COMMONWEALTH v. Daryn SAMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Daryn Sampson, appeals from judgments of conviction, after a jury trial, on indictments charging involuntary manslaughter, G. L. c. 265, § 13; distribution of a class A substance (heroin), G. L. c. 94C, § 32 (a); and possession with intent to distribute a class A substance (heroin), G. L. c. 94C, § 32 (a).2 We affirm.
Discussion. 1. Motion to suppress cell phone evidence. The defendant was arrested during the execution of a warrant to search the apartment of codefendant Gilka Rolon-Arroyo for evidence of heroin distribution.3 The affidavit in support of this warrant recited that Rolon-Arroyo's customers “may be present at various hours and stay only a brief period of time,” and may possess drugs, money, or weapons. Accordingly, the application sought permission for, and the warrant authorized, the search of “any person present” for evidence related to heroin dealing, including “books, papers, records, documents, currency, implements (including cell phones or other types of electronic devices), [and] paraphernalia.” When the police went to execute the warrant, they detained the defendant, Rolon-Arroyo, and two children who were leaving the premises and getting into a car. After searching the apartment and obtaining admissions from the defendant, the police arrested him and took possession of his cell phone. The police later obtained a warrant to search the contents of the defendant's cell phone.4
a. Denial of Franks hearing.5 The defendant filed a motion to suppress the evidence extracted from his cell phone based on numerous grounds. Among these, he argued that the warrant to search Rolon-Arroyo's apartment did not permit his arrest or the seizure of his cell phone because he was not named in the warrant and, as a resident of the apartment, was not covered by the “any person present” provision. See Commonwealth v. Brown, 68 Mass. App. Ct. 261, 265 (2007), quoting Commonwealth v. Smith, 370 Mass. 335, 344 (1976), cert. denied, 429 U.S. 944 (1976) (“The authorization to search any person present is directed principally at persons other than those ‘identifiable persons known to be on the premises to be searched’ ”). The motion judge rejected this claim, reasoning that within the “four corners” of the warrant, his arrest as “any person present” and the seizure of his cell phone were authorized. She added that the defendant failed to “support his argument (or rather implication) that police reports written after [the execution of the warrant] show that police knew before that date” that the defendant resided at the apartment.
The defendant filed a motion to reconsider and, for the first time, a request for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). In support of his request he relied on a police report written the day the warrant was executed. The police report, which was written after the search took place, stated that the defendant “was identified through our investigation as someone who lives at [Rolon-Arroyo's] apartment.” The same motion judge denied the request for a Franks hearing in a margin endorsement.
A defendant is entitled to a Franks hearing if he “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” Franks, 438 U.S. at 155-156. See Commonwealth v. Amral, 407 Mass. 511, 519-520 (1990). “Intentionally or recklessly omitted material may also form the basis for mounting a challenge under Franks[, supra].” Commonwealth v. Long, 454 Mass. 542, 552 (2009). We review the denial of a motion for a Franks hearing under the abuse of discretion standard. See Commonwealth v. Perez, 87 Mass. App. Ct. 278, 285 (2015).
The defendant failed to make a substantial preliminary showing that the officer who wrote the affidavit, who was also the author of the police report, knew, and purposely omitted, that the defendant lived in the apartment. As the motion judge suggested in the initial denial of the motion to suppress, the police report did not establish that the police knew that the defendant lived in the apartment before they sought the warrant. To the contrary, the police report suggested that the police learned that the defendant lived in the apartment during the execution of the search warrant. For example, the police report stated that during the search the defendant told an officer that he was a heroin user, that cocaine found in the bathroom belonged to him, and that he lived in the apartment, from which the police concluded that he “was aware [of] and participated in Gilka Rolon-Arroyo's heroin distribution.” The police also found mail in the apartment addressed to the defendant at that address. The police report thus did not establish the affiant's prior knowledge that the defendant lived in the apartment and did not “raise[ ] enough inferences of police misconduct to warrant further inquiry at a Franks hearing.” Commonwealth v. Ramirez, 416 Mass. 41, 52 (1993). The motion judge did not abuse her discretion in denying the defendant's request.
b. Cell phone search. The defendant further asserts that his motion to suppress should have been allowed because the affidavit in support of the application for the warrant to search his cell phone (cell phone affidavit) did not establish probable cause that evidence of a crime would be found on the cell phone, and that the police unreasonably delayed seeking the warrant.
