COMMONWEALTH v. RODRIGUEZ, 67 Mass. App. Ct. 636 (2006)
855 N.E.2d 1113
COMMONWEALTH v. JOEL RODRIGUEZ.[fn1].
No. 05-P-680.
Appeals Court of Massachusetts.
Hampden.
May 4, 2006.
October 30, 2006.
[fn1] Also known as Joel Rodriguez Colon.
Present: ARMSTRONG, GREEN, & KATZMANN, JJ.
Controlled Substances. Electronic Surveillance. Search and
Seizure, Electronic surveillance, Expectation of privacy.
Constitutional Law, Search and seizure, Privacy. Privacy. Practice,
Criminal, Argument by prosecutor, Appeal, Admissions and confessions,
Instructions to jury. Evidence, Admissions and confessions.
At a criminal trial, the admission of evidence of a conversation
gathered by police through warrantless electronic surveillance did not
create a substantial risk of a miscarriage of justice, where the
defendant lacked a reasonable expectation of privacy in the
conversation, which exclusively concerned a business transaction, was
engaged in by two individuals (the defendant and another) who were not
close friends, and took place in a private residence over which the
defendant did not have control. [639-644]
A criminal defendant failed to demonstrate that the prosecutor
improperly used rebuttal evidence for a substantive purpose in his
closing argument at trial. [645]
A criminal defendant could not raise, for the first time on appeal, an
argument that the Commonwealth had violated the provisions of G. L. c.
272, § 99 O 2, which outlines service procedures for certain wiretap
evidence. [645-646]
A Superior Court judge did not err in denying a criminal defendant's
motion to suppress a statement that he made while refusing to cooperate
with the police, where the statement was not sufficient to qualify as an
invocation of a right to cut off questioning, and where, even if the
initial statement was a sufficient invocation of the defendant's right
to remain silent, his subsequent inculpatory remarks were spontaneous
and without provocation, and any error in their admission was cured by
the judge's limiting instruction. [646-648]
At a criminal trial, the judge's instructions to the jury regarding
the "bringing into" theory of cocaine trafficking, which deviated from
the statutory language, were advantageous to the defendant and did not
create error [648-649]; further, the evidence presented at trial was
sufficient to warrant the defendant's conviction on both this theory
(even under the higher standard imposed by the jury instructions)
[649-650] and the theory of possession with intent to distribute, and
there was therefore no merit to the
Page 637
defendant's contention that it was error to submit a general
verdict form to the jury [650].
INDICTMENT found and returned in the Superior Court Department
on February 25, 2003.
The case was tried before Bertha D. Josephson, J.
Beth L. Eisenberg, Committee for Public Counsel Services, for
the defendant.
Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.
ARMSTRONG, J.
A jury convicted the defendant of trafficking in cocaine in
excess of 200 grams. G.L. c. 94C, § 32E(b)(4). The case
involved the delivery of a package from Barranquilla, Colombia,
that contained cocaine carefully concealed inside a bicycle
frame. On appeal the defendant argues that (1) it was error to
admit in evidence a conversation gathered through warrantless
electronic surveillance; (2) the judge improperly denied his
motion to suppress a statement that he made to the police after
his arrest; and (3) his motion for a required finding of not
guilty should have been granted as to the second theory of
trafficking submitted to the jury, and because it was impossible
to determine on which theory the jury's verdict was based, his
conviction must be reversed.
Background. On January 28, 2003, an official from the
United States Customs Service notified Massachusetts State police
Sergeant John Michel, a member of the Hampden County narcotics
task force, that they had intercepted a package containing
illegal narcotics. The way-bill indicated that it was sent from
Barranquilla, Colombia. The box contained a bicycle frame within
which cocaine was secreted and was addressed to Pedro Tirado, 5
Ardmore Street, Springfield. Sergeant Michel obtained an
anticipatory search warrant for 5 Ardmore Street, and the task
force executed a plan to tender delivery of the package to Tirado
on January 29.
