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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Paniaqua, 413
Supreme Judicial Court of Massachusetts,
Argued
Decided
James A. Couture,
[413
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN,
LYNCH, O'CONNOR and GREANEY, JJ.
ABRAMS, Justice.
[1][2]
Convicted of unlawfully carrying a firearm, unlawful possession of ammunition,
and unlawful possession of cocaine, the defendant, Angel Paniaqua,
appeals. (FN1) On appeal, the defendant claims error in (1)
the denial of his motion to suppress;
(2) the Commonwealth's exercise of a peremptory challenge; and (3) the denial of his motions for
required finding because the evidence was insufficient to support the
convictions. We affirm.
[3][4] 1. The motion to suppress. (FN2)
At issue is whether exigent circumstances justified the police officers'
warrantless entry into an apartment where the defendant was arrested and the
seizure of items in plain view. There
was testimony from which the judge could find that Boston police Officer William E. Doogan, while patrolling in a
police vehicle, received a radio report that gunshots had been fired in a
hallway at 166 Seaver Street in the Roxbury section of Boston. Doogan arrived at that location in about one
minute. Within another minute or two,
several other officers arrived, and all of the [413
A police
radio call alerted the police to a probable firing of shots at 166 Seaver
Street. The police reasonably believed
the circumstances to be life‑threatening.
The rapid response by five officers within three minutes of the radio
report meant that there was a strong possibility that the person who fired the
shots still was at 166 Seaver Street.
The woman in the second‑floor hallway identified the third‑floor
apartment occupied by the defendant as the location of the person who fired the
shots. The opening and closing of the
rear door to that apartment further identified that apartment as a possible
location of a suspect. The facts here
clearly warranted the officers to conclude that there was a danger to the
public and that at least one suspect and one weapon would be located at 166
Seaver Street. Speed would be essential
if the person who fired shots were to be apprehended. The judge correctly concluded that the
Commonwealth had sustained its burden of proving that exigent circumstances and
probable cause justifying the police officers' entry into the apartment
existed. See Commonwealth v. Franklin, 376 Mass. [413 Mass. 799] 885,
899‑900, 385 N.E.2d 227 (1978).
The subsequent seizure of the firearm, ammunition, and foil ball was
lawful. There was no error in denying
the defendant's motion to suppress.
[5] 2. The Commonwealth's use of a peremptory
challenge. The defendant asserts
that he is entitled to a new trial because the judge erred in requiring the
defendant to choose between a stay of the trial pending an appeal or to proceed
to trial without a juror who was peremptorily challenged by the
Commonwealth. In the course of jury
empanelment, the prosecutor challenged one juror. Defense counsel objected, stating, "He's
obviously Hispanic. The Defendant is
Hispanic." The judge disallowed
the challenge. The prosecutor responded
that, "under [Commonwealth v.
Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100
S.Ct. 170, 62 L.Ed.2d 110 (1979) ] there has to be a pattern." The judge then asked the prosecutor why she
was challenging the juror. She answered,
"I'm challenging him, first of all, because I don't like his looks. Secondly, he lives in Hawthorne Place. He's young;
he's single. And he's watching me
in a strange manner." The judge
again rejected the challenge, suggesting that she could seek relief from a
single justice of this court.
On the
following Monday, the prosecutor moved for reconsideration of the disallowance
of the peremptory challenge on the ground that there had been no showing of a
pattern of excluding Hispanic jurors.
The judge denied the motion. The
Commonwealth then sought relief from a single justice of this court. The single justice conducted a hearing on the
"Commonwealth's Application Pursuant to G.L. c. 211, Sec. 3 For Leave To
Appeal The Denial of a Peremptory Challenge During Empanelment." After hearing counsel, the single justice
announced that he would reserve and report the matter to the full court unless
the parties could "work it out[them]selves."
The
proceedings then resumed in the trial court.
The judge said that since there were "only two individuals of
Hispanic origin in the ... group of potential jurors ... out of fifty, the
Defendant's objection to the peremptory challenge exercised by the Commonwealth
was deemed by [the judge] to be meritorious." [413 Mass. 800] "Moreover," he said, "the
reasons stated by the Assistant District Attorney bordered on the
ludicrous. This Court determined that it
would not permit the exercise of such a peremptory challenge. There is a pattern of exclusion of a distinct
ethnic group when, out of two people summonsed to the courtroom, one is
challenged from the jury for no reason whatsoever. Accordingly, and in order to comply with the
wishes of the Supreme Judicial Court, these proceedings are stayed."
