Commonwealth v. Vincent Mitchell. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-650
COMMONWEALTH
vs.
VINCENT MITCHELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was found guilty
of possession of cocaine with intent to distribute and
possession of heroin with intent to distribute. 1 On appeal, the
defendant argues that the motion judge erred by denying his
motion to suppress, that there was insufficient evidence to
1 These were lesser included offenses of possessing,
distributing, or intent to distribute 100 to 200 grams of
cocaine, in violation of G. L. c. 94C, § 32E (b) (3), and
manufacturing, possessing, distributing, or intent to distribute
thirty-six to 100 grams of heroin, in violation of G. L. c. 94C,
§ 32E (c) (2). During the trial, the Commonwealth dismissed one
count of possession of a firearm without complying with G. L.
c. 140, § 129C (possession of a firearm without an FID card), in
violation of G. L. c. 269, § 10 (h), and one count of failure to
secure a firearm. The defendant was found not guilty of four
counts of possession of a firearm without an FID card, one count
of possession of ammunition without complying with G. L. c. 140,
§ 129C, in violation of G. L. c. 269, § 10 (h); and four counts
of failure to secure a firearm, in violation of G. L. c. 140,
§ 131L.
convict him, that a fingerprint card admitted at trial was
impermissible hearsay, and that the trial judge erred in denying
his motion to strike testimony of a substitute chemist. We
affirm.
Discussion. 1. Motion to suppress. a. Background. 2 In a
search of 9 Falulah Street, Fitchburg (apartment), on September
9, 2016, law enforcement officers found heroin, "crack" cocaine,
paraphernalia for packaging narcotics, paperwork that bore the
name of the defendant or one of his codefendants, James Jones,
and numerous guns. The warrant authorizing the search listed
"documents pertaining to the occupancy of James Jones." The
warrant itself did not list documents pertaining to the
occupancy of the defendant. However, the affidavit in support
of the search warrant did include the "documents showing the
occupants of 9 Falulah Street" and identified the defendant as a
resident of the apartment. The defendant moved to suppress
items seized during the search, including documents establishing
his residency. 3
2 "We summarize the facts as found by the motion judge . . .
supplemented by evidence in the record that is uncontroverted
and that was implicitly credited by the judge" (quotation and
citation omitted). Commonwealth v. Jones, 100 Mass. App. Ct.
600, 601-602 (2022).
3 One item seized was a television displaying the name "Vincent"
on the screen. Given that names might appear on gaming systems,
sports equipment, pet name tags, and more, "documents" may be
unnecessarily limiting.
2
A hearing was held at which Trooper Ryan Dolan testified
and one exhibit was admitted. The parties agree that the
exhibit included the search warrant, the return on the search
warrant, the application for a search warrant, and an affidavit
of Dolan in support of the application. Dolan testified that
the affidavit in support of the search warrant was attached.
After a hearing, the motion judge agreed that the seizure of the
papers inferentially showing the defendant's occupancy at the
apartment exceeded the scope of the warrant. However, the
motion judge found that because "the affidavit accompanied the
warrant," if the defendant had been present, "he would have
known that the police were searching for his papers and other
'records' used for the distribution of narcotics." Thus, the
motion judge denied the defendant's motion to suppress such
paperwork.
b. Whether the search exceeded the scope of the warrant.
To the extent that the defendant's brief could be read to argue
there was no evidence the warrant itself was present at the time
of the search, "the defendant has waived this issue because it
was not raised in his motion to suppress, see Mass. R. Crim. P.
13 (a) (2), as appearing in 442 Mass. 1516 (2004), or at the
hearing on the defendant's motion to suppress." Commonwealth v.
Santos, 95 Mass. App. Ct. 791, 794 (2019). The only issue
properly before us is whether the judge's determination that the
3
affidavit was attached to the warrant and present during the
search was clearly erroneous.
For a search warrant to be valid under the Fourth Amendment
to the United States Constitution and art. 14 of the
Massachusetts Declaration of Rights, as well as G. L. c. 276,
§ 2, it must be supported by a showing of probable cause,
supported by oath or affirmation, and particularly describe the
property to be searched or seized. See Commonwealth v. Valerio,
449 Mass. 562, 566 (2007). While the typical remedy of a
warrant's failure to comply with the particularity requirement
is suppression, that is not always the case. Id. at 567. An
affidavit that is incorporated by reference to the warrant, and
physically attached to the warrant and present when the search
is executed "cures the particularity deficiency in the warrant
and, essentially, validates the warrant." Id. at 567-568.
"In reviewing a decision on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error but
conduct an independent review of [the] ultimate findings and
conclusions of law" (quotations and citation omitted).