On that date, Trooper Michael Joselyn posed as a delivery
person from DHL delivery service and arrived at 5 Ardmore Street
at about 11:30 A.M. He knocked on the front door with the package
in hand and was greeted by a woman who called to
Page 638
Tirado. Trooper Joselyn informed Tirado that he had a package for
him. Tirado signed for the package after confirming that it was
addressed to him. About fifteen minutes later the police executed
the search warrant. Officers used a battering ram to enter the
apartment after receiving no response at the front door and found
Tirado sleeping in a bedroom with his wife. Tirado was
handcuffed, was given Miranda warnings, and was told that he was
in trouble. He volunteered to cooperate.
Tirado denied that the package belonged to him and gave police
the following account of how he had come to possess it. About a
week to a week and one-half earlier, Tirado explained, the
defendant offered to pay him $400 if he would accept delivery of
a package. Tirado said the defendant was an acquaintance he had
met through a mutual friend only a couple of months earlier.
Tirado was unemployed, drug-addicted, and dependent upon Social
Security benefits. He accepted the defendant's proposal because
it included an offer of cash. The defendant explained how and
when the package would arrive, but did not disclose the nature of
its contents. The defendant instructed Tirado to dial his
cellular telephone number after he received it and told him he
would be paid when "everything was all right."
When Tirado concluded his story, the police had him place a
telephone call to the defendant. Officer Aurelio Garcia stood
nearby and could hear the defendant talking to Tirado.[fn2]
The defendant told Tirado that he would pick up the package.
Tirado gave the defendant directions to 5 Ardmore Street because
the defendant had never previously visited the address.
While awaiting the defendant's arrival, Officer Garcia placed
an electronic monitoring device inside Tirado's shirt pocket. An
accompanying device was put inside Trooper Juan Colon's vehicle,
parked outside the apartment, to enable the monitoring and
recording of Tirado's communications. Trooper Colon later
discovered that the volume control on the recording device had
Page 639
been set too low to produce an audible recording, but he was able
to hear the defendant's conversation with Tirado as it unfolded
through the speaker.
The defendant took a taxicab to 5 Ardmore Street. The taxicab
parked in front of the address and the taxicab's trunk popped
open. The defendant got out of the vehicle and met Tirado at the
front door. The two men entered the apartment and walked to where
the package was located. The defendant "grabbed" the package and
paid Tirado $200, telling him that he would pay the remaining
$200 balance later. Tirado testified that he asked the defendant
to open the package, but the defendant said that he did not have
enough time. As the defendant started to leave the apartment with
the package, he got a phone call and asked Tirado to carry the
package outside. Tirado declined, telling the defendant, "[I]t's
your package." The defendant ended the phone call and continued
out the door. He had spent no more than ten minutes in the
apartment.
The defendant reached the trunk of the taxicab and was placing
the package inside when four officers appeared, yelling "police"
in both English and Spanish. The defendant looked at the officers
before fleeing on foot, but he was quickly brought to the ground
and, after a brief struggle, handcuffed. A search of the
defendant revealed three small bags of marijuana, a cellular
telephone, and just over $1,000 in cash. Officer Garcia then read
the defendant Miranda warnings before transferring him to the
Springfield police station.
Inspection of the package revealed a bicycle frame, which when
pried open was found to contain almost 900 grams of seventy-one
percent pure cocaine.
a. Admission of evidence gathered through warrantless
electronic surveillance. At trial, the defendant testified and
denied any prior arrangement with Tirado involving the delivery
of the package. The defendant claimed that he first learned of
the package on the morning of his arrest, when Tirado called to
ask for a favor. According to the defendant, Tirado asked him to
pick up the package because he could not keep it at his home due
to a problem with his wife. As for the $200 that was exchanged,
the defendant testified that Tirado asked to borrow
Page 640
the money and that he reluctantly agreed only when Tirado
promised to pay him back.
In rebuttal, the Commonwealth called Trooper Colon, who had
used the electronic device to monitor the conversation inside 5
Ardmore Street. Trooper Colon, working from memory, testified
that he heard Tirado ask the defendant, "How much are you going
to pay me?" and the defendant responded, "Four hundred." Next,
Colon heard "money being counted out." Colon testified that he
did not hear Tirado ask for a loan, nor did he hear Tirado
promise to repay the defendant.
1. Article 14 claim. The defendant argues on appeal that
admission in evidence of Colon's recollection of the
electronically intercepted conversation violated the defendant's
rights under art. 14 of the Massachusetts Declaration of Rights.[fn3]
According to the defendant, the police should
have obtained a warrant before intercepting the conversation that
took place in the apartment in which Tirado was staying.