Defense
counsel objected, stating that, if the trial were to be stayed until the juror
issue was resolved in the Supreme Judicial Court, the trial would not take
place for another six months, during which time the defendant would be required
to remain in jail. Thus, said counsel,
"We would be prepared to work out whatever accommodation, including
impanelling a new jury tomorrow...."
The judge replied that, rather than empanelling a new jury, a juror
could be seated to replace the challenged juror. Defense counsel said, "Whatever the accommodation
is, we are not able to withstand a six month delay. And we are prepared to go ahead." Counsel also announced that he was not
giving up his right to appeal the question whether the defendant was entitled
to have the challenged juror on his jury, but, if his only choice was to wait
six months for the juror issue to be resolved by the Supreme Judicial Court or
to go ahead with the trial, he would go ahead with the trial.
The
defendant now argues that his choice to proceed with the trial, without the
challenged Hispanic juror, rather than delay the trial for a six‑month
period during which the defendant would remain in jail, cannot fairly be deemed
to be a voluntary relinquishment of his right to argue on appeal that the
challenged juror was excused erroneously.
We recognize that the defendant may have been put to a difficult choice; however, we are not persuaded that it is
unfair to hold the defendant to his choice to proceed without the juror,
knowing all the circumstances. The
defendant made his choice and cannot now claim error by the judge.
[413 Mass. 801] [6] 3. The sufficiency of
the evidence. " 'In reviewing
the denial of a motion for a directed verdict in a criminal case, [the court
determines] whether the evidence offered by the Commonwealth, together with
reasonable inferences therefrom, when viewed in its light most favorable to the
Commonwealth, was sufficient to persuade a rational jury beyond a reasonable
doubt of the existence of every element of the crime charged.'
Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820
(1979). See Commonwealth v. Latimore, 378 Mass. 671, 676‑677, 393 N.E.2d
370 (1979); Jackson v. Virginia, 443 U.S. 307, 318‑319,
99 S.Ct. 2781, 2788‑2789, 61 L.Ed.2d 560 (1979)."
Commonwealth v. Stewart, 398 Mass. 535, 540, 499 N.E.2d 822
(1986). "It is sufficient that the
evidence permitted the inference which the jury obviously drew against
[Paniaqua]." Commonwealth v. Nelson, 370 Mass. 192,
203, 346 N.E.2d 839 (1976).
[7]
Possession is the intentional exercise of control over an item.
Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325
(1989). There was ample evidence at the
trial that the defendant possessed a gun containing ammunition. He threw the loaded gun into a trash
can. At issue is the conviction for
unlawful possession of cocaine. (FN3)
[8] The
evidence concerning the foil ball, in the light most favorable to the
Commonwealth, may be summarized as follows.
The defendant threw a foil ball into the trash can. The contents of the foil ball were described
as "a white rock‑like and powdery substance [which the officer]
believed ... to be cocaine." The
certificate issued by the Commonwealth pursuant to G.L. c. 111, § 13 (1990
ed.), certifies that the "powder contained in 3 aluminum foil " packets was examined (emphasis
supplied). "The powder was found to
contain: Cocaine." The analysis indicates that there was 10.43
grams of cocaine. The jury therefore
could have determined that at least one, if not all three, of the foil packets
contained powder which was determined to be cocaine. (FN4)
[413 Mass. 802] The jurors knew that the foil ball contained a white powdery
substance which the officers believed to be cocaine. The jurors could credit the officers' beliefs
that the white powdery substance was cocaine.
Officer Stevens, for example, testified in response to a question by the
defense that he (Stevens) would not "testify about something that he was
not certain about." (At the time of
trial, Stevens had been on hundreds of drug raids.) Another officer stated, in response to a
question by the defense, that this was not the first arrest he had made where
drugs were found. The defendant did not
challenge the expertise of the officers at trial. (FN5)
Further, throughout the trial, both the Commonwealth and the defendant
repeatedly asked questions as to what substances were found and what the
officers saw. The opinion of one of the
officers was elicited by the defendant on cross‑examination. The defendant did not raise any objection to
the officers' expertise as to what contraband (drugs) was observed in the
apartment that night. Throughout the
trial, the defense strategy was to challenge the Commonwealth's claim that the
defendant possessed the items (the gun, the bullet, and the drugs) and the
chemical analysis. At no time has the
defendant challenged the expertise of the officers. "The theory of law [413 Mass. 803] on
which by assent a case is tried cannot be disregarded when the case comes
before an appellate court for review...." Commonwealth v. Fernette,
398 Mass. 658, 667, 500 N.E.2d 1290 (1986), quoting Santa Maria v. Trotto, 297 Mass. 442, 447, 9 N.E.2d 540
(1937). (FN6)
[9][10] "Absent objection, the hearsay
evidence was properly admitted, and the jurors were entitled to give it such
probative effect as they deemed appropriate." Abraham v. Woburn, 383
Mass. 724, 726 n. 1, 421 N.E.2d 1206 (1981).
