Commonwealth v. Rosario , 90 Mass. App. Ct. 570 ( 2016 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
15-P-752 Appeals Court
15-P-753
COMMONWEALTH vs. CARLOS ROSARIO (and a companion case1).
Nos. 15-P-752 & 15-P-753.
Essex. May 17, 2016. - October 26, 2016.
Present: Cypher, Blake, & Henry, JJ.
Controlled Substances. Practice, Criminal, Identification of
defendant in courtroom, Required finding, Disclosure of
evidence. Constitutional Law, Identification. Due Process
of Law, Identification. Evidence, Identification, Chain of
custody, Disclosure of evidence, Cross-examination.
"School Zone" Statute.
Complaints received and sworn to in the Lawrence Division
of the District Court Department on May 16, 2014.
The cases were tried before Mark A. Sullivan, J.
Daniel K. Sherwood for Carlos Rosario.
Stephen E. Meltzer for Lylibeth Rosario.
Quentin Weld, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. In this consolidated appeal, the defendants,
Carlos Rosario and Lylibeth Rosario, appeal from their
1
Commonwealth vs. Lylibeth Rosario.
2
convictions for distribution of heroin in violation of G. L.
c. 94C, § 32(a), and a drug violation near a school or park in
violation of G. L. c. 94C, § 32J. In addition, Carlos2 was
charged with possession of heroin in violation of G. L. c. 94C,
§ 34. The defendants filed a motion in limine to exclude any
in-court identification of the defendants, which was denied.
They argue that the trial judge committed error by admitting the
confidential informant's in-court identification in the absence
of any pretrial identification procedure. They also argue that
the chain of custody was inadequate to connect the drug evidence
presented at trial to this case and, therefore, the evidence was
insufficient to prove the drug charges beyond a reasonable
doubt. Lylibeth also argues that she was not given pretrial
notice of a map offered by the Commonwealth and admitted in
evidence that supported the school zone charge. We affirm both
defendants' convictions.
1. Background. On May 15, 2014, the Lawrence police
department's drug enforcement unit (unit) was conducting
supervised controlled buys with the assistance of a paid
confidential informant named William Demers. Detective Carmen
Purpora searched Demers and the female who accompanied him for
money and contraband before each controlled buy and then gave
2
We refer to the defendants by their first names to avoid
confusion.
3
Demers marked currency to complete the drug transactions.
Detective Purpora and Demers agreed that Demers would take off
his hat and place it by his side to signal that a drug
transaction had taken place.
That morning, Demers and the unit completed two controlled
buys between 9:00 A.M. and 12:00 P.M. At around 1:00 P.M.,
Demers and his female companion drove to the corner of Water and
Melrose Streets in Lawrence to conduct another controlled buy.
Demers, who was under surveillance by the unit, exited his car
and stood beside it for about ten minutes before he was
approached by Carlos. Carlos initiated the drug transaction and
asked Demers to follow him to a house across the street at 129
Water Street. Detective Purpora and Demers saw a woman standing
outside the house who was later identified as Lylibeth, Carlos's
mother. Carlos, Lylibeth, and Demers walked inside the house to
the kitchen where Carlos asked Lylibeth to give Demers the
drugs. Lylibeth left the room and returned a minute later with
a scale and a bag of heroin. Demers gave twenty dollars to
Carlos for the bag of heroin then left. Demers was in the house
for approximately three to four minutes. After leaving the
house, Demers signaled to the unit that a drug transaction had
occurred.
Following the controlled buy, Demers drove to a prearranged
location where Demers, the woman accompanying him, and his
4
vehicle were all searched. At that time, Demers handed
Detective Purpora a plastic bag containing a brown substance
that the detective believed was heroin. Detective Purpora
radioed other officers and told them to place the defendants in
custody. When Carlos was placed in custody, the police found
two additional plastic bags containing brown powder in his
possession.