Commonwealth v. Ramos, 470 Mass. 740, 742 (2015). "A finding is
clearly erroneous only when, although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
4
committed" (citation omitted). Commonwealth v. Carrasquillo,
489 Mass. 107, 117 (2022).
On this record, we cannot conclude that the motion judge's
finding that the affidavit was attached to the warrant and
present at the time of the search was clearly erroneous. The
motion judge credited the testimony of Dolan, who testified that
he wrote the affidavit and submitted it with the application for
the warrant. At the hearing, the search warrant return,
application for search warrant, and affidavit were all entered
as a single exhibit. Dolan described the exhibit as the
application for the search warrant and stated that the affidavit
was attached. While the testimony could have been more clear,
we cannot say that we are left with the definite and firm
conviction that a mistake was made when the judge inferred that
the affidavit was present at the time of the search. See
Carrasquillo, 489 Mass. at 117. Accordingly, the motion judge
did not err in concluding that seizure of documents bearing the
defendant's name was in the scope of the search warrant and
accompanying affidavit. 4
4 Even if the affidavit had not been present at the search, the
documents would still be admissible as they were in plain view
while police were properly searching for documents pertaining to
the occupancy of Jones. "Under [the plain view] doctrine, if
police are lawfully in a position from which they view an
object, if its incriminating character is immediately apparent,
and if the officers have a lawful right of access to the object,
they may seize it without a warrant." Commonwealth v. D'Amour,
5
2. Sufficiency of the evidence. The defendant argues that
there was insufficient evidence to link him to any drug
distribution operation at the apartment. 5 The defendant was not
present during the search. Thus, the Commonwealth proceeded on
a theory of constructive possession, which "requires proof that
the defendant had 'knowledge coupled with the ability and
intention to exercise dominion and control.'" Commonwealth v.
Than, 442 Mass. 748, 751 (2004), quoting Commonwealth v.
Sespedes, 442 Mass. 95, 99 (2004). Knowledge of the contraband
may be proven by circumstantial evidence. Than, supra.a. Standard of review. In reviewing a sufficiency
argument, we look at the evidence in the light most favorable to
the Commonwealth to determine whether any rational trier of fact
could have found the essential elements beyond a reasonable
doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
"[T]he evidence and the inferences permitted to be drawn
therefrom must be 'of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of (guilt)
beyond a reasonable doubt.'" Id. at 677, quoting Commonwealth
428 Mass. 725, 730–731 (1999), quoting Commonwealth v. Santana,
420 Mass. 205, 211 (1995). All that is required to justify the
presence of the police in the home is a valid search warrant,
which we undisputedly have here. D'Amour, supra.5 The defendant contests only the issue of possession; he does
not claim insufficient evidence of intent to distribute cocaine
and heroin.
6
v. Cooper, 264 Mass. 368, 373 (1928). A finding of guilty may
be warranted "even though the inference of guilt from the facts
established is not inescapable or necessary." Commonwealth v.
Anselmo, 33 Mass. App. Ct. 602, 604 (1992), quoting Commonwealth
v. Gagnon, 408 Mass. 185, 200-201 (1990).
No one particular item must prove beyond a reasonable doubt
that the defendant was guilty. Commonwealth v. Kapaia, 490
Mass. 787, 792 (2022). Instead, "while the pieces of evidence
outlined infra might not individually 'be sufficient to sustain
a conviction, together they formed a "mosaic" of evidence such
that the [fact finder] could [reasonably] conclude, beyond a
reasonable doubt, that the defendant'" possessed the narcotics.
Id., quoting Commonwealth v. Jones, 477 Mass. 307, 317 (2017). 6
b. Facts. The judge heard evidence that before execution
of the search warrant, the State police conducted surveillance
of the apartment for approximately three weeks. Law enforcement
observed multiple people who appeared to be drug users coming to
the house, staying a "short amount of time," and leaving. The
police used an informant to conduct three controlled buys inside
6 The defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and at the close of all of the
evidence. Because the defendant did not introduce evidence, the
Commonwealth's case did not deteriorate and the question is
whether the Commonwealth introduced sufficient evidence "to
satisfy a rational trier of fact of each element of the crime
beyond a reasonable doubt" (citation omitted). Commonwealth v.
Amado, 387 Mass. 179, 186 (1982).
7
the apartment. During this surveillance, Dolan observed the
defendant and his two codefendants leave the apartment.
