defendant in the apartment, placed him under arrest, and, upon a search of the residence, found a small amount of cocaine.

1. Sufficiency of the evidence. After the close of the Commonwealth's case and again at the close of the evidence, the defendant moved unsuccessfully for required findings of not guilty on all counts. On appeal, the defendant contends that the evidence presented by the Commonwealth was insufficient to prove either that he distributed cocaine as a joint venturer when he told "Munchy" to "sell to him," or that he constructively possessed the cocaine that was found during the search of his apartment. We review the sufficiency of the evidence under the familiar standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), that is, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ibid., quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To prove guilt under a theory of joint venture at the time of trial,³ the Commonwealth was required to show that the defendant was "(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Ortiz, 424 Mass. 853, 856, 679 N.E.2d 1007 (1997), quoting from Commonwealth v. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988). The defendant does not contest that he was present at the scene of a drug transaction or that he knew that "Munchy" intended to sell drugs to Rivera. Instead, the defendant contends that he was not willing to be involved in the sale. He claims that by saying "sell to him," he was simply noting that Munchy could proceed with the sale if he so wished. Not only does this interpretation of the evidence strain credulity but, even if accepted, evidence showing that the defendant acted as an intermediary to a drug transaction is sufficient to prove guilt on a distribution charge. Commonwealth v. Noons, 2 Mass. App.Ct. 814, 814-815, 308 N.E.2d 915 (1974).

The defendant also contends that there was insufficient evidence to find him guilty of constructive possession. Constructive possession requires that the Commonwealth prove that the defendant had "knowledge [of the drugs] coupled with the ability and intention to exercise dominion and control." Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). "While presence in an area where contraband is found `alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], . . . presence, supplemented by other incriminating evidence, "will serve to tip the scale in favor of sufficiency."' Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 [6th Cir.1976]." Commonwealth v. Brzezinski, 405 Mass. 401, 409-410, 540 N.E.2d 1325 (1989).

When the police executed the search warrant, the defendant was present in 4L, along with four other men. The police entered through the front door, which had been fortified by a two-by-four. One man jumped through a window and was captured later by police. The defendant was in the living room with another man. The other two men were, respectively, in the bathroom and in the shower stall of that bathroom. Springfield police Officer Reginald Miller testified that, upon a search of the defendant, he found $493 in cash. In a kitchen cabinet, police found a plastic bag containing cocaine, along with a package of sandwich bags, a pair of scissors, and a scale. When the officers found the men in the bathroom, the one closest to the toilet attempted to elude capture. He was restrained, and $274 was recovered from inside the running toilet. In viewing the evidence in the light most favorable to the Commonwealth, money was found on the defendant, and drugs and money were found in common areas in the house. With five men in the house, all of whom could have possessed the drugs, the defendant's presence and the previously listed factors are sufficient to tip the scales so that any rational trier of fact could find the requisite elements of constructive possession beyond a reasonable doubt. See Commonwealth v. Latimore, supra.

2. One-on-one photographic identification. The defendant contends that the process by which Rivera identified the defendant via one photograph was unnecessarily suggestive, and therefore the photograph was improperly admitted. Although no attempt was made to suppress the identification at trial, the defendant contends that failure to raise the issue constitutes ineffective assistance of counsel. Since "the alleged ineffectiveness amounts to nothing more than a failure to preserve claims for appeal, we need only ask whether those claimed errors produced a substantial risk of a miscarriage of justice." Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002).

"It is well-settled that a one-on-one identification procedure of the type involved in this case, while generally disfavored, is not impermissibly suggestive so long as the police have good reason to use the procedure and they avoid any `special elements of unfairness, indicating a desire on the part of the police to "stack the deck"' against the defendant." Commonwealth v. Sylvia, 57 Mass.App.Ct. 66, 69, 781 N.E.2d 46 (2003), quoting from Commonwealth v. Leaster, 395 Mass. 96, 103, 479 N.E.2d 124 (1985). There is no need for exigent circumstances in order to justify this procedure; "good reason" is sufficient. Ibid. In this case, the identification was made one day after the July 7, 2005, drug transaction in an ongoing investigation. The defendant argues that the possibility existed to use a larger array and that possibility is sufficient to render the identification unduly suggestive. "Failure of the police to pursue alternate identification procedures does not in itself render an identification unduly suggestive. The question is whether the police acted permissibly. The answer is not governed by the availability of another approach." Commonwealth v. Martin, 447 Mass. 274, 280, 850 N.E.2d 555 (2006). Here, while the procedure may not have been favored, it was permissible, and there is no further evidence supporting the conclusion that the identification was prejudiced.⁴

3. Issues involving the drug certificates. With respect to the two drug sales and the possession charge that are at issue here, four certificates of analysis were introduced during the Commonwealth's case. The certificates are, in effect, out-of-court affidavits, introduced at trial to prove that the substances in question are, in fact, cocaine. No analyst was called to testify at trial. At the introduction of each certificate, defense counsel had the opportunity to object, but did not do so. Although the issue was thus waived, the defendant contends that his claim should be treated as if there had been an objection and thereby preserved for appellate review under the harmless beyond a reasonable doubt standard, rather than under the substantial risk of a miscarriage of justice...