Later that day, Detective Purpora brought the three plastic
bags of brown powder to the Lawrence police department. There,
he logged the narcotics on an evidence sheet, placed the
narcotics into a heat sealed bag, put the sealed bag into a
yellow manila envelope, and placed that envelope into an
evidence locker. At trial, Detective Purpora testified that the
manila envelope was labeled with the log number referring to the
case, 14-003794, the names of both defendants, and his name.
Log number 14-003794 also corresponds to a detailed police
report of the controlled buy.
Sarah Clark, a scientist in the Massachusetts State police
forensic services group, testified that on August 5, 2014, she
analyzed the samples from the evidence seized at the controlled
buy and confirmed they contained heroin and cocaine.3
3
She also testified in detail regarding the lab's intake
procedure and the use of unique numbers to help identify the
cases that were in the drug vault.
5
Lawrence city engineer Theodoro Rosario testified that the
distance between the house at 129 Water Street and the Boys and
Girls Club at 136 Water Street is fifty feet, indicating that it
was within a school zone.
2. Discussion. a. In-court identification. The
defendants' pretrial motion in limine to exclude their in-court
identification by Demers was denied. They appeal, arguing that
the new standard for in-court identification established in
Commonwealth v. Crayton, 470 Mass. 228, 241 (2014), should be
applied: "Where an eyewitness has not participated before trial
in an identification procedure, we shall treat the in-court
identification as an in-court show up, and shall admit it in
evidence only where there is 'good reason' for its admission."
The Supreme Judicial Court announced a prospective rule in
Crayton to be applied in trials that commence after the issuance
of the opinion on December 17, 2014. See id. at 241-242.
Because the defendants' trial took place before the issuance of
Crayton, the prospective rule does not apply and, instead, we
evaluate the alleged errors under the law at the time of the
trial. See Commonwealth v. Bastaldo, 472 Mass. 16, 31 (2015).
"We recognize that a degree of suggestiveness inheres in
any identification of a suspect who is isolated in a court room.
Nevertheless, such isolation does not, in itself, render the
6
identification impermissibly suggestive." Commonwealth v.
Napolitano, 378 Mass. 599, 604 (1979), abrogated by Crayton.
Prior to Crayton, long standing case law held that an in-court
identification was excluded only where "it is tainted by an
out-of-court confrontation . . . that is 'so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.'" Commonwealth v. Carr, 464
Mass. 855, 877 (2013), quoting from Commonwealth v. Choeurn, 446
Mass. 510, 520 (2006). See Simmons v. United States, 390 U.S.
377, 384, (1968). "An in-court identification was admissible in
the absence of any prior out-of-court confrontation." Bastaldo,
supra. Here, the first time Demers made a formal identification
of the defendant was in court during his testimony. Demers'
only out-of-court encounter with the defendants took place
during the controlled buy. Demers met Carlos on the street
outside of his home in broad daylight then proceeded to his
apartment where he spent three to four minutes with Carlos and
Lylibeth while completing the drug transaction. Demers spoke
with both defendants and had an opportunity to view them from
both inside and outside the house for an extended period of
time. There was nothing suggestive about the controlled buy
with the defendants that would create a substantial likelihood
of irreparable misidentification in court.
7
The defendants also argue that even if Crayton is not
applied, "[c]ommon law principles of fairness dictate that an
unreliable identification arising from . . . especially
suggestive circumstances . . . should not be admitted."
Commonwealth v. Jones, 423 Mass. 99, 109 (1996). As discussed
above, there was nothing unreliable about Demers' opportunity to
observe the defendants.
Other arguments regarding the in-court identifications
relied on by the defendants, "but not discussed in this opinion,
have not been overlooked. We find nothing in them that requires
discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
There was no error in the admission of Demers' in-court
identification.
b. Sufficiency of evidence. The defendants moved for a
required finding of not guilty at the close of all of the
evidence. Additionally, Carlos filed a posttrial motion for
required findings. In reviewing the denial of a motion for a
required finding, we examine the relevant evidence in the light
most favorable to the Commonwealth and ask whether "any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Commonwealth v. Latimore, 378
Mass. 671, 677 (1979).
i. Chain of custody. The defendants argue that there was
an insufficient chain of custody to connect the substance seized
8
from the controlled buy to the heroin presented at trial. In
reviewing the sufficiency of the evidence, we must determine
whether the evidence presented supports a finding that the
defendants knowingly or intentionally distributed heroin and
whether Carlos knowingly possessed heroin.