“[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit.’ ” Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). The cell phone affidavit recited that when the police executed the warrant to search Rolon-Arroyo's apartment, they arrested Rolon-Arroyo for distribution of heroin and the defendant “for knowingly being present where heroin is kept” and for possession of cocaine. The police seized two cell phones that Rolon-Arroyo was holding and “a black Samsung phone on [the defendant's] person.” They obtained a warrant to search Rolon-Arroyo's phones two days later.6 Data extracted from those phones included daily calls and text messages between Rolon-Arroyo and the defendant showing that the defendant was involved in Rolon-Arroyo's heroin distribution business. Rolon-Arroyo contacted the defendant at a telephone number ending in 5437, which she had saved under the contact “Darren” on both cell phones. The police department's database listed the 5437 number as a previous telephone number for the defendant. The search warrant application sought authorization to search the black Samsung cell phone seized from the defendant at the time of his arrest. The cell phone affidavit did not associate this cell phone with any particular telephone number; indeed, the warrant sought to search the black Samsung cell phone for “[a]ny data identifying the cellular telephone, including but not limited to, phone number.”7
When police seek a warrant to search a cell phone, the affidavit must establish “a sufficient nexus between the cell phone[ ] and the crime.” Commonwealth v. Arthur, 94 Mass. App. Ct. 161, 166 (2018). “[E]ven where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there.” Commonwealth v. White, 475 Mass. 583, 590-591 (2016).
The defendant concedes that the cell phone affidavit established that he communicated with Rolon-Arroyo about drug sales using the 5437 number, but asserts that the “police knew nothing about the cell phone they seized from” the defendant. We are satisfied that the cell phone affidavit provided a substantial basis to conclude that the police would find evidence of drug dealing on the cell phone seized from the defendant on the day of the arrest. See Commonwealth v. Richardson, 479 Mass. 344, 351 (2018). The defendant had been using a cell phone daily, as recently as the day before the arrest, to communicate with Rolon-Arroyo about heroin sales. It was reasonable for the police to believe that the only known cell phone belonging to the defendant, which he was carrying on the day he was arrested in Rolon-Arroyo's presence, would include, as the cell phone affidavit stated, “evidence in the form of text messages, photographs, videos, emails, [and] social media messages and posts ․ that [would] further prove that [the defendant] was selling and buying heroin.” See Commonwealth v. Perkins, 478 Mass. 97, 105-106 (2017) (affidavit establishing that “police had detailed and specific knowledge concerning the defendant's use of a cellular telephone to arrange drug transactions, and a particular telephone number with which that cellular telephone had been in contact at a specific time,” provided probable cause to seize nine telephones from defendant's apartment).
Finally, the four-week delay between the seizure of the defendant's cell phone on February 9, 2016, and the application for a warrant to search the cell phone on March 8, 2016, did not violate the Fourth Amendment to the United States Constitution. White, 475 Mass. at 593-595, on which the defendant relies, involved a ten-week delay between the warrantless seizure of a cell phone and the application for a warrant to search it. Here, the defendant's and Rolon-Arroyo's cell phones were seized pursuant to a warrant. Thus, “the police were already lawfully in possession of the cell phones.” Arthur, 94 Mass. App. Ct. at 165. Assuming without deciding that the balancing test employed in White, supra, applies in the circumstances of this case, the four-week delay, which included the time necessary to obtain a warrant to search Rolon-Arroyo's cell phones, and to extract data from them to establish the link to the defendant's cell phone, was not unreasonable.
