COMMONWEALTH v. OSORIO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of trafficking thirty-six grams or more, but less than one hundred grams, of a class B substance in violation of G. L. c. 94C, § 32E (b) (2). He raises two arguments on appeal. First, he asserts that the judge was required to make an independent assessment of the voluntariness of statements made by the defendant during a police interview before the recording of that interview was shown to the jury. Second, he argues that certain pieces of evidence were improperly admitted and that the prejudice caused by these admissions was compounded by the lack of proper limiting instructions. We affirm.

Background. The defendant was arrested after police executed a search warrant on his minivan and discovered two hundred individual bags of crack cocaine.² The defendant asked to speak with the officers, but was told that any conversation would not take place at the scene. Two days after his arrest, the defendant requested to speak with officers again. The defendant was informed of his Miranda rights, indicated that he understood each of those rights, signed a waiver, and spoke with Detective Todd Boldy of the Attleboro Police Department and Detective Scott Sullivan of the Pawtucket Police Department for nearly an hour. The defendant made several incriminating statements during the interview.

Before trial, the defendant did not file a motion to suppress the video recording of the interview. During its case, the Commonwealth sought to introduce in evidence a five-minute portion of the video. At this point the defendant objected, first citing Miranda, and then the humane practice doctrine. The judge overruled the objection, stating that there was no evidence suggesting that the statements made by the defendant during the interview were involuntary.

Discussion. 1. Humane practice. Even if the defendant does not raise the issue of voluntariness, a trial judge is required, sua sponte, to conduct a voir dire if voluntariness is a live issue at trial. See Commonwealth v. Stroyny, 435 Mass. 635, 646, 760 N.E.2d 1201 (2002). Voluntariness is a live issue at trial when substantial evidence is produced that the statements were not voluntarily made. See Commonwealth v. Kirwan, 448 Mass. 304, 318, 860 N.E.2d 931 (2007). “[I]f the voluntariness of the statements is not a ‘live issue’ at trial, there is no obligation for the judge either to conduct a voir dire, or to instruct the jury on the humane practice rule.” Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 274, 705 N.E.2d 307 (1999). Here, after the Commonwealth sought to admit the video in evidence, the defendant did not proffer any evidence of involuntariness to support his objection. The defendant also did not ask the judge to conduct a voir dire or to watch the video outside of the jury's presence. This naked objection -- lacking any supporting evidence -- was insufficient to raise the issue of involuntariness, and therefore did not trigger the requirement to hold a voir dire.

In response to the defendant's objection, the judge explicitly stated, “I've seen nothing that suggests to me that it wasn't voluntarily made -- that the statement wasn't voluntarily made ․” Our review of the record before us supports the judge's view. Put simply, voluntariness was not a live issue at trial, and we discern no error in that determination where the defendant offered no evidence to support the claim of involuntariness.³ The judge was therefore not required to conduct a voir dire before the video was shown to the jury, and was not required to submit the issue of voluntariness to the jury.⁴

2. Evidentiary issues. The defendant contends that it was error to admit “prior bad act” evidence seized from both the search of the defendant's minivan and the search of the Rhode Island apartment where he resided. This evidence included sandwich bags with the corners removed, a digital scale, an “EBT” card, razor blades and cards with white residue, two cell phones, and the text messages on those cell phones. These pieces of evidence were neither “prior” nor “bad acts,” but rather relevant and contemporaneous corroboration of the defendant's alleged drug trafficking. “By design, all evidence is meant to be prejudicial; it is only unfair prejudice that must be avoided.” Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188, 993 N.E.2d 1222 (2013), quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). Any prejudice caused by the admission of this evidence “flowed directly from [its] properly probative effect to illustrate” the defendant's contemporaneous involvement in drug trafficking. Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 758, 54 N.E.3d 1120 (2016). “The prejudice, in other words, was not unfair.” Id. Therefore, the evidence was properly admitted and no limiting instructions were required. See Mass. G. Evid. § 403 (2019).

Judgment affirmed.

FOOTNOTES

2.   The defendant and two women were present in the minivan when the search warrant was executed. The drugs in question were found in one of the women's bras; she testified that she would often hold drugs for the defendant in exchange for drugs.

3.   In fact, the record reflects that the defendant sought out the interview of his own volition.

4.   We note that the judge nonetheless gave the humane practice instruction to the jury at the close of trial.

RESCRIPT