Commonwealth v. Miranda, SJC-09159 (MA 5/27/2004), SJC-09159

• Decision Date: 27 May 2004
• Docket Number: SJC-09159
• Parties: COMMONWEALTH vs. KELMER MIRANDA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH vs. KELMER MIRANDA.

SJC-09159

Supreme Judicial Court of Massachusetts.

Essex.

March 1, 2004.

May 27, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Practice, Criminal, Amendment of indictment or complaint, Indictment, Required finding. Controlled Substances. Evidence, Expert opinion, Joint enterprise. Witness, Expert. Habitual Offender. Joint Enterprise.

Indictments found and returned in the Superior Court Department on June 28, 2000.

The cases were tried before Christine M. McEvoy, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Gregory I. Massing, Assistant District Attorney, for the Commonwealth.

David B. Mark for the defendant.

IRELAND, J.

The defendant, Kelmer Miranda, was charged in three separate indictments with distribution of heroin (first indictment), distribution of heroin or possession of heroin with intent to distribute, as a second or subsequent offense (second indictment), and conspiracy to violate the controlled substance laws.¹ After a Superior Court jury convicted the defendant of distribution of heroin on the theory of joint venture, the judge, with the defendant's consent, amended the first indictment to include, as a second count, the repeat-offender component of the second indictment.² The defendant waived his right to a jury trial on the repeat-offender component of the charge, and was convicted of being a repeat offender in a bench trial. The judge sentenced the defendant only for his conviction of distribution of heroin as a second offense.

On appeal, the Appeals Court concluded that the amended indictment was a "legal impossibility" and vacated the defendant's conviction as a repeat offender. Commonwealth v. Miranda, 59 Mass. App. Ct. 378, 381, 388 (2003). The Appeals Court also reversed the judgment of conviction of distribution of heroin on the ground that the judge erred in admitting expert testimony concerning characteristics of street-level drug distribution. See id. at 387, 388-389. We granted the Commonwealth's application for further appellate review. Because we conclude that the judge did not err in amending, posttrial, the first indictment to include the repeat-offender component of the second indictment, and that the judge properly denied the defendant's motions for a required finding of not guilty and did not abuse her discretion in admitting expert testimony, we affirm the judgments of the Superior Court.

Facts.

We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for discussion in connection with the specific issues raised. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). On June 24, 1999, Deputy Sheriffs Pamela Greaney and Joe Santiago of the Essex County sheriff's department were assigned to an undercover narcotics operation in Lawrence. At about 3:15 P.M., they drove in an unmarked automobile to Park Street in a residential area of Lawrence. Detective Brian Burokas of the Lawrence police department, accompanied by two other detectives, followed in an unmarked car approximately one hundred to 150 feet behind. As the deputies rode down Park Street, they saw a man and a woman, identified at trial as the defendant and Kristen Grant, sitting on a wall. Greaney pulled over to the curb, approximately five to ten feet away from the couple. The windows of the car were down.

After Santiago asked the couple "where [they] could find heroin," Grant walked to the passenger side window. Seconds later, the defendant got up and began looking up and down the street. Greaney saw the defendant look up and down Park Street five or six times. The defendant "[s]tepped to the curbing, looked down, stepped back, looked this way, stepped back to the curbing and looked up and down the street periodically. He was constantly scanning the street." Grant said, "I have four bags." Santiago told Grant that he would "take all four."

The defendant, who, throughout the transaction, kept pacing and looking up and down Park Street, came over to the car and, standing six inches away from Grant, stated, "Hurry up and make the sale so we can get some more." Grant then "[q]uickly pull[ed] four bags out of her bra," handed them to Santiago, and he handed her four ten dollar bills. The defendant and Grant walked down the street together. Burokas and the other detectives, who had observed the sale from a distance of one hundred feet, arrested the defendant and Grant.

Procedural Background.

