Commw. v. Ortiz

• Decision Date: 04 May 2000
• Docket Number: P-2191
• Citation: 737 N.E.2d 482,50 Mass.App.Ct. 304
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH vs. MIGUEL ORTIZ. 98- Worcester County Argued:
• Court: Appeals Court of Massachusetts

737 N.E.2d 482 (Mass.App.Ct. 2000)

COMMONWEALTH vs. MIGUEL ORTIZ.

98-P-2191.

Massachusetts Court Of Appeals

Worcester County

Argued: May 4, 2000

Decided: October 24, 2000.

Controlled Substances. Practice, Criminal, Assistance of counsel, Judicial discretion, Challenge to jurors, Argument by prosecutor. Constitutional Law, Assistance of counsel. Evidence, Guilty plea, Expert opinion. Witness, Police officer, Expert. Error, Harmless.

Indictments found and returned in the Superior Court Department on June 9, 1997.

The cases were tried before Martha B. Sosman, J.

Daniel W. Rice for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

Brown, Perretta, & Greenberg, JJ.

PERRETTA, J.

After a jury trial, the defendant, Miguel Ortiz, was convicted of distribution of heroin, and of doing so within 1,000 feet of a school zone.¹ The defendant appeals, alleging numerous errors by the trial judge, the prosecutor, and his trial counsel. We take them up seriatim and affirm the judgments.

1. On the morning of trial, December 10, 1997, defense counsel informed the judge that the defendant had requested that he be removed as the defendant's attorney. This was not the defendant's first such request: on November 18, he had asked for the removal of his trial counsel; he made that request again the day before trial. The judge who heard the defendant's request of November 18 gave the defendant the option of continuing with his current counsel or proceeding pro se. The defendant elected to proceed with his current counsel. The judge who heard the defendant's second request to remove counsel also denied it as well as his request for a thirty-day continuance so that he might prepare to represent himself.

In response to the trial judge's invitation to explain why he sought the removal of his attorney, the defendant's sole substantive complaint was that he had not had any motion hearings: "I just want my motion hearing just like everybody else." Defense counsel represented to the judge that he was "prepared to go to trial today."

A defendant's request to discharge counsel on the day trial is scheduled to begin "is a matter left to the sound discretion of the trial judge." Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985), quoting from Commonwealth v. Moran, 388 Mass. 655, 659 (1983). The defendant bears the burden of establishing good cause to discharge counsel. Commonwealth v. Moran, 17 Mass. App. Ct. 200, 204 (1983). The judge gave the defendant the opportunity to explain why his trial counsel should be discharged: "Mr. Ortiz, what's the problem?" See Commonwealth v. Chavis, 415 Mass. 703, 711 (1993) (judge must allow defendant to present reasons he moved to discharge counsel). There was nothing in the defendant's response that raised even a suggestion of the kinds of problems -- conflict of interest, incompetence of counsel, an irreconcilable breakdown in communications -- that might have outweighed the Commonwealth's interest in the expeditious trial of this case. Id. at 712. In the circumstances presented, the judge's refusal to remove defense counsel was well within the bounds of her discretion.

2. Prior to impanelment of the jury, the defendant sought a ruling from the trial judge as to whether he could cross-examine undercover police Officer Larry Williams about his awareness of the fact that the defendant's alleged coventurer, Victor Bonilla, had pled guilty. It was not, however, Williams's awareness of Bonilla's plea that the defendant wanted to put before the jury, but rather the fact of the plea itself. The judge understood this. Her ruling did not address the questionable means (cross-examination of Williams) by which the defendant sought to put this information before the jury. Rather, the judge simply ruled that the defendant would not be allowed to introduce any evidence of Bonilla's guilty plea. She added, however, that "you may certainly discuss everything else about Mr. Bonilla and his actual involvement, . . . you are give[n] a free reign to question the officer about that."

The judge did not abuse her discretion in refusing to allow the defendant to introduce evidence of Bonilla's guilty plea. That guilty plea had no tendency to exonerate the defendant where he was being tried on the theory that he participated with Bonilla in the distribution of narcotics to Williams. In these circumstances, Bonilla's guilt was not inconsistent with the defendant's guilt. More than one person may be culpable for the distribution of the same controlled substance. Cf. Commonwealth v. Fernandes, 30 Mass. App. Ct. 335, 339 (1991) ("The codefendant's plea of guilty was not inconsistent with the defendant's guilt, for more than one person may possess the same narcotics").