Contrary to the defendant's contention on appeal, this issue
was not preserved below. As the Commonwealth correctly points
out, the defendant only posited a general objection to such
testimony during a bench conference that focused on scheduling
concerns rather than resolution of any substantive issue.
Immediately after the Commonwealth rested, the judge asked
defense counsel whether he had any additional evidence and how
much time he would need. When counsel told the judge that he
intended to call the defendant, the prosecutor alerted the judge
to the possibility that he would call three rebuttal witnesses.
The witnesses would testify to three conversations, respectively,
including a conversation the defendant had in jail, a
conversation the defendant had on the telephone with Tirado, and
the conversation in Tirado's apartment that Colon monitored
Page 641
with electronic surveillance equipment. The judge explicitly
stated that she was not prepared to rule on the admissibility of
such conversations during the bench conference, and defense
counsel responded that he would raise his objections "with the
court later."
When the testimony was presented at trial, the defendant
objected once, when the prosecutor posed a question that
purportedly asked the witness to speculate. No other objection
was forthcoming, nor did the defendant present his claim in a
motion to suppress.[fn4] Therefore, error, if any, in the
admission of the evidence may only be reviewed to determine if it
created a substantial risk of a miscarriage of justice. See
Commonwealth v. Zinser, 446 Mass. 807, 808 (2006) ("Allclaims, waived or not, must be considered"); Commonwealth v.
Miranda, 22 Mass. App. Ct. 10, 18-19 & n. 20 (1986)
(unobjected — to constitutional error subject to substantial risk
standard of review).
To challenge the propriety of the warrantless seizure of
evidence under art. 14, the defendant bears the burden of showing
that he "had a subjective expectation of privacy in the object of
the challenged search that society is willing to recognize as
reasonable." Commonwealth v. Eason, 427 Mass. 595, 599
(1998). See Commonwealth v. Pina, 406 Mass. 540, 544-545
(1990); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991).
If we concede for present purposes that the defendant may have
had a subjective expectation of privacy in his conversation with
Tirado while he was in the apartment, the remaining question is
whether society is prepared to accept that expectation as
reasonable.
The defendant argues that because the conversation at issue
took place in a private home, the expectation of privacy was a
reasonable one, and therefore a warrant was required under the
principles articulated in Commonwealth v. Blood,
400 Mass. 61,
Page 642
66-67 (1987).[fn5] The defendant interprets the Blood
decision as bringing within the protective reach of art. 14 any
conversation that takes place in any private home. While there is
some language in Blood that intimates such a broad reading of
art. 14, id. at 70, the facts underlying the decision and the
subsequent cases interpreting it make clear that such a
conversation is not automatically entitled to constitutional
protection merely because of where it occurred.
In Blood, a government informant wore a concealed transmitter
during meetings with the two defendants (Blood and Lorenzen) and
others involved in a conspiracy to burglarize bars of gold from a
commercial establishment. Id. at 62-64. "No warrant was
sought." Id. at 64. Over the course of twelve days, seven
conversations were transmitted, three of which were recorded and
used by the prosecution at the defendants' joint trial. Id. at
64-65. Two of the conversations admitted in evidence had taken
place at Lorenzen's home and the third conversation had taken
place at the home of Novia Turkette, Jr., the purported leader of
the criminal organization behind this and various other crimes on
the North Shore. Id. at 63-65. The government informant had
known Turkette and his father for about fifteen years, and
Turkette had posted the informant's bail in the past on unrelated
charges. Id. at 63 n. 4.
Based on these circumstances, the court reasoned that because
the conversations at issue were held in private homes and
included only friends or close associates, it was reasonable for
the participants to expect that what was said would not become
more widely known. Id. at 68-69. The court further held that
"it is objectively reasonable to expect that conversational
interchange in a private home will not be invaded surreptitiously
by warrantless electronic transmission or recording." Id. at
70.
