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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. Suarez (2003)
Present: Porada, Kass, & Greenberg, JJ.
Jose A. Espinosa for Francisco Suarez.
Edward E. Eliot for Amparo Arango.
Susanne Levsen Reardon, Assistant District Attorney, for the Commonwealth.
PORADA, J.
A Suffolk county grand jury indicted the
defendants, Francisco Suarez and Amparo Arango, each on charges of trafficking
in 200 grams or more of cocaine transported into 71 Parker Street, Chelsea, by
Maria Ortiz; trafficking in 200 grams or more of cocaine transported into 71
Parker Street, Chelsea, by Julio Mejia; and conspiracy to traffic in 200 grams
or more of cocaine in violation of G. L. c. 94C, § 40. Before
trial, the defendant Arango moved to dismiss the indictments and the defendant
Suarez moved to suppress evidence seized in the execution of a search warrant
and to sever his trial from that of another codefendant, Maria Ortiz. Those
motions were denied. A jury in the Superior Court returned not guilty verdicts
on the indictments charging Suarez and Arango with trafficking in 200 grams or
more of cocaine transported into
On appeal from their convictions, the
defendants claim multiple errors. The defendant Suarez claims that the trial
judge erred (1) in ruling that the prosecutor's exercise of a peremptory challenge
was not motivated by improper ethnic considerations, (2) in denying his motions
for a required finding of not guilty, and (3) in her instructions to the jury
on both joint venture and principal liability. Suarez also contends that the
motion judges erred in denying his motion to suppress evidence seized in the
execution of a search warrant and in denying his motion to sever his trial from
that of codefendant Ortiz. The defendant Arango argues that the motion judge
erred in denying her motion to dismiss the indictments and that the trial judge
erred in denying her motion for a required finding of not guilty and in
instructing the jury on both joint venture and individual liability. Arango
also argues that her trial counsel was ineffective in not objecting to the
judge's instructions and not requesting severance of her trial from that of the
other defendants. We agree that the judge should not have instructed the jury
on both joint venture and principal liability, as there was insufficient
evidence to support the latter. We therefore reverse her conviction. We affirm
the conviction of Suarez.
We address the defendants' claims of error.
1. Suarez's claims.
(a) Peremptory challenge. During the course of
the jury impanelment, defense counsel objected to the prosecutor's exercise of
a peremptory challenge of juror Diana Lugo. Defense counsel stated that
"in this venire I haven't seen any Hispanic individuals. Based on the last
name of this person, Ms. Lugo, she seems to be of Hispanic origin. . . . I would
like the court to take note of the fact that my client -- all the defendants
here are Hispanic." The judge responded: "There is no indication
whether she is Hispanic or Italian. So I am not even going to inquire of the
Commonwealth . . . ." Defense counsel contends that the judge failed to
follow the procedures mandated by the
Peremptory challenges are presumed to be
proper, Commonwealth v. Burnett, 418 Mass. 769, 770 (1994), but the presumption
is rebuttable on a showing that (1) there is a pattern of excluding members of
a discrete group and (2) it is likely that individuals are being excluded
solely on the basis of their membership within a group. Commonwealth v. Soares,
377
We will not overturn the judge's ruling if there is a sound basis in the record
for her ruling. Here, the defendant bore the burden of establishing a prima
facie case of impropriety by demonstrating that the juror in question was
Hispanic. Apparently the defendant sought to meet his burden by drawing the
inference from the juror's surname. This can suffice. Commonwealth v. Carleton,
418
Even if we were to assume that juror Lugo was
Hispanic, the record does not disclose that a pattern of conduct had developed
in which the prosecutor was ostensibly challenging jurors based on their
membership in a discrete group or that there was a likelihood that jurors were
being excluded from the jury solely on the basis of their group membership.