See Commonwealth v. Keevan,
400 Mass. 557, 562, 511 N.E.2d 534 (1987).
Accord People v. Bailey, 1
Cal.App. 4th 459, 2 Cal.Rptr.2d 204 (1991).
Additionally, there was evidence that (in addition to running away from
the police and throwing the foil bag into the trash can) the defendant gave a
false name and changed his appearance by the time of trial. There was, therefore, extensive evidence of
the defendant's consciousness of guilt.
See Commonwealth v. Doucette,
408 Mass. 454, 461, 559 N.E.2d 1225 (1990) ( "Actions ... that indicate a
defendant's consciousness of guilt together with other evidence are sufficient
to prove ... guilt"). (FN7)
Judgment affirmed.
O'CONNOR,
Justice (dissenting in part, with whom NOLAN, Justice, joins).
I, too,
would affirm the defendant's conviction of unlawfully carrying a firearm, and I
agree that the guilty verdict with respect to the indictment charging unlawful
possession[413 Mass. 804]
of ammunition should stand. I do
not agree, however, that the evidence was sufficient to warrant the jury's
verdict of guilty on the reduced charge of unlawful possession of cocaine
indictment. The defendant is
constitutionally entitled to an acquittal on that charge.
The trial
took place in March, 1989, approximately two years after the events that the
trial addressed. The evidence most
favorable to the Commonwealth showed that on April 7, 1987, the defendant threw
a tinfoil ball into a trash barrel in a kitchen at 166 Seaver Street in the
Roxbury section of Boston, and Officer William E. Doogan retrieved it. The police also retrieved from the kitchen at
166 Seaver Street two other tinfoil packages.
There was no evidence that the defendant had ever been in possession of
either of those two packages. The
contents of the tinfoil ball and the other two tinfoil packages were commingled
and then they were analyzed by the Department of Public Health. The Commonwealth introduced in evidence a
certificate, pursuant to G.L. c. 111, § 13 (1990 ed.), stating that the
combined contents of the tinfoil ball and the other tinfoil packages contained
cocaine.
The
evidence also included the following.
Officer Doogan testified that, immediately after he picked the tinfoil
ball out of the trash barrel on April 7, 1987, he opened the ball and "saw
a white rock‑like and powdery substance that [he] believed at the time
[when he picked it up] to be cocaine."
Doogan did not testify about why he believed at that time that the
substance was cocaine and, most importantly, he did not testify to any opinion
that he may have held at the time of the trial as to what the substance
was. Doogan did not testify as an
expert, and indeed there was no evidence that would have qualified him as such.
Surely, his testimony "in response
to a question by the defense, that this was not the first arrest he had made
where drugs were found," referred to by the court, ante at 1282, would not
qualify him as an expert in drug recognition and identification.
Officer
Frederick Stevens testified that "Officer Doogan went to the trash barrel
and retrieved ... a large aluminum [413
Mass. 805] ball, which [Doogan and
Stevens] found later to contain a white substance which [they] believed to be
cocaine at that time." Stevens, too, did not testify about his reasons for
believing in 1987 that the substance was cocaine, and he too did not express an
opinion at trial that the substance was indeed cocaine. Like Doogan, Stevens did not testify as an
expert, and there was no evidence that, either in April, 1987, or at the time
of trial, he was an expert in drug recognition and identification. Certainly, Stevens's testimony, apparently
relied on by the court, ante at 1282, that he "would not
'testify about something that he was not certain about,' " says nothing
about Stevens's expertise. Furthermore,
the fact that, at the time of the trial in 1989, "Stevens had been on
hundreds of drug raids," ante at 1282, does not warrant an
inference that, either in April, 1987, or even at the time of trial, Stevens
was an expert in drug recognition and identification.
So, it may
well be that "[t]he jurors could credit the officers' beliefs that the
white powdery substance was cocaine," as the court states, ante
at 1282, if all that is meant by that is that the jury could have found that in
April, 1987, two years before the trial, two police officers without drug
expertise "believed" for unstated reasons that the tinfoil ball
attributable to the defendant contained cocaine. If the court means, however, that the police
officers' testimony warranted the jury in finding that the tinfoil ball in fact
contained cocaine, the court is clearly wrong.