The Blood majority detailed the basis for its decision. It
stated that art. 14 "was intended by its drafters not merely to
protect the citizen against `the breaking of his doors, and the
rummaging of his drawers,' Boyd v. United States,
116 U.S. 616, 630 (1886); but also `to protect'" each citizen in their
"right to bring thoughts and emotions forth from the self in
Page 643
company with others doing likewise, the right to be known to
others and to know them, and thus to be whole as a free member of
a free society." Id. at 69. Viewed against this background, the
conversations conducted in the homes of Lorenzen and Turkette,
among individuals who had been friends or close associates for
fifteen years, were of the character that the court concluded
ought to be protected.
In subsequent decisions involving the warrantless seizure of
conversations by electronic surveillance, courts have concluded
that the same privacy concerns were not implicated when the
circumstances could be distinguished from those present in
Blood. For example, in Commonwealth v. Price,
408 Mass. 668, 672-673 (1990), the defendant had discussed the purchase of
a large quantity of drugs in a motel room rented by undercover
officers he had never previously met. The negotiation, to which
the defendant brought over $100,000 in cash, was surreptitiously
recorded on audio and video tapes. The court recognized that
while the defendant may have an expectation of privacy in his
conversation in the motel room, such an expectation is not one
society is prepared to accept as reasonable. Ibid. The
defendant "engaged in an arm's[-]length business negotiation with
strangers in a place over which he had neither control nor a
right to control and which had been selected by the strangers."
Id. at 672. Cf. Commonwealth v. Netto, 438 Mass. 686, 697
(2003) ("guest does not have any expectation of privacy in hishotel room once his rental period has expired"). Similarly, in
Commonwealth v. Collado, 42 Mass. App. Ct. 464, 469 (1997),
we held that the defendant "had no reasonable expectation of
privacy while he was present in the apartment of an undercover
narcotics officer with whom he had negotiated an arm's-length
transaction for the sale of drugs"; the defendant and the officer
were not "trusted friends," and their interaction was primarily
centered on business.
Here, the circumstances surrounding the defendant's intercepted
conversation are strikingly similar to those at issue in
Collado and Price. The defendant had stopped at Tirado's
apartment for a matter of minutes for the sole purpose of picking
up a package. The two were neither close business associates nor
close friends. The defendant had never previously been to
Tirado's
Page 644
apartment nor did he know where Tirado lived. The conversation
that ensued was confined to a discussion of the package. In sum,
the intercepted conversation exclusively concerned a business
transaction, was engaged in by two individuals who were not close
friends, and took place in a residence over which the defendant
did not have control. The indicia of an expectation of privacy
that were present in Blood, including lengthy conversations
that took place over a period of days at the homes of longtime
friends and business associates, are absent here. Here, the
defendant lacked a reasonable expectation of privacy and,
therefore, is unable successfully to challenge admission of the
conversation.
Even if we were to conclude otherwise, the outcome of this case
would remain unchanged. Trooper Colon's recollections of the
intercepted conversation added little to the other substantial
evidence of the defendant's guilt. In addition to the uncontested
evidence that the defendant arrived at Tirado's home with the
intent to pick up the package, the telephone calls that preceded
his arrival demonstrated that the package was his.[fn6] When
Tirado called the defendant and told him the package had arrived,
the defendant's first response was, "[I]s it okay? Is everything
okay with it?" Tirado confirmed that it was and urged the
defendant to get "his" package because Tirado's wife was "pissed
at him [Tirado], [and] wanted the package gone." The defendant's
attempt to flee from the police before he was arrested further
bolsters the evidence of guilt.
Moreover, Colon's recollections of the conversation at issue
were sketchy at best. He remembered the defendant saying he would
pay Tirado $400 (only $200 was found), and immediately after that
he heard money being counted. He also heard someone say "Help me
out." There was a pause, but Colon could not make out what was
going on. In response to leading questions, Colon testified that
he did not hear Tirado ask for a loan, but that testimony did not
foreclose the possibility that such a request had been made. In
the circumstances, the admission of the intercepted conversation,
even if error, did not cause a substantial risk of a miscarriage
of justice.
Page 645
2. Closing argument. Similarly, we reject the defendant's
contention that the prosecutor improperly used the rebuttal
evidence for a substantive purpose in his closing
argument.[fn7] To the extent that the prosecutor urged the
jury to conclude that Tirado was credible because the monitoring
device would permit the police to detect if he had lied to them,
the argument was based on the fair inferences that could properly
be drawn from the evidence that was adduced during the
Commonwealth's case-in-chief. There was no error.