During the search of the apartment, in the first bedroom on
the left, described by an officer as the "operations room of
. . . the [drug] distribution business," the police found
surveillance monitors, a television displaying the defendant's
first name on the screen, drug packaging materials, cash,
heroin, and cocaine. In the closet of the bedroom, the police
found a safe bolted to the floor. The door to the safe, which
was ajar, contained more cocaine and heroin, two firearms and
ammunition, and cash. The door to this room had a deadbolt lock
on it. 7 At the time of the search, the other codefendant, Eddie
McCloy, was in this first bedroom.
Detective Lieutenant Kenneth Heffernan, the unit commander
of the State police crime laboratory, analyzed five latent
fingerprints he found on the safe, four on its interior, as well
as one on the exterior. He uploaded enhanced photographs of the
fingerprints to the Automated Fingerprint Identification System
(AFIS), the fingerprint repository run by the State police.
7 The first bedroom was the only room that contained narcotics.
In total, the police found 106 grams of cocaine and sixty-three
grams of heroin in the first bedroom. In a second bedroom, the
police found a needle, several corner baggies, and two cell
phones on the bed; in a third bedroom, the police found two
cellphones, codefendant Jones, who had $4,325 on him, and $1,923
in a small black medical bag; and in the kitchen, the police
found two kitchen scales and packaging baggies.
8
Heffernan retrieved the defendant's fingerprint record from AFIS
and compared those fingerprints to the fingerprints found on the
safe. He opined that the four of the fingerprints on or in the
safe were "an identification" to fingerprints on an AFIS
printout bearing the defendant's name. The final print was
inconclusive. Heffernan testified that he compared the prints
on the safe to codefendant Jones and excluded him as the source.
While the 2014 fingerprint card bore the defendant's name and a
unique identification number, it did not contain the defendant's
signature. Heffernan stated that he matched the fingerprints to
the identification number on the card, not the name, as
arrestees can occasionally provide false identification.
Heffernan also testified that it was not possible to determine
when a fingerprint was placed on an object.
Detective Sergeant Christopher Bellofatto of the Fitchburg
police department testified that he arrested a man in 2014 who
identified himself as the defendant, and that he took that man's
fingerprints and uploaded them into AFIS. Bellofatto was asked
to identify the person he arrested in 2014. He then identified
codefendant Jones, not the defendant. 8
8 The record does not establish why the Commonwealth did not
prove that the defendant's fingerprints at the time of his
arrest in this matter were "an identification" with the
fingerprints found on the safe.
9
Papers seized in the apartment bore the defendant's name.
In a drawer in a bureau in the first bedroom, police found a job
application with the defendant's name on it with an address on
Rollstone Street. Also in the first bedroom, the police also
found one rent receipt in the name of "Vincent Martel" dated
January 6, 2016, and four receipts in the name of "C. James." 9
Elsewhere in the apartment, the police found a telephone bill
addressed to the defendant at the apartment dated August 19,
2016, which overlapped with the beginning of the police
investigation of the apartment. Police also found a Comcast
collection notice addressed to the defendant at the Rollstone
apartment dated July 5, 2016.
c. Sufficiency of the evidence of possession. Viewed in
the light most favorable to the Commonwealth, there was
sufficient evidence to permit a rational trier of fact to
conclude that the defendant constructively possessed the cocaine
and heroin with the intent to distribute.
"A defendant's 'residential status at a premises is a
relevant inculpatory factor to be considered in determining
whether he can be regarded as being in constructive possession
of contraband found on the premises, since it indicates more
than mere presence.'" Commonwealth v. Clarke, 44 Mass. App. Ct.
9 No party provided the receipts in the name of C. James so we do
not know the dates of those receipts.
10
502, 505 (1998), quoting Commonwealth v. Handy, 30 Mass. App.
Ct. 776, 781 n.5 (1991). See Commonwealth v. Lee, 2 Mass. App.
Ct. 700, 704 (1974) (constructive possession of cocaine found in
apartment supported by evidence that male defendant was seen
coming and going from apartment and his personal papers were
found therein as well as men's clothing).
Here, in the first bedroom in the apartment, police found a
safe, which also contained narcotics, covered in clothes. That
safe had four of the defendant's fingerprints on the interior
and exterior. Police also found the television displaying the
defendant's first name and paperwork in his name located in a
bureau in the first bedroom.
Other paperwork found elsewhere in the apartment connected
the defendant to the apartment. This included a telephone bill
that overlapped with the police surveillance of the apartment
and a rent receipt bearing the defendant's first name. The
defendant was seen at the apartment during the three weeks of
police surveillance. While it is true that police found
paperwork addressed to the defendant at a different address,
that was a cancellation of a Comcast account that was older than
the telephone bill. The judge reasonably could have inferred
that the documents with the Rollstone address, which were dated
earlier in time, were the defendant's prior residence, and the
telephone bill, which was closer in time, showed his address at
11
the time the search warrant was executed. Given this mosaic of
evidence, the judge could reasonably conclude, beyond a
reasonable doubt, that the defendant was in possession of the
narcotics. Kapaia, 490 Mass. at 792.