3. Motion to sever. The Commonwealth moved for joinder of the defendant's and Rolon-Arroyo's trials under Mass. R. Crim. P. 9 (b), 378 Mass. 859 (1979). The defendants moved for relief from prejudicial joinder on the ground that their defenses were mutually incompatible. See Mass. R. Crim. P. 9 (d), 378 Mass. 859 (1979). After a hearing, the motion judge 8 allowed the Commonwealth's motion for joinder and denied the defendants’ motions to sever. In addition, the defendants moved for a mistrial on grounds of prejudicial joinder after opening statements. The trial judge denied the motion.
“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’ ” (citation omitted). Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 118 (2003). Defenses are mutually antagonistic “where the acceptance of one party's defense will preclude the acquittal of the other.” Commonwealth v. Moran, 387 Mass. 644, 657 (1982), quoting United States v. Ziperstein, 601 F.2d 281, 285 (7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980). “Severance is not required where the defendants merely assert inconsistent trial strategies,” Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011), “are hostile to one another[,] or ․ would have a better chance of acquittal if tried alone,” Commonwealth v. McAfee, 430 Mass. 483, 486 (1999). Moreover, “even mutually antagonistic and irreconcilable defenses do not require severance if there is sufficient other evidence of guilt.” Commonwealth v. Vasquez, 462 Mass. 827, 838 (2012).
We review a judge's decision to deny a motion to sever for abuse of discretion. See Commonwealth v. Akara, 465 Mass. 245, 256 (2013); McAfee, 430 Mass. at 485-486. “Abuse of discretion occurs when the prejudice to the party asking for severance is so overwhelming that it prevents a fair trial.” Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 205 (1998).
The defendant contends that “the only available defense to either defendant was that he or she was not criminally responsible because the other was.” This was not the case. To be sure, each defendant, through arguments and cross-examination, sought to establish that the other was the one who supplied the victim, Rebekah Swotchak, with the lethal dose of heroin. However, neither defendant's “only realistic defense” was the other's guilt. Commonwealth v. Cordeiro, 401 Mass. 843, 853 (1988). See Akara, 465 Mass. at 256; Moran, 387 Mass. at 656. The defendant's and Rolon-Arroyo's trial counsel both pursued lines of questioning and made arguments suggestive of alternate defense theories, including that Swotchak communicated with a third party after her final text to the defendant but before she died, that a third party provided the lethal dose of drugs to her, or that heroin did not cause her death. Thus, the defense theories “created no inference of mutual exclusion, i.e., that either [the defendant] or [Rolon-Arroyo] were involved in the [crimes], but not both.” Siny Van Tran, 460 Mass. at 543. Nor did their defenses “compel the jury to accept one defense and reject the other. They could reject both.” Vasquez, 462 Mass. at 838.
Furthermore, even if the defenses were mutually antagonistic, the denial of the motion to sever was not an abuse of discretion “because there was ‘considerable independent evidence’ of the guilt of each defendant.” Akara, 465 Mass. at 257, quoting Vasquez, 462 Mass. at 838. Neither defendant testified or offered any evidence against the other. Independent evidence 9 showed that the defendant and Rolon-Arroyo communicated regularly about selling heroin, that they discussed Swotchak's near overdose that occurred a week before her death, and that the defendant communicated with Swotchak frequently about supplying her with drugs. The defendants’ blaming each other for selling the lethal dose “created no inference of mutual exclusion․ There was ample evidence to support a theory of joint venture.” Siny Van Tran, 460 Mass. at 543. Any prejudice arising from trying the defendants together was not so overwhelming as to deprive the defendant of a fair trial. The motion judge did not abuse his discretion in denying the defendant's motion to sever. Likewise, the trial judge did not abuse his discretion in denying the defendant's motion for a mistrial after opening statements.
4. Evidence of Rolon-Arroyo's state of mind. The evidence admitted at trial included Rolon-Arroyo's admission that she had seen Swotchak the night before she was found dead, in the same position in which she was found, but did not call for help because she thought Swotchak had merely “passed out.” The evidence also included text messages between Rolon-Arroyo and a contact named “White Boy” regarding the potency of the heroin that Rolon-Arroyo was selling. The defendant did not object to this evidence, nor did he request a limiting instruction.
