COMMONWEALTH v. ROCHA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of possession with the intent to distribute a class A substance (heroin), in violation of G. L. c. 94C, § 32 (a). On appeal, the defendant contends that the trial judge committed reversible error when he excluded the defendant's statement that he was “a heroin addict” from the Commonwealth's case-in-chief. We affirm.

Background. On July 28, 2016, at approximately 10:30 p.m., a Fall River police officer was patrolling in his cruiser when he saw the defendant walking alone alongside the street. After the defendant turned around and looked at the officer three times, the officer pulled his cruiser over, got out, and approached the defendant. The defendant then dropped a black bag the size of a baseball or softball to the ground. The officer picked the bag up and saw that it held bundles of blue glassine or wax-type bags, each containing a white powdery substance he believed to be heroin. The officer asked the defendant how many bags of heroin were in the bag. The defendant replied, “Approximately 300 bags.”²

Discussion. Just before the start of trial, the prosecutor moved to admit the defendant's statement that there were approximately 300 bags of heroin in the black bag. He argued that the defendant's subsequent explanation, that he was a heroin addict, was a separate statement that should be “split” and excluded as self-serving hearsay. The defendant objected. The judge ruled that the defendant's statement that he was a heroin addict “was not going to come in through anybody except the [d]efendant.” On appeal, the defendant argues that the judge erred and that he was prejudiced as a result.

We review the trial judge's exclusion of the defendant's statement under an abuse of discretion standard. See Commonwealth v. Crayton, 470 Mass. 228, 248 (2014) (reviewing refusal to admit evidence via doctrine of verbal completeness under abuse of discretion standard). A judge's decision constitutes an abuse of discretion where the judge made a clear error in weighing the relevant factors such that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant argues that his statement that he was a drug addict should have been admitted under the doctrine of verbal completeness through the arresting officer's testimony in the Commonwealth's case-in-chief.³ Under the doctrine of verbal completeness, when a party introduces a portion of a statement or writing into evidence, the judge has the discretion to “allow[ ] admission of other relevant portions of the same statement or writing which serve to ‘clarify the context’ of the admitted portion” (quotation and citation omitted). Crayton, 470 Mass. at 246. However, for other relevant portions to be admitted, the additional portions of the statement must be “(1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement.” Commonwealth v. Amaral, 482 Mass. 496, 504 (2019), quoting Crayton, supra at 247. Mere relevance of the additional portions is an insufficient basis for admissibility. Amaral, supra.

The parties do not appear to dispute that the defendant's statement that he was a heroin addict was on the same subject and part of the same conversation as his statement that the black bag contained approximately 300 bags of heroin. Therefore, the admissibility of the excluded statement rests on whether it was necessary to the understanding of the admitted statement. See Amaral, 482 Mass. at 504.

Here, the defendant's statement that he had approximately 300 bags was in response to the officer's question of how many bags of heroin he had. Although the defendant's subsequent statement that he was an addict provided an explanation for his possession of heroin, it was not necessary to understand his answer that he had 300 hundred bags. Nor did the admitted statement, standing alone, unfairly imply that the defendant was admitting to being a drug dealer. At most, it signified knowing possession of heroin, which would have been the same whether he was a drug dealer or a drug addict. Compare Crayton, 470 Mass. at 247 (given admission of defendant's acknowledgment that he used certain computer, defendant's denial that he used it to view child pornography was necessary to understand admitted statements because, otherwise, jury may have understood acknowledgement as implied admission to having viewed child pornography), with Commonwealth v. Eugene, 438 Mass. 343, 351 (2003) (defendant's statements regarding earlier events were not necessary to understand admitted statement because no risk of misleading jury).

Even if the defendant's statement that he was an addict could be seen to clarify the context of his statement that there were 300 bags of heroin in the black bag, the trial judge's conclusion that it was not necessary to an understanding of the statement does not fall outside the range of reasonable alternatives. See L.L., 470 Mass. at 185 n.27. Therefore, the trial judge's decision to exclude the defendant's statement that he was a heroin addict was not an abuse of discretion. We need not reach the defendant's remaining arguments concerning prejudice as we find no error.

Judgment affirmed.

FOOTNOTES

2.   Later examination of the black bag confirmed 340 packets of heroin. In addition, at booking, police recovered $896 in folded cash from the defendant. The manner in which the heroin was packaged and the cash folded were consistent with street-level drug distribution.

3.   The defendant also argues that the statement should have been admitted as a statement against penal interest. However, we reject this argument because a statement against penal interest must be made by a witness who is not a party to the litigation. See Commonwealth v. McLaughlin, 433 Mass. 558, 565 (2001).