Commonwealth v. Eneh

• Decision Date: 27 April 2010
• Docket Number: No. 09-P-413.,09-P-413.
• Citation: 76 Mass.App.Ct. 672,925 N.E.2d 64
• Parties: COMMONWEALTHv.Nnaemeka ENEH.
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 672

925 N.E.2d 64

COMMONWEALTHv.Nnaemeka ENEH.

No. 09-P-413.

Appeals Court of Massachusetts Suffolk.

Argued Feb. 4, 2010.

Decided April 27, 2010.

Kevin S. Nixon, Boston, for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, BROWN, & RUBIN, JJ.

CYPHER, J.

After trial on a two-count indictment charging trafficking in cocaine and trafficking in heroin, a Superior Court jury convicted the defendant, Nnaemeka Eneh, of trafficking in cocaine and the lesser included offense of possession of heroin with intent to distribute. On appeal, the defendant claims that he was prejudiced by the prosecution's delayed disclosure of bank records. We agree and reverse the defendant's convictions.¹

Factual background. The indictments were predicated on the sale of cocaine and heroin by the defendant to Drug Enforcement Administration (DEA) Special Agent Patrick Dorsey, and the later discovery of thirteen small packets of heroin hidden on the defendant. At trial, the defendant did not dispute that the sale had taken place, that he had additional heroin on his person, or, indeed, that a second, earlier sale had occurred. Rather, he claimed that he had been entrapped.

Defense counsel set the stage for the defense in his opening statement. He began by asking the jury to consider whether the defendant “would have committed this crime but for the insistence and urging of Special Agent Dorsey.” He explained that the defendant had come to the United States in 2001 to pursue his education and later settled in Boston to accomplish this goal. Defense counsel admitted, however, that the defendant “quickly became homeless” due to his burgeoning heroin addiction. While homeless, the defendant met Melissa Wilkin, the woman who was to become the mother of his child. She too had a heroin addiction and was homeless because of her habit. Although the defendant and Wilkin pooled her wages with money they borrowed from family and friends, “they spent most of their time hanging out on the streets of Boston” and “hustling for spare change in the Boston Common and the streets” in order “to placate their addictions.”

Defense counsel explained that in May, 2005, the defendant was introduced to DEA Special Agent Dorsey, working undercover, who began to regularly pester him for drugs. In June, 2005, when the defendant became weak from heroin withdrawal, he agreed to get Dorsey heroin because he anticipated being able to skim some “heroin off the top so he could take care of himself and his girlfriend.” The defendant consummated the transaction, but Dorsey continued to maintain routine contact with him, repeatedly “prodding” him to get more heroin. The defendant, however, refused. Not until November, 2005, when he was again weak from heroin withdrawal, did he agree to sell more drugs to Dorsey. That sale was interrupted by the defendant's arrest, which resulted in the current charges.

Upon the completion of opening statements, the prosecutor called her first witness, Special Agent Dorsey, and was able to elicit only some preliminary information before the first day of trial concluded.

The next morning, defense counsel informed the judge that the prosecutor had contacted him the previous evening to disclose the existence of inculpatory bank records. The police had found a bank receipt on the defendant during booking showing that a few days earlier, he had made a cash deposit in the amount of $5,010 into a joint account that he held with Wilkin, bringing the total in the account to more than $14,000. The police copied this receipt and returned the original to the defendant but apparently failed to provide the information to the prosecutor until after the first day of trial had concluded.

Defense counsel moved to exclude the late-disclosed documents, pointing out that he had just “described my client to the jury as a homeless drug addict panhandling in the Boston Common for spare change,” only to have a “bomb dropped on me that he has more money in his bank account than I do.” When the prosecutor agreed not to use the documents in her case-in-chief, the judge declined to rule on the defendant's motion to exclude the documents and stated that she would address the matter before the defendant or Wilkin testified.

Dorsey resumed the stand and testified that in two brief telephone conversations with the defendant, one on November 16, 2005, and another on November 17, 2005, he arranged to purchase fifteen grams of heroin. The telephone calls were recorded and were played for the jury. At approximately 2:30 p.m. on November 17, as agreed, Dorsey met the defendant at the Sevens restaurant in Boston. The defendant told Dorsey that he had been in a hurry when he picked up the heroin from his supplier and had grabbed two packages, one containing heroin and the other, to the defendant's surprise, containing cocaine, and he therefore did not have the full fifteen grams of heroin Dorsey had requested.