The officers' beliefs in 1987, at a time as to which the record contains
no evidence of their training and experience in drug recognition and
identification, are completely without probative value. See
Commonwealth v. Santaliz, 413 Mass. 238, 241‑242, 596 N.E.2d 337
(1992);
Commonwealth v. Dawson, 399 Mass. 465, 466‑467, 504 N.E.2d
1056 (1987). As the Chief Justice states
in P.J. Liacos, Massachusetts Evidence 409 (5th ed.1981), "[t]he concept
of relevancy, or inherent probative worth, is as much practical as legal. To determine the inherent probative worth of
evidence of a fact (B) offered to establish another fact (A), it must be shown
that from the viewpoint of logic, experience, or common sense that proof of [413 Mass. 806] B tends to prove A."
From "the viewpoint of logic, experience, or common sense," to
use the Chief Justice's words, the fact that, at a time when two police
officers who, for all that appears, were untrained and inexperienced with
respect to drugs, thought that a particular substance was cocaine, is
irrelevant.
But, says
the court, "[t]he defendant did not challenge the expertise of the
officers at trial," ante at 1282, and "[a]bsent
objection, the hearsay evidence was properly admitted, and the jurors were
entitled to give it such probative effect as they deemed appropriate."
Ante at 1283, quoting Abraham
v. Woburn, 383 Mass. 724, 726 n. 1, 421 N.E.2d 1206 (1981). Of course, it is not difficult to understand
why the defendant did not challenge the officers' expertise at trial. The officers did not purport to testify as
experts. They did not offer opinions at trial
that the substance in question was cocaine.
In any event, neither Abraham v.
Woburn, supra, nor Commonwealth v.
Keevan, 400 Mass. 557, 562, 511 N.E.2d 534 (1987), cited by the court, both
of which involve probative, but unobjected‑to, hearsay evidence, stands
for the proposition that a jury are free to give unobjected to nonprobative
(irrelevant) evidence whatever effect the jury may deem appropriate. Indeed, the court said in Keevan, supra, quoting
Mahoney v. Harley Private Hosp., Inc., 279 Mass. 96, 100, 180 N.E. 723
(1932), "Hearsay, once admitted, may be weighed with the other evidence, and given any evidentiary value which it
may possess " (emphasis added).
The testimony concerning the police officers' beliefs, uninformed by
training or experience, was without probative effect when it was offered, and
it did not acquire probative effect by having been admitted without
objection. (FN1) See
Agricultural Nat'l Bank v. Schwartz, 325 Mass. 443, 448, 91 N.E.2d 195 (1950) ("Even if some
of this evidence may have been admitted without objection,[413 Mass. 807] it does not thereby become entitled to any
probative effect").
In
affirming the trial judge's denial of the defendant's motion for a required
finding of not guilty on the cocaine indictment, the court appears to rely not
only on the non‑probative evidence of the officers' beliefs two years
before the trial, but also on the certificate introduced by the Commonwealth
pursuant to G.L. c. 111, § 13. The court
notes that that certificate would warrant the jury in finding that "at
least one, if not all three, of the foil packets contained powder which was
determined to be cocaine." Ante at 1282. Of course, it is true that the jury
reasonably could have concluded that at least one of the three tinfoil packages
retrieved from 166 Seaver Street contained cocaine, but it is equally true that
they could not rationally have determined from the certificate that "all
three" packages, prior to their having been commingled, contained cocaine,
nor could they have rationally determined that the one package proved to have
been in the defendant's possession contained cocaine. Because the contents of the three packages
were commingled before analysis, a fact not disputed by the Commonwealth, but
virtually ignored by the court, the certificate contributes nothing to the
Commonwealth's case.
Brief
comment on the "extensive evidence of the defendant's consciousness of
guilt," ante at 1283, is appropriate. The court recognizes that "[e]vidence of
consciousness of guilt alone cannot support a conviction."
Ante at 1283 n. 7. Here, with
respect to the charge of unlawful possession of cocaine, the evidence of
consciousness of guilt (of some
crime, at least) stands alone.
Therefore, it cannot support a conviction.
"[T]o
sustain the denial of a directed verdict, it is not enough for the appellate
court to find that there was some record evidence, however slight, to support
each essential element of the offense;
it must find that there was enough evidence that could have satisfied a
rational trier of fact of each such element beyond a reasonable doubt."
Commonwealth v. Latimore, 378 Mass. 671, 677‑678, 393 N.E.2d
370 (1979). There was not [413 Mass. 808] enough evidence in this case to satisfy any rational trier of
fact that the defendant possessed cocaine.