3. Applicability of G.L. c. 272, § 99 O 2. The defendant also
argues that G.L. c. 272, § 99 O 2, as appearing in St. 1968, c.
738, § 1, which outlines service procedures for evidence garnered
in the one-party exception situation set forth in the wiretap
act, mandated exclusion of Colon's testimony regarding the
conversation at issue. Section 99 O 2 provides in pertinent part:
"In any criminal trial where the commonwealth intends to offer in
evidence any portions of [certain types of] recording[s] or
transmission[s] or any evidence derived therefrom . . . the
defendant shall be served with a complete copy of each recording
or a statement under oath of the evidence overheard as a result
of the transmission. . . . [The failure to make such service
thirty days before trial] shall render such service illegally
obtained . . . and such evidence shall not be offered nor
received at the trial notwithstanding the provisions of any other
law or rules of court." The statute's exclusionary provision,
Page 646
however, is not self-executing. While a formal motion to suppress
is unnecessary, see Commonwealth v. Picardi, 401 Mass. 1008,
1009 (1988), defense counsel nonetheless must direct the judge to
the provision in some manner. See Commonwealth v. Flemmi,
2 Mass. App. Ct. 533, 541 (1974). Here, "[t]he possibility of a
violation of G.L. c. 272, § 99(O)(2), was never even suggested to
the trial judge," and thus cannot be raised as an "afterthought"
for the first time on appeal. Ibid.[fn8]
a. Post-Miranda statement. The defendant argues that his
motion to suppress his statement to Trooper Daniel Soto was
improperly denied. After conducting an evidentiary hearing, the
trial judge denied the motion the day before trial began. The
facts adduced at that hearing and not disputed on appeal are as
follows.
When the defendant arrived at the Springfield police station,
he was handcuffed inside the holding cell. Trooper Soto
accompanied another officer into the cell and began speaking with
the defendant in Spanish. He read the defendant another set of
Miranda warnings before making "small talk" with him about, among
other things, the defendant's Puerto Rican heritage. After
Trooper Soto sat down next to the defendant, the defendant looked
at him and said, "Wait a minute. If you think I am going to
cooperate, don't waste your time. You chose to be a police
officer, you chose to be to be a cop, that is your job. I chose
my job, I will do my time," or words to that effect. Trooper Soto
discontinued his conversation with the defendant and got up and
left.
The judge found that Soto discontinued the conversation because
the defendant had invoked his right to silence, but the
"invocation was not a simple invocation of the right to remain
Page 647
silent; it was the voluntar[y], although perhaps spontaneous and
ill-advised statement to the police officer that went beyond the
invocation of his right to remain silent, especially that it was
not in response to any question of the police officer." The judge
ruled that because the defendant had been advised of his Miranda
rights and had freely and voluntarily waived those rights in
making the statement, it was admissible.
At trial, the prosecutor mentioned the statement in his opening
remarks, and Soto testified to the statement during the
Commonwealth's case-in-chief, over the defendant's objection. The
prosecutor also referred briefly to the statement in his
summation. Following closing arguments, the judge, on her own
initiative, suggested that she provide a cautionary instruction.
The judge outlined the proposed instruction, which would inform
the jury that they were not permitted to draw any adverse
inference from the defendant's statement to the effect that he
did not want to talk to the police, and that they could only
consider whether the defendant actually spoke to police, and
whether the statement was an admission of guilt. Defense counsel
requested that that instruction be given, and in her final
instructions, the judge charged the jury accordingly. The
defendant did not object.
On appeal, the defendant claims that the admission of his
statement to Trooper Soto, over his objection, violated the
principles set forth in Doyle v. Ohio, 426 U.S. 610 (1976).
The crux of a Doyle violation is the government's use of "a
defendant's post-Miranda silence for the purpose of impeaching an
exculpatory story advanced at trial by a defendant."
Commonwealth v. McClary, 33 Mass. App. Ct. 678, 684 (1992).