The defendant's challenges to pieces of the mosaic fail
because he does not view the evidence in the light most
favorable to the Commonwealth. For example, the defendant
argues that the documents do nothing more than show "mere
(intermittent) presence." In the light most favorable to the
Commonwealth, however, the documents show that the defendant
resided in the apartment and in the first bedroom. The
defendant's argument that there was insufficient evidence that
the fingerprints from 2014 on the printout from AFIS belonged to
him fails for the same reason. Notwithstanding that Bellofatto
identified Jones as the arrestee six years earlier, the judge
was not required to credit that view of the evidence. The
Commonwealth is entitled to reasonable inferences and the judge
could infer that the person arrested and fingerprinted in 2014,
who gave as his name the defendant's name, was the defendant. 10
10The defendant challenges some of the fingerprint evidence.
"[W]e consider even improperly admitted evidence" in determining
questions of sufficiency. Commonwealth v. Uriah U., 100 Mass.
App. Ct. 281, 286-287 (2021). In any event, we conclude the
evidence was not admitted improperly. See section 3, infra.
12
The defendant also contends that the evidence did not
support a finding beyond a reasonable doubt that the defendant's
fingerprints were the ones inside the safe, and that it was
impossible to know when they were left on the safe. However, no
one particular item must prove beyond a reasonable doubt that
the defendant was guilty. Kapaia, 490 Mass. at 792. Instead,
the judge could have reasonably concluded that the fingerprints
belonged to the defendant and they can be part of the mosaic of
evidence demonstrating that the defendant constructively
possessed the narcotics. See Commonwealth v. Lao, 443 Mass.
770, 779 (2005) ("If, from the evidence, conflicting inferences
are possible, it is for the [fact finder] to determine where the
truth lies, for the weight and credibility of the evidence is
wholly within their province").
Finally, the defendant's reliance on Commonwealth v.
Humphries, 76 Mass. App. Ct. 702, 702-703 (2010), is unavailing.
There, a defendant's drug convictions were reversed because the
defendant was not present at the time of the seizure, and the
only evidence linking him to the apartment where the drugs were
found was an identification card and an envelope addressed to
him. In contrast to the case here, both documents in Humphries
had a different address than the place where the drugs were
found and no other personal effects of the defendant were found
in the vacant bedroom. Id. at 703.
13
Accordingly, there was no error in denying the defendant's
motion for a required finding of not guilty.
3. Hearsay. The defendant argues that the trial judge
erred in admitting into evidence a fingerprint card for the
defendant from 2014 that had been uploaded into AFIS. He argues
that the fingerprint card was hearsay and that the Commonwealth
did not lay sufficient foundation for it to be admitted as a
business record. We disagree.
a. Standard of review. Where, as here, there was no
objection, our review is limited to determining whether an error
occurred and, if so, whether it created a substantial risk of a
miscarriage of justice. Commonwealth v. Aviles, 461 Mass. 60,
72 (2011). "A substantial risk of a miscarriage of justice
exists when we have 'a serious doubt whether the result of the
trial might have been different had the error not been made.'"
Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting
Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
b. Business record. "General Laws c. 233, § 78, as
amended by St. 1954, c. 87, § 1, provides in part that a record
made in the regular course of business 'shall not be
inadmissible . . . because it is hearsay.'" Commonwealth v.
Driscoll, 91 Mass. App. Ct. 474, 476-477 (2017). 11 A judge is
11"[A] document is admissible as a business record if the judge
finds that it was (1) made in good faith; (2) made in the
14
not required to make preliminary factual determinations
regarding foundation, as the decision to admit the record
implies those requisite findings. Commonwealth v. Andre, 484
Mass. 403, 410 n.13 (2020). "[I]t is presumed that the judge as
trier of fact applies correct legal principles." Commonwealth
v. Colon, 33 Mass. App. Ct. 304, 308 (1992).
Fingerprint cards can be admissible as a business record.
Commonwealth v. Fulgiam, 477 Mass. 20, 40-41 (2017). AFIS
printouts are generally "reliable" "based on the officers' duty
to ensure the [AFIS] cards are created with accurate
information, and the arrestees' legal obligation to provide
accurate information." Id. at 41. Although it is best practice
to verify that the person being fingerprinted is who he claims
to be, "the presence or absence of independent verification
bears on the weight of the record rather than its admissibility
under the business records exception." Id. at 41-42. 12
Here, a proper foundation for admission was laid. Based on
the testimony of Bellofatto about the process of fingerprinting
an arrestee and how those fingerprints are uploaded into AFIS,
regular course of business; (3) made before the action began;
and (4) the regular course of business to make the record at or
about the time of the transaction or occurrences recorded."