Accordingly, the defendant is entitled to a finding of not guilty of
that offense as a matter of constitutional due process. Jackson v. Virginia, 443
U.S. 307, 314‑316, 99 S.Ct. 2781, 2786‑2787, 61 L.Ed.2d 560 (1979).
(FN1.) The judge sentenced the defendant on
the firearm charge and placed the other two convictions on file. "However, since the placing of a case on
file does, inter alia, suspend, for as long as the case remains on file, a
defendant's right to appeal alleged error in the proceeding, the defendant must consent to the filing"
(emphasis supplied). Commonwealth v. Delgado, 367 Mass. 432,
438, 326 N.E.2d 716 (1975). Commonwealth v. Mora, 402 Mass. 262, 263
n. 1, 521 N.E.2d 745 (1988). The better
practice is not to place a case on file without the defendant's consent. Because the record does not reflect the
defendant's consent to two convictions' being placed on file we shall consider
them.
(FN2.)
The judge did not make any findings of fact.
Failure to make findings is not fatal, however, when the record makes
the judge's reasoning clear. See Commonwealth v. Parham, 390 Mass. 833,
837‑838, 460 N.E.2d 589 (1984); Commonwealth v. Forrester, 365 Mass. 37,
44‑45, 309 N.E.2d 190 (1974); Commonwealth v. Ayles, 31 Mass.App.Ct.
514, 517, 580 N.E.2d 394 (1991). It is
clear from the judge's discussion with counsel that the judge's denial of the
defendant's motion to suppress was grounded on the judge's determination that
the officers' entry into the third‑floor apartment was dictated by both
exigent circumstances and probable cause as disclosed by the testimony of two
of the participating officers.
(FN3.)
The defendant was charged with trafficking in cocaine. The judge reduced the trafficking charge to
possession of cocaine.
(FN4.)
Indeed, in his closing argument, defense counsel conceded that the jury might
draw such an inference. He said: "We know that somebody's [foil package]
had cocaine in it, because we have three packets in there; and the laboratory said there's cocaine. There isn't any clear indication that what
[the defendant] had had dope in it.
However, I would submit that if they found two packets with tinfoil, and
there's another packet that he had that looks like it, maybe you can conclude
that his packet had dope in it, if you believe ... that [the defendant] was
dumb enough to stand there with a tinfoil packet and wait until the police came
in; and, then, when they came in, in
their presence throw it in the trash. I
submit to you that part of it is totally incredible."
(FN5.) Indeed, even on appeal, the defendant
has not argued that the officers were not qualified to express their opinion on
the nature of the substance. "[W]e
may consider issues on appeal not raised at trial [or, in this case, even on
appeal], but our power to do so is rarely exercised, and is exercised only in
response to a serious and obvious error creating a substantial risk of a
miscarriage of justice." Commonwealth v. Pares‑Ramirez, 400
Mass. 604, 609, 511 N.E.2d 344 (1987).
This conviction does not meet that standard especially in light of the
fact no judgment has been imposed on this offense. The defendant has not complained or sought to
have himself discharged or sentenced on this conviction. See Commonwealth
v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).
(FN6.) Clearly, it would have been better for
the Commonwealth's trial counsel to make explicit the drug training and
experience of the officers. The
defendant himself brought out much of the evidence of the officers' opinion and
expertise. Appellate counsel for the
Commonwealth was not trial counsel.
(FN7.) Evidence of consciousness of guilt
alone cannot support a conviction but "evidence of such a state of mind
when coupled with other probable inferences, may be sufficient to amass the
quantum of proof necessary to prove guilt." Commonwealth v. Booker, 386
Mass. 466, 470, 436 N.E.2d 160 (1982), citing Commonwealth v. Best, 381
Mass. 472, 483, 411 N.E.2d 442 (1980); Commonwealth v. Porter, 384 Mass. 647,
653, 429 N.E.2d 14 (1981). Here, the
observation of the white powder, the officer's familiarity with drug control,
and the laboratory report that the white powder was cocaine provide that
additional evidence.
(FN1.) The court relies not only on Abraham v. Woburn, 383 Mass. 724, 421
N.E.2d 1206 (1981), and Commonwealth v.
Keevan, 400 Mass. 557, 511 N.E.2d 534 (1987), but on People v. Bailey, 1 Cal.App. 4th 459, 2 Cal.Rptr.2d 204
(Ct.App.1991). In that case, the court
held: "A trier of fact reasonably
could rely on the testimony of a trained
narcotics officer received without objection that the substance possessed
was rock cocaine ..." (emphasis
added).
Id. at 465, 2 Cal.Rptr.2d 204.