Dorsey agreed to buy both packages, and they went to Dorsey's car. There, the defendant reached into his sock and pulled out two opaque bluish-purple balloon-type packages. Dorsey told the defendant that the money was in the trunk and got out of the vehicle. Dorsey opened the trunk, which was the prearranged signal to the surveillance team that he had the contraband, then closed the trunk and walked away. The surveillance team moved in, arrested the defendant, and brought him to the police station. During booking, an additional thirteen small packets of heroin were discovered inside a terry cloth headband on the defendant's thigh.

Dorsey later returned to the police station and field tested the drugs in “small containers that come from the lab.” The two packages he had obtained from the defendant tested positive for heroin and cocaine. Certificates of analysis were introduced in evidence that confirmed the field test results and showed that the thirteen smaller packets found in the headband contained heroin. The certificates further indicated that the cocaine weighed 14.50 grams, the large package of heroin weighed 10.13 grams, and, collectively, the thirteen smaller packages of heroin weighed 4.22 grams. Special Agent James Doyle, a twenty-year DEA veteran, gave an opinion that the thirteen smaller packets contained heroin packaged for street-level distribution. He also testified that, in 2005, a gram of heroin sold for about $100.

Dorsey was also questioned about an earlier heroin purchase that he had made from the defendant. The defendant was never charged with this sale, and the judge gave a limiting instruction that the evidence could only be used to establish the defendant's predisposition to sell heroin in relation to his claim that he had been entrapped.

Dorsey explained that he had first met the defendant on June 6, 2005, and by June 15, 2005, in a recorded telephone conversation, the defendant had agreed to sell Dorsey five grams of heroin. Two days later, on June 17, 2005, they met at the Sevens restaurant and spent about forty-five minutes in the restaurant, eating, before going to Dorsey's motor vehicle. Inside the car, the defendant handed Dorsey what appeared to be heroin. Dorsey put the package on a scale that he had with him and discovered that it weighed only 3.8 grams, not the agreed-upon five grams. The defendant agreed to take $100 less than the originally established price of $500. Field testing showed the substance tested positive for heroin.

Dorsey further testified that at the end of the June transaction, he told the defendant he would be going to Florida for a while but wanted to know if the defendant could “bump it up” and supply him with ten or fifteen grams of heroin when he returned. The defendant said that would not be a problem. According to Dorsey, he had no further contact with the defendant until November, 2005, because he was involved in a more important wiretap investigation.

Melissa Wilkin, the defendant's girlfriend, testified for the defense. She testified that the defendant had a three gram a day heroin habit and that she used about two grams of heroin per day. Although she worked close to full time at Dunkin' Donuts and begged for money on the streets of Boston, her heroin habit left her homeless. Wilkin acknowledged that in 2005, she had about $10,000 in a joint bank account she held with the defendant. She said the money came from the defendant's family and her job and that they were saving for a place to live. She testified that she never saw the defendant sell drugs.

During cross-examination, the prosecutor sought to admit the records related to the couple's savings account that had been discovered on the defendant during booking. Defense counsel objected and argued that “[i]f I had known about these documents, even a month ago, my angle of attack most certainly would have been different.” The judge overruled the objection, stating that the “fundamental problem with this argument is that nobody ... has the right to take the witness stand and lie. Not a defendant, not a witness and there's nothing at this point that suggests anything other than that.”

The defendant also testified and said that he moved to Boston in 2003 to attend school but that by 2004, he had abandoned this goal because he had acquired a three gram a day heroin habit. In 2005, he, like his girlfriend, was homeless because of his drug habit. In order to fund his habit, he begged, which could net $220 a day, and his family gave him money when he lied and told them he needed it for school.

In April, 2005, he met Dorsey, who was looking for drugs. According to the defendant, Dorsey called him “all the time,” and met him three to four times per week looking for drugs. In June, he was sick from withdrawal and finally agreed to sell Dorsey five grams of heroin so that he could take some off the top for himself. He sold the “short” packet to Dorsey in June, because Dorsey had been hounding...