Prior to the prosecutor's challenge to juror Lugo, the prosecutor had not
exercised a challenge with respect to the two other jurors selected for the
panel whose surnames of Demaina and Clemente indicated that they might be
Hispanic.[2] In addition, prior to the prosecutor's exercise of her
peremptory challenge of juror Lugo, counsel for a codefendant disclosed to the
court that he had a number of clients by the name of Lugo who were being housed
as prisoners at the Nashua Street jail. The judge declined to excuse juror
(b) Motions for a required finding of not
guilty. Viewed in the light most favorable to the Commonwealth, Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979), there was ample evidence to convict
Suarez as a principal or as a joint venturer in trafficking in the cocaine
transported into the apartment by Maria Ortiz. The Commonwealth presented
evidence that, after months of surveillance of the activities of Suarez by the
police, they executed a search warrant for the premises at
The police did not find any drugs in the
apartment, but during the execution of the warrant two people, Julio Mejia and
Maria Ortiz, entered the apartment with large amounts of cocaine in their
possession. Mejia testified as a government witness. He stated that Suarez had
asked him to deliver a package to a third person, who never showed up, and that
he was simply returning the package containing cocaine to Suarez but that he
did not know it contained drugs. He also testified that Suarez admitted to him
that he was in the business of selling drugs and that the other people in the
apartment worked for him. He also testified that on one occasion in his
presence Suarez had asked the codefendant Fernandez to get a "piece"
from the third-floor apartment, and that he understood "piece" to
mean drugs. Maria Ortiz testified that she lived in the third-floor apartment,
that on the day of the execution of the search warrant Suarez had asked her to
retrieve a backpack he had left in her apartment, and that she was simply
delivering the backpack to the defendant but did not know that it contained
cocaine. In the backpack was a package that contained more than 200 grams of
cocaine. The police also executed a search warrant for the third-floor
apartment and found cocaine in the apartment. This evidence was sufficient for
a fact finder to conclude beyond a reasonable doubt that Suarez either as
principal or as a joint venturer possessed the cocaine, weighing more than 200
grams, in Ortiz's backpack with the intent to distribute it.
(c) Jury instructions. Suarez contends that the judge's instructions on joint
venture were confusing and conflicting because they allegedly permitted him to
be convicted as a joint venturer if the jury found that he was engaged in a
joint venture with one or more of the defendants for either the cocaine
transported into the apartment by Ortiz or that transported by Mejia. Suarez is
arguing essentially that an instruction on joint venture liability should have
been limited to each individual transportation of cocaine and should have
included the person who transported it. Suarez did not object to the judge's
instructions at trial. Thus, our review is based on whether the judge's
instructions created a substantial risk of a miscarriage of justice.
Viewing the judge's instructions as a whole,
see Commonwealth v. Sarmanian, 426 Mass. 405, 408 (1998), we think the
instructions made clear that each indictment was to be viewed separately and
that Suarez could be convicted as a joint venturer on a specific indictment if
he engaged in a joint venture, with one or more of the other codefendants or
persons identified, to traffic in the cocaine transported into the apartment by
the person identified in that particular indictment. Our conclusion is
supported by the very fact that the jury found all of the defendants not guilty
of trafficking in the cocaine transported into the apartment by Mejia and only
Suarez and Arango guilty of trafficking in the cocaine transported into the
apartment by Ortiz.[3]
(d) Motion to suppress. Suarez argues that the
motion judge erred in denying his motion to suppress evidence on the ground
that the basis of the informants' knowledge and veracity set forth in the
affidavit, coupled with the independent observations of Suarez's activities in
the affidavit, were insufficient to establish probable cause. The application
for the search warrant was accompanied by a forty-eight page affidavit
detailing the police surveillance of Suarez's activities at
(e) Motion to sever. Suarez argues that his trial should have been severed from
that of Maria Ortiz based upon her statement that Suarez asked her to retrieve
his backpack from her apartment. Severance is required only where the defense
of a defendant and that of a codefendant are "antagonistic to the point of
being mutually exclusive," or where "the prejudice resulting from a
joint trial is so compelling that it prevents [the] defendant from obtaining a
fair trial." Commonwealth v. Stephens,
2. Arango's claims.
(a) Motion to dismiss. The defendant Arango
argues that the motion judge erred in denying her motion to dismiss the indictment.