In context, the defendant's statements are not enough to
qualify as the invocation of a right to cut off questioning. See
Commonwealth v. Roberts, 407 Mass. 731, 733-734 (1990)
(defendant's refusal to answer certain questions was not an
assertion of right to remain silent); Commonwealth v. Hussey
(No. 1), 410 Mass. 664, 671, cert. denied, 502 U.S. 988 (1991)
(defendant's statement that "he had nothing else he could say"
and his thinking out loud as to whether he should talk did not
amount to invocation of right to remain silent). The defendant's
statement could properly have been understood as saying, not
Page 648
that he would not talk to Soto, but that he would not assist the
police by implicating his suppliers or accomplices to get
favorable treatment for himself. Trooper Soto testified that he
understood the defendant's statement as indicating that he did
not want to help the police "get bigger fish."
The judge's ruling is not to the contrary. While she
characterized the defendant's initial refusal to cooperate as an
invocation of the right to silence, she concluded that his
subsequent statement "went beyond" this invocation. The ruling
properly reflects the reasoning in the decisional law that
although a defendant may say something while he is in custody
that may be interpreted as a desire to cut off questioning, when
the defendant supplements that statement with additional remarks
that do not convey the same sentiment, as occurred here, it is
insufficient to invoke the right to silence. See generally
Commonwealth v. Roberts, 407 Mass. at 733-734; Commonwealth
v. Hussey (No. 1), 410 Mass. at 671; Commonwealth v. Selby,
420 Mass. 656, 660-662 (1995). "For the rule of Miranda regarding
the termination of questioning to apply, there must be . . . an
expressed unwillingness to continue." Commonwealth v.
Pennellatore, 392 Mass. 382, 387 (1984). That was absent here.
In any event, even if the defendant's initial statement
indicating a refusal to cooperate is viewed as an invocation of
his right to remain silent, his subsequent inculpatory remarks
were spontaneous and without provocation and were therefore
properly admitted. "Spontaneous and unprovoked statements are
admissible even if made after a defendant has invoked his right
to remain silent." Commonwealth v. Brum, 438 Mass. 103, 115
(2002). Finally, even if we were to conclude there was error, it
was cured by the judge's limiting instruction.
b. Jury instructions and sufficiency of the evidence. The
judge instructed the jury on two theories of cocaine trafficking:
possession with the intent to distribute, and "bringing into" the
Commonwealth. See G.L. c. 94C, § 32E(b)(4). The judge also told
the jurors that they had to be unanimous as to either or both
theories, but there was no special verdict form. On appeal, the
defendant argues that there was insufficient evidence that he
brought the cocaine into the Commonwealth and that the judge,
Page 649
in instructing the jury on this theory, impermissibly deviated
from the statutory language.[fn9]
The judge instructed the jury, without objection, that the
"bringing in" theory required the Commonwealth to prove that the
defendant "caused the cocaine to be brought into the Commonwealth
or brought the cocaine into the Commonwealth." In Commonwealth
v. Manrique, 31 Mass. App. Ct. 597, 604 (1991), we held that
guilt under the "bringing in" theory required "satisfactory proof
that (i) the cocaine was brought into the Commonwealth from
someplace outside and (ii) the defendant in some manner
participated in the act of importing." Here, the judge placed a
greater burden on the Commonwealth than is required by the
Manrique case. Instead of requiring mere participation in the
importation of the cocaine to establish the defendant's guilt,
the judge required the Commonwealth to prove that the defendant
either caused the cocaine to be brought into the State or himself
brought the cocaine in. Thus, we agree with the Commonwealth that
the more restrictive language used by the judge was advantageous
to the defendant and did not create error.
Viewing the evidence in the light most favorable to the
Commonwealth, including all reasonable inferences, a rational
jury could have found beyond a reasonable doubt that the
defendant caused the cocaine to be brought into the Commonwealth.
See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 432 (2006).
Tirado accepted the defendant's offer to pay him $400 to accept
delivery of a package. A package originating from Colombia was
subsequently delivered to Tirado's temporary residence, addressed
to Tirado, about a week or a week and one-half later. The
defendant retrieved the package, which contained almost 900 grams
of cocaine, from Tirado's residence after being informed of its
arrival. He paid Tirado one-half of the money owed for receiving
the package and promised to remit the remaining $200 at a later
date. The defendant attempted to evade police capture after
securing the package, and a search of
Page 650
his person revealed over $1,000 in cash. After his arrest, he
told Trooper Soto that he had "chose[n his] job" and that he
would "do [his] time." A jury could have reasonably inferred from
this statement that the defendant was prepared to receive a
prison sentence for drug trafficking. Taken together, the
evidence reflects that the defendant handled all aspects of the
cocaine's importation save signing for the package. Even under
the higher standard for a conviction imposed by the jury
instruction, the Commonwealth met its burden.
