Commonwealth v. Ortiz

• Decision Date: 27 March 2000
• Citation: 431 Mass. 134,725 NE 2d 1030
• Parties: COMMONWEALTH v. ANGEL ORTIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 134

725 NE 2d 1030

COMMONWEALTH v. ANGEL ORTIZ.

Supreme Judicial Court of Massachusetts, Plymouth.

January 7, 2000.

March 27, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Catherine K. Byrne, Committee for Public Counsel Services, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

After a jury-waived trial, a judge in the Superior Court convicted the defendant on two separate indictments, the first charging him with trafficking in heroin in an amount of twenty-eight grams or more, but less than one hundred grams, G. L. c. 94C, § 32E (c) (2), and the second charging him with trafficking in heroin in an amount of 200 grams or more, G. L. c. 94C, § 32E (c) (4).¹ The defendant argues that the Commonwealth's evidence was insufficient to warrant the latter conviction because the prosecution had aggregated the amounts found in two "stashes" of heroin at different locations to arrive at 200 grams or more. Thus, the defendant maintains that his motion for a required finding of not guilty under Mass. R. Crim. P. 25 (a), 378 Mass. 896 (1979), should have been allowed on the charge.² The defendant also argues that his pretrial motion to suppress statements to the police was improperly denied because the judge who decided the motion applied the wrong legal standard in deciding that the statements had been made voluntarily. Finally, the defendant challenges the trial testimony of a Federal agent, where his testimony, the defendant contends, was improperly based upon tape recordings that had been suppressed because they were made in violation of G. L. c. 272, § 99, the wiretap statute. The latter two arguments, in the defendant's view, at the very least, require a new trial on both convictions. We transferred the case here on our own motion. We reject the defendant's arguments and affirm both convictions of trafficking in heroin.

Based on the evidence most favorable to the Commonwealth, the judge could have found the following facts. In April, 1996, Special Agent Paul L.D. Russell, Jr., of the Federal Drug Enforcement Administration (DEA), working undercover, had obtained the defendant's pager number from a confidential informant. Agent Russell first came in contact with the defendant on April 24, 1996, when the defendant made a telephone call in response to Russell's page. In this telephone conversation, Agent Russell arranged to purchase heroin from the defendant. In keeping with their arrangements, Agent Russell, later that day, purchased 25.7 grams of heroin from a man who identified himself as the defendant's brother in exchange for $4,500 in cash.

On May 2, 1996, the defendant responded to a page from Agent Russell and agreed to another sale of heroin. The defendant also had his brother and Rosa Guzman speak with Agent Russell to set up the sale. That evening, Agent Russell went to the chosen location. The defendant arrived driving a white automobile. The defendant's passengers, Guzman and two children, got out of the automobile and went into a restaurant. Agent Russell, at the defendant's invitation, joined the defendant in the automobile, where he paid the defendant for 48.8 grams of heroin.

On May 8, 1996, in response to Agent Russell's page, the defendant and Guzman each spoke with Russell concerning his desire to purchase 200 grams of heroin. The defendant agreed to sell 150 grams of heroin and nine "bricks" of cut heroin to Russell for $18,600. The parties agreed to meet in front of a Bradlees store at the Westgate Mall in Brockton to complete the transaction.

On that day, State police Sergeant Stephen O'Reilly and Trooper Paul Hartley, who had been assigned to the case, were conducting surveillance at the Westgate Mall³ and saw the defendant and one Mario Delgado arrive in an automobile. Delgado and the defendant met Agent Russell in front of Bradlees. They returned to, and got into, the automobile to complete the sale. Agent Russell got out of the vehicle and signaled to the State police officers, who arrested the defendant and Delgado. On searching Delgado, Sergeant O'Reilly found a large, brown paper bag containing heroin in a "clear Zip-lock bag," weighing 110.8 grams, and in 450 glassine bags, with a total weight of 24.3 grams.

The defendant and Delgado were taken to the Brockton police station, where the defendant received his Miranda rights and stated that he understood them. Sergeant O'Reilly asked the defendant where the rest of the "stash" was located. The defendant told O'Reilly that about one hundred grams of heroin was hidden in the basement at 70 Tyler Street in Brockton, "underneath some fake stairs." The defendant also told O'Reilly that the key to gain access to the basement was located in a file cabinet in the house, where there was also about $6,500 in cash.