Driscoll, 91 Mass. App. Ct. at 479, quoting Beal Bank, SSB v.
Eurich, 444 Mass. 813, 815 (2005).
12 While the AFIS printout is missing the defendant's signature,
that also goes to the weight of the evidence. Fulgiam, 477
Mass. at 42.
15
and the testimony of Heffernan about the process of retrieving
the AFIS printout and comparing the fingerprints on the AFIS
card to the fingerprints on the safe, the trial judge could have
reasonably concluded that the AFIS printout was made in good
faith, and in the regular course of business. Similarly, the
judge could have found that it was the regular course of
business to make the record at or about the time of the
transaction or occurrences recorded. Finally, the record was
made before the action began, as the fingerprint images were
added into AFIS two years prior to the defendant's arrest. As a
result, the judge did not abuse his discretion in admitting the
2014 fingerprint record. See Andre, 484 Mass. at 411. Given
that there was no error, there was no substantial risk of a
miscarriage of justice. Randolph, 438 Mass. at 303.
4. Chemist's testimony. At trial, a substitute chemist
testified in place of the testing chemist and identified the
substances found in the apartment as illegal narcotics. The
defendant objected to the substitute chemist's testimony,
claiming that while he was provided the certificate of analysis,
he had not received the underlying data that supported the
expert's opinion, which the Commonwealth was required to produce
pursuant to Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444
Mass. 1501 (2005). The judge initially sustained the objection,
requiring the Commonwealth to lay further foundation. After
16
doing so, the Commonwealth renewed its questioning regarding the
chemist's opinion, and the defendant once again objected,
claiming there was a written report that he believed to be
mandatory discovery. The judge overruled the objection.
On appeal, the defendant argues that he was denied a
meaningful opportunity to cross-examine the substitute chemist's
opinion on the chemical composition of the narcotics because the
reports from which the drug certificates were produced were not
provided during mandatory discovery. "[D]iscovery matters are
committed to the sound discretion of the trial judge" (citation
omitted). Commonwealth v. Gelfgatt, 468 Mass. 512, 519 n.11
(2014). "We will uphold discovery rulings unless the appellant
can demonstrate an abuse of discretion that resulted in
prejudicial error" (citation omitted). Id. 13
Rule 14 (a) (1) (A) (vi) of the Massachusetts Rules of
Criminal Procedure, as amended, 444 Mass. 1501 (2005), requires
mandatory discovery for a defendant of "[i]ntended expert
13The defendant contends that his constitutional right to cross-
examine the witness was denied, which is a constitutional error
that must be reviewed for harmless error. However, the
defendant had ample opportunity to cross-examine the substitute
chemist, who was cross-examined on two separate days of trial.
Because the judge did not limit the defendant's opportunity to
cross-examine the substitute chemist, there was no
constitutional error. See Commonwealth v. Williams, 456 Mass.
857, 873 (2010) ("a judge may limit the scope of cross-
examination as long as he or she does not completely bar inquiry
into a relevant subject").
17
opinion evidence . . . includ[ing] the identity, current
curriculum vitae, and list of publications of each intended
expert witness, and all reports prepared by the expert that
pertain to the case." See Commonwealth v. Crapps, 84 Mass. App.
Ct. 442, 447 n.7 (2013). "A certificate of chemical analysis
falls within the ambit of the Commonwealth's rule 14 discovery
obligations." Commonwealth v. Butler, 87 Mass. App. Ct. 183,
186 (2015).
The testimony at trial did not show that there were any
additional reports that the Commonwealth failed to disclose.
The defendant admitted that he received the required certificate
of analysis. The Commonwealth contends, and the chemist's
testimony reflects, that she was using the terms "report" and
"certificate" interchangeably. And the defendant is not arguing
that the chemist failed to turn over the underlying graphs or
reports, but instead a report that would have been subject to
mandatory disclosure, such as the certificate of analysis.
Because there is no evidence of a report that was not produced,
we discern no error. See Commonwealth v. Sanders, 451 Mass.
290, 296 (2008) (evidence was insufficient to support
defendant's claim that Commonwealth violated discovery
18
obligation when "there [was] no evidence in the record that such
a report existed").
Judgments affirmed.
By the Court (Wolohojian,
Henry & Hershfang, JJ. 14),
Clerk
Entered: August 14, 2023.
14 The panelists are listed in order of seniority.
19