COMMONWEALTH v. PEREIRA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, the defendant, Paul Pereira, was convicted of several drug and firearm related charges, including conspiracy to traffic in 200 grams or more of cocaine in violation of G. L. c. 94C, § 40. With one exception not relevant here, the convictions were affirmed on appeal. See Commonwealth v. Pereira, 84 Mass. App. Ct. 1135 (2014). Thereafter, acting pro se, the defendant filed a motion for a new trial, challenging the convictions on several grounds. The motion was denied by the trial judge in a written memorandum of decision without an evidentiary hearing. Represented by new counsel on appeal, the defendant argues that to the extent his motion alleged ineffective assistance of counsel, it should have been allowed. He further claims that the judge abused his discretion by not holding an evidentiary hearing. We affirm.

Motion for new trial. A judge's decision in denying a motion for a new trial “lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802 (2000). “We afford special deference to the factual findings” of that judge, particularly when he or she was also the trial judge. Commonwealth v. Pillai, 445 Mass. 175, 185 (2005), quoting Commonwealth v. Zagrodny, 443 Mass. 93, 103 (2004).

Ineffective assistance of counsel.² The defendant claims that he was prejudiced by expert testimony provided by a State trooper who was also a percipient witness and had participated in the six-month long investigation which led to the defendant's arrest.³ That investigation included a wiretap; the trooper testified to his understanding of intercepted telephone calls between the defendant and a coconspirator, Michael Martin, in which Martin told the defendant that “instead of nine, [the defendant should] get ten or eleven[,]” and the defendant replied, “[a]lright. Ten.” The trooper opined that the numerical references represented quantities of cocaine, measured in ounces -- a question critical to the defendant's conviction for conspiracy to traffic more than 200 grams of cocaine. See G. L. c. 94C, § 32E (b) (4). The defendant argues that trial counsel was ineffective because he failed to object to this testimony. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We disagree.

To begin with, the record does not support the defendant's claim. In fact, trial counsel objected at several points during the trooper's testimony. Moreover, it is clear that the judge understood the defendant's objection to be to the trooper's interpretation of the intercepted telephone call. Because it is evident that trial counsel did object, there is no basis for concluding that the defendant received ineffective assistance of counsel. See Saferian, 366 Mass. at 96.

In any event, even if trial counsel had not objected, the defendant would fare no better because the testimony at issue was admissible. Commonwealth v. Rosa, 468 Mass. 231, 240 n.12 (2014), quoting United States v. Baptiste, 596 F.3d 214, 222 & n.6 (4th Cir. 2010) (“[e]xpert testimony may be admitted to explain the meaning of conversations conducted in ‘street-level jargon,’ or other coded language”). See Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539 (2012) (admission of expert testimony reviewed for abuse of discretion or error of law). We are unpersuaded by the defendant's argument that the trooper's opinion was inadmissible because it was “based on conjecture,” rather than fact. There was evidence that the defendant was buying cocaine from a supplier, and then selling cocaine to individual buyers. The trooper testified that he interpreted the numerical references in the defendant's order of cocaine from his supplier as representing ounces of cocaine based on the fact that the police had observed the defendant selling cocaine in increments of less than an ounce.⁴ That a drug dealer would purchase cocaine in quantities larger than those in which he sold the drugs to individual buyers was a reasonable inference from the facts. See Commonwealth v. Dostie, 425 Mass. 372, 376 (1997) (“We have prohibited the drawing of speculative inferences, but have not otherwise prohibited the drawing of one inference based on another inference”).

Evidentiary hearing. The judge did not abuse his discretion in denying the defendant's motion for a new trial. See Medina, 430 Mass. at 802. A judge may rule on a motion for a new trial without an evidentiary hearing where the motion and materials do not raise a “substantial issue.” Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). No substantial issue requiring an evidentiary hearing was raised here. See Commonwealth v. Torres, 469 Mass. 398, 406 (2014).

Order denying motion for new trial affirmed.

FOOTNOTES

2.   While the defendant's motion for a new trial alleges shortcomings of both trial counsel and appellate counsel, at oral argument, defendant's appellate counsel conceded that the thrust of the defendant's arguments on appeal was on the ineffectiveness of trial counsel.

3.   While in this case, adequate care was taken to avoid the “many potential pitfalls” associated with the Commonwealth's presentation of a percipient police witness as an expert, Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998), we note that “[i]t is easy for the line between specific observations and expert generalizations to become blurred in these situations,” and we reaffirm that the practice should be avoided. Id.

4.   The trooper's opinion that the defendant was speaking in terms of ounces, despite his testimony that the defendant “could have been” referring to his order in terms of kilograms, is, in our view, further support that his testimony was based on the evidence and not on speculation.