Commonwealth v. Best

740 N.E.2d 1065, 50 Mass. App. Ct. 722, 2001 Mass. App. LEXIS 13
CourtMassachusetts Appeals Court
DecidedJanuary 19, 2001
DocketNo. 99-P-827
StatusPublished
Cited by10 cases

This text of 740 N.E.2d 1065 (Commonwealth v. Best) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Best, 740 N.E.2d 1065, 50 Mass. App. Ct. 722, 2001 Mass. App. LEXIS 13 (Mass. Ct. App. 2001).

Opinion

Porada, J.

The defendant was convicted, in a District Court jury trial, of distribution of heroin. Among his several claims of error on appeal, he argues that the judge erred in allowing a police officer to testify to a codefendant’s prior arrest for a drug offense and in allowing a police officer to testify to the defendant’s daily presence in an area where the police officers conduct sweeps for drug dealers and make the majority of their arrests for drug offenses. The defendant also claims that the judge erred in admitting in evidence the police report pertaining to the defendant’s arrest and the bag of heroin allegedly sold by the defendant and in excluding from evidence photographs of the crime scene. Finally, the defendant asserts that the prosecutor committed reversible error in his closing argument. We affirm the judgment.

We summarize the evidence presented to the jury. Officers Roy Frederick and George Cardoza, members of the Boston police department’s drug control unit, were conducting a surveillance of the Dudley triangle area in the Roxbury section of Boston on October 31, 1994, at about 6:00 p.m. Frederick was seated in the passenger’s seat, and Cardoza was driving. As their unmarked car came down Ziegler Street, Frederick saw two people whom he knew at the comer of Ziegler Street and Harrison Avenue. One was David Montero,1 whom Frederick knew from a prior arrest for possession of heroin, and the other was the defendant, with whom Frederick had grown up and whom he had seen almost every day in that area. As the officers drove by, Frederick, who was about three feet from where Montero and the defendant were standing, saw Montero hand the defendant an unspecified amount of currency, which the defendant took. The defendant then handed Montero a clear, light-colored glossine bag containing white powder, which Montero grasped in his right hand. Cardoza also saw the exchange between Montero and the defendant but did not see what the defendant handed Montero. After the exchange, the defendant and Montero walked down Ziegler Street toward Warren Street in the direction from which the officers had come.

The officers then drove away, parked their unmarked car on a neighboring street, and waited on foot on Warren Street for the [724]*724two men to approach. When they spotted Montero, Frederick seized him and searched him. In Montero’s right fist, Frederick found a light-colored glossine bag with white powder, which appeared to be the same one that he had seen the defendant hand Montero. Montero was placed under arrest for possession of heroin. Frederick and Cardoza then proceeded to search for the defendant but did not find him. The defendant was arrested on a warrant some two weeks later. The white powder seized from Montero was subsequently analyzed as heroin.

On cross-examination of Frederick, the defendant posed questions about whether Frederick disliked the defendant because Frederick felt the defendant had been a bad influence on Frederick’s brother. Frederick denied that he disliked the defendant and testified that he did not know whether the defendant had been a bad influence on his brother.

The defendant’s sister, who testified on his behalf, stated that the defendant stayed with her for three days beginning on October 30, 1994, because he was seriously ill and that, during that period, he just lay around her house and drank soup. She also testified that October 31, 1994, was a Tuesday and that she would have arrived home from work shortly after 5:00 p.m., at which time the defendant was at home with her and remained there. When shown a calendar which indicated that October 31, 1994, was a Monday, however, she admitted that she would not have arrived home until shortly after 7:00 p.m. but that her son had told her that the defendant had been home all day on that date.

The defendant failed to appear for the second day of the trial, and the judge instructed the jury that, if the Commonwealth proved that the defendant had knowingly absented himself from the trial, the jury were permitted, but not required, to draw an inference against the defendant.

We now address each of the defendant’s claims of error.

1. Evidence of codefendant’s prior drug arrest. In response to an inquiry whether Officer Frederick recognized the person with the defendant, Frederick responded, “It’s a gentleman who we had arrested prior.” There was no objection to the answer or motion to strike the answer. Then the prosecutor queried Frederick anew whether he had arrested Montero before. Frederick responded: “[approximately two months before.” At that point defense counsel objected, and an inaudible sidebar followed. Subsequent to the sidebar, the judge allowed the officer to testify [725]*725that Montero had been arrested a month or two before. Following this testimony the prosecutor asked what Montero had been arrested for, and Frederick responded it was for possession of a Class A drug, heroin. The defendant did not object to this answer or move to strike. In subsequent testimony over the objection of the defendant, Frederick also testified that, following Montero’s arrest on October 31, 1994, Montero had been found guilty of possession of heroin.

The defendant argues that this evidence was inadmissible because it was hearsay or evidence of a prior bad act. The Commonwealth concedes that it should not have been admitted but argues instead that it was not prejudicial. There is no question that the police officer should not have been permitted to testify that the codefendant had a prior arrest for possession of heroin. See Commonwealth v. Kennedy, 426 Mass. 703, 709 n.5 (1998) (while evidence of a prior arrest of a codefendant may be admissible at a motion to suppress hearing in determining probable cause to arrest the defendant, such evidence would not be admissible at trial to establish the defendant’s guilt). See also Brinegar v. United States, 338 U.S. 160, 173-174 (1949). Such evidence tainted the defendant with guilt by association and was not relevant to prove the defendant distributed heroin. Because the defendant, however, did not object to the officer’s initial testimony that Montero had a prior arrest or to his subsequent testimony identifying the arrest as one for possession of heroin, our standard of review is one of substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We must then decide whether the admission of this evidence materially influenced the jury’s verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

We conclude that this evidence would have had but very slight effect upon the jury’s verdict because of the strength of the Commonwealth’s case, Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and would not have damaged the alibi defense advanced by the defendant, Commonwealth v. Anderson, 396 Mass. 306, 316 (1985). Here, two experienced police officers testified that they saw die defendant, whom they knew and recognized, hand an object to Montero in exchange for money. Minutes later, Frederick seized a glossine bag from Montero’s right hand. Frederick recognized the bag as the same one he had seen the defendant hand to Montero, who took it in his right hand. The bag contained heroin. Frederick testified that [726]*726the exchange between the defendant and Montero was consistent with the purchase of drugs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Ricardo Calvo, Jr.
Massachusetts Appeals Court, 2024
Commonwealth v. Kimell
122 N.E.3d 1099 (Massachusetts Appeals Court, 2019)
Commonwealth v. Dancy
912 N.E.2d 525 (Massachusetts Appeals Court, 2009)
Commonwealth v. Martinez
905 N.E.2d 592 (Massachusetts Appeals Court, 2009)
Commonwealth v. Walker
866 N.E.2d 958 (Massachusetts Appeals Court, 2007)
Care & Protection of Sophie
865 N.E.2d 789 (Massachusetts Supreme Judicial Court, 2007)
Commonwealth v. McCoy
795 N.E.2d 1183 (Massachusetts Appeals Court, 2003)
Commonwealth v. Seap Sa
790 N.E.2d 733 (Massachusetts Appeals Court, 2003)
Commonwealth v. Philyaw
774 N.E.2d 659 (Massachusetts Appeals Court, 2002)
Commonwealth v. Siano
755 N.E.2d 324 (Massachusetts Appeals Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
740 N.E.2d 1065, 50 Mass. App. Ct. 722, 2001 Mass. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-best-massappct-2001.