The first of the two indictments charging the defendant with violations of G. L. c. 94C, § 32, alleged that the defendant "did unlawfully distribute a controlled substance in Class A of G. L. [c. 94C, §] 31, to wit: heroin." The second indictment alleged:

"[The defendant] did knowingly or intentionally manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense . . . heroin; said defendant having been previously convicted of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute or dispense a controlled substance as defined by [G. L. c. 94C, § 31], under this or any prior law of the commonwealth or of any offense of any other jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense."

At a pretrial hearing, the Commonwealth indicated its intent to go forward on the distribution charge contained in the first indictment, and to nol pros the conspiracy charge. The judge noted that it was unusual for the repeat-offender component of the distribution charge to be contained in the second indictment.

The defendant filed a pretrial motion to exclude expert testimony of Detective Burokas regarding methods used in the distribution of heroin in the Lawrence area. At a hearing on the motion, defense counsel argued, inter alia, that the lookout scenario presented by the case was a simple concept that did not require special expertise. Defense counsel also asserted that "having [the expert] testify to the exact scenario . . . in this case is far more prejudicial than it is probative." The judge ruled that Burokas could testify as to "various methods of distribution of heroin," but "not limited to one scenario of a lookout-type transaction."³

At trial, Burokas testified both as a percipient witness and as an expert on the methods used by street-level drug dealers.⁴ Asked to describe methods of heroin distribution in the greater Lawrence area, he testified, over objection: "[T]he prospective dealer would be on the street and across the street or nearby would be the eyes and ears of this dealer, a lookout looking up and down the street to make sure [the police] are not in the area." When asked whether a "street deal" takes place on the street, Burokas stated that it usually does, and further explained: "The dealer . . . would have the two or three employees, the runner, lookout, money man, either directing them to the dealer or, basically, the dealer would handle everything and have the lookouts around." Burokas also testified as to more sophisticated methods sometimes used by dealers, such as pagers or cellular telephones, and stated that lookouts sometimes hid inside houses or apartments, trying to spot police or potential customers.⁵

Discussion.

1. Amendment of indictment. The defendant claims that the judge erred in amending, postverdict, the single indictment on which he was tried by adding the repeat-offender component of the second indictment. We disagree. It was within the judge's discretion to amend the indictment in the manner in which she did. Under Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979), a judge has discretion to allow an amendment of an indictment if the amendment is one of form, not substance, and if the amendment will "not result in prejudice." See Commonwealth v. Knight, 437 Mass. 487, 491-492 (2002). Article 12 of the Declaration of Rights of the Massachusetts Constitution adds the requirement that the amendment not "materially change[] the work of the grand jury." Id. at 492. Here, the amendment satisfied all three requirements.

As a preliminary matter, we note that under G. L. c. 278, § 11A,⁶ the defendant was required to be tried in the manner that he was — first, on the underlying substantive crime and, then, in a separate proceeding, on that component of the charge referring to the crime as a second or subsequent offense. Our decision in Bynum v. Commonwealth, 429 Mass. 705 (1999), clarifies that the repeat-offender statutes, such as G. L. c. 94C, § 32 (b ), do not identify freestanding crimes, but concern "solely the sentence of a person convicted of a [current] violation . . . who has previously been convicted of at least one similar drug offense. The prior offense is not an element of the crime for which a defendant is charged but concerns the punishment to be imposed if he is convicted [of the current offense] and the prior offense is proved."⁷ Id. at 708-709.

We now consider the propriety of the amendment. First, the amendment of the first indictment to include the repeat-offender component of the second indictment was a matter of form, not substance. See Commonwealth v. Knight, supra at 492, quoting Commonwealth v. Snow, 269 Mass. 598, 606 (1930) (amendment is matter of form when it is "not essential to the description of the crime charged"); Commonwealth v. Fernandes, 430 Mass. 517, 520 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000) ("the repeat-offender statutes are sentence enhancement provisions only and do not identify a freestanding crime"). The amendment merely combined the first indictment and the repeat-offender component of the second indictment into a single instrument; it did not alter the nature of the charges or the jeopardy the defendant faced.⁸ See id.

Second, the amendment of the indictment did...