For a grand jury to indict a defendant, the grand jury must hear sufficient
evidence to establish the identity of the accused and probable cause to arrest
her. Commonwealth v. McCarthy, 385
We summarize the evidence presented to the grand jury on the indictment. A
State police trooper testified that when he entered the apartment Arango was
seated in the kitchen with a cutting agent used in distributing cocaine in
plain view. Nearby the trooper found another cutting agent used in distributing
drugs. He also testified to finding in the apartment other accoutrements of
drug distribution activity, such as cell phones, beepers, a drug ledger, and
cash. A government witness testified that Arango worked for Suarez, whom he
identified as a drug dealer. Other evidence disclosed that Arango at first
admitted that she lived in the apartment but then denied it; that Suarez was
present in the apartment and admitted that he lived there; and that while
police were conducting the search of the apartment, Ortiz entered the apartment
carrying a backpack. A search of the backpack disclosed 1,000 grams of cocaine
hidden in it.
Arango argues that, although this evidence
showed that she was present in the apartment when Ortiz entered, the evidence
was insufficient to tie her to the drugs contained in Ortiz's backpack and,
therefore, the indictment should have been dismissed. The test by which the
indictment is measured is the sufficiency of the evidence for probable cause to
arrest. That standard has been defined as whether the grand jury heard
"reasonably trustworthy information . . . sufficient to warrant a prudent
man in believing that the defendant had committed or was committing an offense."
Commonwealth v. McCarthy, 385
Here, we think the evidence went beyond showing simply Arango's presence in the
apartment and supported an inference of Arango's involvement with the drugs in
Ortiz's backpack. One could reasonably infer from the presence in the apartment
of cutting agents and other accoutrements used for drug distribution that
Arango was engaged with Suarez as a joint venturer in the illegal distribution
of drugs and that Ortiz was making a delivery of drugs to Suarez and Arango for
the subsequent distribution of the same. As the evidence was sufficient to show
probable cause, the motion to dismiss was properly denied.
(b) Judge's instructions. The defendant claims that the judge erred in
instructing the jury that Arango could be found guilty of trafficking on a
theory of individual liability. We agree.
Although there was sufficient evidence to
convict her under a theory of joint venture -- such as her admission that she
resided in the apartment which contained accoutrements of drug dealing and her
subsequent denial of her residence therein after Ortiz entered the apartment,
from which one could infer that she knew Ortiz was making a delivery of drugs,
and the testimony by a government witness that she was part of the drug
distribution ring conducted by Suarez, who had requested Ortiz to deliver the
backpack containing the cocaine to the apartment -- the evidence was
insufficient to establish that she had the ability to exercise dominion or
control over the cocaine in Ortiz's backpack; without such proof of
constructive possession, her conviction of trafficking in cocaine on a theory
of individual liability could not be sustained.[4] See Commonwealth v.
Hernandez, 439 Mass. 688, 690-693 (2003). Because the verdict slip did not
identify the theory on which the jury found her guilty of this offense, the
guilty verdict on the charge of trafficking in cocaine must be set aside and
the judgment reversed.[5]
On the indictment charging Amparo Arango with trafficking in 200 grams or more
of cocaine transported into 71 Parker Street by Maria Ortiz, the judgment is
reversed and the verdict is set aside. On the indictment charging Francisco
Suarez with trafficking in 200 grams or more of cocaine, the judgment is
affirmed.
So ordered.
FOOTNOTES:
[1] Commonwealth vs. Amparo Arango.
[2] Juror Demaina was challenged by defendant Suarez.
Juror Clemente was challenged by a codefendant, Jose Fernandez.
[3] Fernandez and Ortiz were found not guilty on both
indictments.
[4] The defendant Arango also claims that the judge
erred in denying her motion for a required finding of not guilty. Although the
defendant Arango was entitled to a required finding on the theory of principal
liability, she was not for the reason explicated above entitled to a required
finding on the theory of joint venture.
[5] Because we are reversing Arango's conviction, we
need not discuss her other claims of error.