Assuming without deciding that this evidence was admissible solely against Rolon-Arroyo but not against the defendant, any error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Silva, 431 Mass. 401, 405 (2000). In applying this standard of review, we take into account the theory on which the defendant tried the case. See id. See also Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (in determining whether unpreserved error created substantial risk of miscarriage of justice, we consider whether failure to object may have been tactical decision). As discussed supra, the defendant's theory was that Rolon-Arroyo or a third party, but not he, supplied the fatal dose of heroin. In this regard, the evidence that Rolon-Arroyo saw Swotchak after she overdosed but did not call for help tended to cast responsibility for Swotchak's death on Rolon-Arroyo and away from the defendant.
Similarly, Rolon-Arroyo's communications with “White Boy” were probative of her guilt, as they showed that she was aware of the strength of the product she was selling, but did not implicate the defendant. Indeed, in closing, the prosecutor argued that the evidence of the “White Boy” text messages (as well as the evidence of Rolon-Arroyo's inaction in the face of Swotchak's overdose) proved Rolon-Arroyo's guilt; the prosecutor did not use this evidence against the defendant. To the extent the “White Boy” text messages were imputed to the defendant, they were “cumulative of other, properly admitted evidence,” Commonwealth v. Resende, 476 Mass. 141, 152 (2017), such as text messages indicating that the defendant had been with Swotchak during her near overdose and that he knew the heroin he was selling her was strong.10 We discern no substantial risk of a miscarriage of justice.
5. Sufficiency of the evidence of involuntary manslaughter. The evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty of manslaughter by supplying Swotchak with heroin, knowing the potency of his product and her susceptibility to overdose. See generally Commonwealth v. Carrillo, 483 Mass. 269, 271-287 (2019). In evaluating the sufficiency of the evidence, we “consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The defendant asserts that the Commonwealth offered no direct evidence that he or Rolon-Arroyo sold Swotchak the heroin that caused her death. We disagree. The text messages between the defendant and Swotchak on the day she died -- in which she asked to “buy some more bags off” the defendant, and he referred her to Rolon-Arroyo “upstairs” -- permitted the inference that Swotchak purchased the lethal dose of heroin from Rolon-Arroyo at the defendant's direction. Moreover, the circumstantial evidence that the defendant and Rolon-Arroyo, acting together, supplied the heroin labeled “Bugatti” that caused Swotchak's death was extremely strong. See Commonwealth v. O'Laughlin, 446 Mass. 188, 198-199 (2006) (Commonwealth “may rely wholly on circumstantial evidence,” and inferences drawn “need be only reasonable and possible, not necessary” [citation omitted]).
Text messages showed that Swotchak regularly asked the defendant for heroin in the weeks leading up to her death, including the day before she died. The defendant obliged, selling or giving her heroin on more than one occasion. The defendant and Rolon-Arroyo also exchanged text messages with Swotchak and with each other about Swotchak providing services to Rolon-Arroyo in exchange for “Bugatti” heroin. A supply of “Bugatti” heroin was found in the apartment shared by the defendant and Rolon-Arroyo, and bags of the same were found in Swotchak's bedroom and on her person. The chemical and toxicology evidence showed that heroin and fentanyl were found both in Swotchak's bloodstream and the “Bugatti” heroin.
The defendant observes that bags of heroin with other brand names, not associated with him or Rolon-Arroyo, were found in Swotchak's bedroom, and that the cutting agents in the “Bugatti” heroin were not found in her blood.11 “However, ‘the Government ․ need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt.’ ” Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 628 (2000), quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989). The evidence was sufficient.
6. Substitute medical examiner's testimony. At trial, Dr. Robert Welton, a medical examiner who did not perform Swotchak's autopsy, impermissibly testified about the contents of medical examiner Dr. Andrew Sexton's autopsy report. Specifically, Welton testified that Sexton's report noted that Swotchak's lungs were “heavy” and “that there was pulmonary edema, or fluid in the lungs.” This aspect of Welton's testimony was improper (as the Commonwealth concedes). See Commonwealth v. Phim, 462 Mass. 470, 479 (2012) (“substitute medical examiner may not testify on direct examination to the facts, data, and conclusions stated in an autopsy report”).12 As the defendant did not object, we review under the substantial risk of a miscarriage of justice standard. See id. at 479-480; Commonwealth v. Nardi, 452 Mass. 379, 394 (2008).