Detective Purpora testified that he conducted two other
controlled buys on May 15, 2014, culminating with the one in
question. He stated that the controlled buy from the defendants
took place at 129 Water Street at around 1:00 P.M. However, the
evidence submission form, which was completed to accompany the
contraband to the laboratory, referred to the general time and
area where the controlled buys were conducted as 12:00 P.M. and
"50 Broadway Street." The defendants view this as a fatal
defect. Detective Purpora, however, had distinguished the three
bags seized from the defendants from the contraband seized at
the other controlled buys by writing the defendants' names on
the envelope containing the heroin. Clark analyzed the contents
of the envelope with the defendants' names on it and confirmed
that the plastic bags seized were in fact heroin. An item of
real evidence must be authenticated or identified as the thing
the proponent represents it to be. See Commonwealth v. LaCorte,
373 Mass. 700, 704, (1977). "If the object is one the witness
can particularly identify, it will be sufficient, see
Commonwealth v. Andrews, 403 Mass. 441, 462 (1988), if not, it
9
becomes necessary for the witness to have placed an identifying
mark or label thereon or to otherwise create a 'chain of
custody' that will help authenticate the item." Commonwealth v.
Herring, 66 Mass. App. Ct. 360, 365 (2006). Detective Purpora
testified about where and how he seized the heroin. He also
testified about the retention of the heroin and the delivery of
it to the Massachusetts State police forensic services group.
Finally, Clark testified as to its identity and quantity. The
evidence is sufficient to permit a finder of fact to conclude
that the evidence seized was in fact collected from the
defendants during the controlled buy, that they knowingly
distributed the heroin, and that Carlos knowingly possessed it.
"[A]lleged defects in the chain of custody usually go to
the weight of the evidence and not its admissibility."
Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992).
The judge allowed the defendant to suggest to the jury in his
opening statement, in cross-examinations of multiple witnesses,
and in his closing argument that the alleged defect in the chain
of custody should result in an acquittal. This testimony was
sufficient to permit a finder of fact to conclude that the
defendants committed the charged offenses.
c. School zone violation. Finally, Lylibeth argues that
the judge erred by allowing the Commonwealth to admit a map and
expert testimony about the map because the Commonwealth did not
10
provide notice of its intent to do so. The defendant preserved
the issue for appeal with a timely objection. Therefore we
review the error, if any, to determine if it prejudiced
Lylibeth. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
The Commonwealth did not provide the defendants with
pretrial notice of the map that was admitted in evidence through
the city engineer's testimony. However, the defense had the
opportunity to extensively cross-examine the engineer about the
map certification process as well as the reliability of the map.
"Where a defendant is able to cross-examine a witness
extensively, prejudice is 'effectively' removed." Commonwealth
v. Molina, 454 Mass. 232, 236-237 (2009). Additionally, it is
unlikely the defendant could show prejudice in light of the fact
that she was on notice from the time of her indictment that the
Commonwealth intended to prosecute the school zone violation.
"There must be a demonstration of how the information would have
aided the defendant 'in preparing and presenting' [her] case."
Id. at 236, quoting from Commonwealth v. Stote, 433 Mass. 19, 25
(2000). In measuring prejudice to a defendant when the
prosecution has delayed its disclosure of evidence prior to
trial, "it is the consequences of the delay that matter, not the
likely impact of the nondisclosed evidence." Stote, supra at
23, quoting from Commonwealth v. Wilson, 381 Mass. 90, 114
(1980). Furthermore, the Commonwealth outlined the anticipated
11
substance and basis of the engineer's testimony in their opening
statement and Lylibeth did not object. We conclude there was no
error in the admission of the map and related testimony, but if
there was, it was not unfairly prejudicial.
Judgments affirmed.