3. Williams, the undercover officer in the transaction that resulted in the defendant's arrest, twice testified that in his opinion the defendant was a runner, i.e., "someone who brings customers to somebody who is selling." The defendant argues that this testimony was an inadmissible expression of opinion of his guilt.

A percipient police witness may also testify as an expert witness, though care should be taken in presenting such expert testimony: "It is easy for the line between specific observations and expert generalizations to become blurred in these situations." Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998). Such blurring occurred here. While it was certainly permissible for Williams to explain what function a runner performed in the street level sale of drugs, his testimony that he "believe[d]" the defendant was a runner "amount[ed] to a personal assurance by the witness that the crime charged had occurred, and thereby constitute[d] an improper intrusion into the fact-finding function of the jury." Id. at 580. The defendant, however, made no objection to the improper testimony.

Based upon the evidence presented, we conclude that Williams's statement, that he believed the defendant was a "runner," did not create a substantial risk of a miscarriage of justice. Williams testified about the defendant's participation in the transaction: the defendant took money from Williams and gave it to Bonilla; the defendant received a packet of heroin from Bonilla; and, after removing some of the heroin from the packet for himself, the defendant gave the rest to Williams. See Commonwealth v. Woods, 419 Mass. 366, 375-376 (1995) (where evidence gave rise to strong inference of defendant's participation in drug transaction, improper expert opinion that he was involved in drug sale was harmless).²

4. The defendant's motion for required findings of not guilty was properly denied. Williams testified that he saw Bonilla hand the defendant a small glassine packet. The defendant opened this packet and poured white powder from it into a fold of paper which he then gave to Williams. Chemical analysis later determined that the powder in the paper fold contained heroin. Considered in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), this evidence was sufficient to establish that the defendant distributed a perceptible amount of heroin.

Moreover, this direct evidence of distribution, taken with Williams's testimony that the defendant brought him to Bonilla, was sufficient to warrant an inference that the defendant intended to distribute the heroin he passed to Williams. The defendant's argument to the contrary ignores the evidence of his actual distribution of heroin to Williams. Evidence of actual distribution supports an inference of intent to distribute, and it is irrelevant that the quantity of drugs distributed was small. Compare Commonwealth v. Tripp, 14 Mass. App. Ct. 997 (1982).

The evidence was also sufficient to prove that the defendant was engaged in a joint venture with Bonilla to distribute heroin. The defendant asked for and took money from Williams and gave the money to Bonilla, took a packet of heroin from Bonilla, and gave part of its contents to Williams. "From this evidence a rational jury could have inferred not only that [the defendant] was available and willing to help [Bonilla], but also that he, in fact, did so." Commonwealth v. Blake, 428 Mass. 57, 64 (1998). The defendant's contention that "the Commonwealth failed to establish the necessary element of agreement or intent" borders on the frivolous.

5. The defendant alleges that his trial counsel was ineffective for failing to challenge the seating of a police officer on the jury. The trial judge seated the police officer after he answered affirmatively the question, "You feel you can be fair and impartial weighing the testimony of any police officers who testify?" At the point that this juror was seated, the defendant had used all six of the peremptory challenges allotted him. He did not seek to have the juror challenged for cause.

Defense counsel cannot be faulted for declining to challenge for cause the seating of the police officer. The Supreme Judicial Court has explicitly rejected the contention that occupation as a police officer would be grounds for such a challenge. Commonwealth v. Ascolillo, 405 Mass. 456, 460-461 (1989) ("We decline to adopt a rule that the mere fact that a prospective juror is a police officer, in the absence of a showing of prejudice or partiality, or connection with the particular facts involved at trial, would form the basis to sustain a challenge for cause"). See G. L. c. 234A, 3 ("No person shall be . . . excluded from serving as . . . a juror because of . . . [his or her] occupation").

Even had defense counsel saved a challenge but then declined to exercise it to remove the police officer, that decision could not be faulted. See Commonwealth v. Mello, 420 Mass. 375, 396 (1995) (in a case of arson and murder, court infers that counsel declined to challenge jurors who had relatives in law enforcement and firefighting because he was satisfied that they could be...