We are confident that Welton's reference to the autopsy report had no effect on the outcome of the trial. The fact that Swotchak died from a drug overdose was not, as the defendant argues in his brief, “very much a disputed issue.” Commonwealth v. Durand, 457 Mass. 574, 587 (2010). To the contrary, in his opening statement, counsel for the defendant stated, “Now the question in this case is not going to be how [Swotchak] died.” The unobjected-to admission of details concerning the state of Swotchak's lungs at the time of her death did not create a substantial risk of a miscarriage of justice.
7. Victim's awareness of risk. We have carefully reviewed the claim raised by the defendant in his brief submitted under Commonwealth v. Moffett, 383 Mass. 201, 216-217 (1981). The defendant contends that there is insufficient evidence to sustain his manslaughter conviction because both he and Swotchak “were equally aware that the heroin [Swotchak] was using created a high probability of overdose or death.” This argument is without merit. “[W]hen specific evidence of circumstances increasing the risk of harm is proved, a distribution of heroin resulting in death may be punished as involuntary manslaughter.” Carrillo, 483 Mass. at 283.
2. The jury acquitted the defendant of distribution of a class B substance (fentanyl) and possession with intent to distribute a class B substance (fentanyl), G. L. c. 94C, § 32A (a).
3. The defendant was tried together with Rolon-Arroyo, who filed a separate appeal. See Commonwealth vs. Rolon-Arroyo, A.C. No. 19-P-1056.
4. The warrant to search the defendant's cell phone was the third warrant obtained in the investigation of this case, following the warrant to search Rolon-Arroyo's apartment and a warrant to search the two cell phones seized from Rolon-Arroyo at the time of her arrest.
5. See Franks v. Delaware, 438 U.S. 154 (1978).
6. The cell phone affidavit states that the police sought the warrant for Rolon-Arroyo's phones on February 11, 2016, two days after the search; however, the affidavit and application for that warrant were actually dated February 23, 2016. The discrepancy is immaterial.
7. The judge's ruling on the motion to suppress erroneously stated that “police sought and obtained a warrant to search [the defendant's] seized cell phone with telephone number ․ 9394.” However, the police did not seek, and the warrant did not authorize, the search of a cell phone with a number ending in 9394. When the police seized the defendant's cell phone, they tagged it with an identification number and secured it at the police station. The 9394 number, which was listed as the defendant's current telephone number in the police department's database, was placed on the tag. After performing the data extraction from the black Samsung cell phone, the police confirmed that it was associated with the 5437 number. The mistaken references to the 9394 number on the evidence tag and in the motion judge's findings did not alter the validity of the warrant to search the cell phone seized from the defendant or the search of that phone conducted pursuant to the warrant.
8. The judge who acted on the motion for severance was not the same judge who acted on the suppression motions, and neither of these judges was the trial judge.
9. “For purposes of severance, independent evidence is evidence that is not offered by one defendant against another at their joint trial.” Vasquez, 462 Mass. at 838 n.10.
10. Three days after Swotchak almost overdosed, she contacted the defendant asking to buy three more bags of heroin. He asked if the bags were “for [her]” and stated that the heroin he currently had was “even stronger,” so she “probably only need[ed] one.” He indicated that the price was higher because “they are so strong,” and warned her to “[s]tart with like half.”
11. The cutting agents caffeine, quinine, and noscapine were found in the “Bugatti” heroin. Noscapine and quinine were not found in Swotchak's blood (a test for caffeine was not conducted), but the toxicologist explained that they might have been present in levels too low to detect.
12. Welton's testimony that this condition “can be” consistent with a heroin or fentanyl overdose was proper, as it was based on his own expertise, see Commonwealth v. Leiva, 484 Mass. 766, 792 (2020), as was his ultimate opinion that Swotchak died of “acute heroin and fentanyl intoxication” (as the defendant concedes).
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