Finally, where, as here, the evidence is sufficient to sustain
a guilty verdict under both theories, there is no merit to the
defendant's contention that it was error to submit a general
verdict form to the jury. See Commonwealth v. Muckle,
59 Mass. App. Ct. 631, 641-642 (2003) ("[w]here only a generalverdict slip is submitted to a jury, a conviction will be
affirmed provided there is sufficient evidence to sustain both
theories").
Each of the defendant's claims of error being meritless, his
conviction of trafficking in cocaine in excess of 200 grams must
be affirmed.
So ordered.
[fn2] Officer Garcia was assigned to listen in on the
conversation because he spoke Spanish. No listening device was
used to monitor the initial communications between Tirado and the
defendant, but Officer Garcia testified that he was standing
close enough to Tirado to hear both ends of the conversation.
[fn3] The defendant properly does not mount a challenge to the
admission of the intercepted conversation under G.L. c.
272, § 99, the Massachusetts wiretap act. The express provisions of the
wiretap act make clear that where, as here, the police obtained
the consent of at least one of the parties to the conversation in
a case involving a "designated offense," a warrant need not be
obtained. See generally Commonwealth v. Blood, 400 Mass. 61,
66-67 (1987). Similarly, "warrantless surveillance with `one
party consent' has been held to lie beyond the protective reach
of the Fourth Amendment to the United States Constitution." Id.
at 67.
[fn4] Although the defendant filed a motion to suppress his
post-Miranda statements, the subject of the defendant's second
argument herein, the motion did not include any claim related to
the electronically intercepted conversation. The claim is
therefore waived and this court need not consider it on appeal.
See Commonwealth v. Costa, 65 Mass. App. Ct. 227, 232-233 &
nn. 4-7 (2005).
[fn5] That the evidence was introduced during rebuttal does not
alter the analysis. See Commonwealth v. Fini, 403 Mass. 567,
573 (1988).
[fn6] There is no objection on appeal to Garcia's testimony
reciting the content of the three telephone calls between Tirado
and the defendant, in which the details of the pick-up were
arranged.
[fn7] The portion to which the defendant refers, and which drew
no objection, is as follows:
"[The defendant] goes into the apartment and has
conversation with Peter Tirado. That conversation is
monitored, ladies and gentlemen of the jury. It is
being supervised. It is being verified. Peter Tirado
does not have the ability to ask for a $200 loan. Not
consistent with what he told police. He can't do
that. If he does that, the police know at that point
in time that he's lying. [The defendant] took that
package, ladies and gentlemen. He took it because he
knew what was in it. He took it because he hired
Peter Tirado to take custody of it. Even tried to
kind of gyp him on the money. He paid for it. He paid
$200 for it. That's an extraordinary amount of money
to pay someone to take delivery of a package. And
that, ladies and gentlemen of the jury, is all
circumstantial evidence which establishes [the
defendant's] knowledge of what he was picking up."
[fn8] The failure to raise the issue below creates the additional
hurdle of an inadequate record. Because the judge was not
afforded the opportunity to rule on the issue of service, the
record does not supply the necessary "factual predicate" to
determine whether the statements were timely provided to the
defendant and, in turn, whether the evidence was admitted in
contravention of the statute. See Commonwealth v. Westerman,
414 Mass. 688, 699 (1993) (affirming determination of trial judge
that service was made within the requisite time period under § 99
O where record's lack of clarity failed to support the
defendant's claim); Commonwealth v. Campiti,
41 Mass. App. Ct. 43, 68-69 (1996).
[fn9] At trial, the defendant moved for a required finding of not
guilty at the close of the Commonwealth's evidence and again at
the close of all the evidence. The defendant argued only that the
evidence was insufficient to show that he knew the package
contained cocaine.
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