Sergeant O'Reilly promptly went to 70 Tyler Street. Other police officers were at the house in the process of searching the first floor apartment pursuant to a warrant. The police found, underneath the stairway in the basement, a package containing two plastic bags of heroin, with a total weight of 98.9 grams. They also found packaging material, tape, empty bags, a scale, and sifters, among other items. Inside the house, the police seized $6,743 in cash, including twelve bills with serial numbers matching those that had been marked on the money used by Agent Russell in his purchase from the defendant on May 2, 1996. The police also found a black notebook that contained notations relating to drug transactions.

1. The defendant claims that he was entitled to a required finding of not guilty on the indictment charging him with trafficking in 200 or more grams of heroin on May 8, 1996, because the Commonwealth's evidence was insufficient as matter of law. The defendant does not contest on appeal that he constructively possessed the total amount of heroin that underlies the charge. Rather, he claims that the heroin he possessed at each location (at the Westgate Mall and at 70 Tyler Street) constituted separate quantities that were intended for different purposes, and the Commonwealth was not, therefore, permitted to combine the two quantities in one possession charge. The defendant bases his argument that aggregation was impermissible on what was expressed in Commonwealth v. Diaz, 383 Mass. 73, 82-85 (1981). We stated that our drug statutes do not describe the "offense of maintaining a drug business, which might be proved by a number of acts of possession and sale; rather the statutes denounce particular acts stated disjunctively." Id. at 84. The defendant reasons that, if according to the Diaz case, the crime of possession with intent to distribute heroin involves one specific act or transaction, then, in the absence of evidence that two amounts of heroin are part of the same act or transaction, the Commonwealth may not aggregate the two amounts in order to convict him of a more serious offense. The defendant concludes that such evidence was lacking here and the Commonwealth failed to satisfy its burden of proving that the two amounts seized from him on May 8, 1996, were part of the same transaction.⁴

We recently stated in Commonwealth v. Rabb, ante 123, 130 (2000), that separate prosecutions for possession of a controlled substance under G. L. c. 94C, § 32E, do not offend double jeopardy principles, as long as the amount of the specific controlled substance supporting each conviction constitutes a "separate item" that is sufficiently differentiated by time, location, or intended purpose. Nothing that was stated in Rabb, supra, or in Diaz, supra, however, precludes a prosecutor from combining two quantities of a specified controlled substance possessed by a defendant at different locations in order to prosecute him on a more serious offense under G. L. c. 94C, § 32E. General Laws c. 94C, § 32E (c), has no language prohibiting a prosecutor from aggregating separate supplies of heroin possessed by a defendant at one time to constitute a single offense. The procedure of aggregating separate quantities of a specific controlled substance to bring one criminal charge is frequently used, see, e.g., Commonwealth v. Cuffie, 414 Mass. 632, 638-639 (1993); Commonwealth v. Adames, 41 Mass. App. Ct. 14, 15-16 (1996); Commonwealth v. Rivera, 40 Mass. App. Ct. 308, 312-313 (1996), and is considered a permissible tool within prosecutors' broad discretion to initiate and conduct criminal prosecutions. See Cedeno v. Commonwealth, 404 Mass. 190, 196-197 (1989) (prosecutorial discretion to determine penalty to which accused exposed based on choice of charges does not violate due process). Absent statutory language to the contrary, or jurisdictional limitations imposed by the Legislature as to Massachusetts courts (both in terms of subject matter jurisdiction and geographical jurisdiction), a prosecutor has the discretion to pursue one prosecution, or more, in circumstances, such as here, where a defendant is found to possess multiple separate amounts of a controlled substance at one time.⁵ See Commonwealth v. Rabb, supra at 129-130 n.5. See also Commonwealth v. Murray, 401 Mass. 771, 774 (1988); Commonwealth v. England, 350 Mass. 83, 87 (1966); Commonwealth v. Brown, 12 Mass. App. Ct. 988, 988-989 (1981).

The defendant's contention that the Commonwealth is required to prove that the two quantities of heroin came from the same supply, in order to link them for purposes of one prosecution, is incorrect. Whether multiple quantities of a certain controlled substance come from the same supply is, generally, irrelevant to the question whether a prosecutor may combine the amounts under one indictment.⁶ A defendant may point to the lack of a connection to a larger supply, however, to assert, as a ground for an insufficient evidence claim, that part of the total quantity was intended for a different use, and not for sale. See Commonwealth v. Ellis, 356...