COMMONWEALTH v. VAN PHAM (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant was found guilty of distribution of a class B substance. On appeal, he argues that the introduction of certain evidence created a substantial risk of a miscarriage of justice and that defense counsel was ineffective.² We affirm.

1. Background. On July 31, 2018, an undercover Worcester police officer arranged to purchase “crack” cocaine. After placing a telephone call to the defendant and agreeing to an amount of crack and a location to meet, police officers recorded the serial numbers on twenty-dollar bills to be used in the transaction. After the transaction was completed at the prearranged location, the defendant was arrested. The previously recorded twenty-dollar bills were found on his person. The undercover officer who participated in the transaction testified at trial about her interactions with the defendant in completing the transaction.

2. Discussion. Evidentiary claims. The defendant contends that so-called associational testimony was improperly admitted. Specifically, he claims error in the admission of testimony that: (1) officers received a telephone number for the defendant, called it and spoke with him;³ (2) officers agreed to buy drugs from the defendant in a high crime area in which he lived;⁴ (3) the defendant sold drugs to an undercover police officer; and (4) the transaction was consonant with a controlled drug transaction.⁵ Because there was no objection, we review to determine if error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Grady, 474 Mass. 715, 722 (2016).

The transaction itself formed the basis for the charge against the defendant. The evidence of the location of the transaction and events leading up to it, viewed through the lens of a trained police officer, was relevant and proper. See Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539-540 (2012) (police officer permitted to rely on training and experience and to explain common characteristics of street level narcotics transactions). See also Mass. G. Evid. § 602 (2019). Additionally, “[a] telephone conversation between a witness and a person the witness ha[s] never met may be admitted when confirming circumstances tend to authenticate the identity of the other person ․” Commonwealth v. Anderson, 404 Mass. 767, 770 (1989). Here, police officers’ direct observations of and contact with the defendant confirmed his identity as the person who arranged and completed the drug transaction.

The defendant's reliance on Commonwealth v. Woods, 419 Mass. 366 (1995), is misplaced. In Woods, after observing a drug transaction, the officer testified that, “in his opinion, ‘a drug transaction had just taken place.’ ” Id. at 368. In concluding that this evidence was improper, the Court reasoned that it was tantamount to an “expert opinion that the defendant was guilty of the charges.” Id. at 375. By contrast, here the officer testified, based on his experience in over one hundred undercover street level drug transactions, how these transactions “work[ ].” He was then asked whether “this [method] was something that [police] used [here]?” He answered, “Yes.” The officer did not opine that the defendant was guilty. See Commonwealth v. Kennedy, 426 Mass. 703, 706 (1998) (preferable for officer to describe typical drug deal to explain facts meaningful to police but not common knowledge).

The defendant also argues that the officers’ credibility was enhanced by the admission of this evidence and therefore it was admitted in error. As discussed supra, there was overwhelming evidence of the defendant's guilt, including the officers’ direct observations of the events (and particularly including testimony from the undercover officer who participated directly in the transaction) and the defendant's possession of the marked bills less than one minute after the transaction was completed. See Commonwealth v. Reeder, 73 Mass. App. Ct. 750, 755 (2009) (evidence overwhelming when officer witnessed hand-to-hand drug transactions between undercover detective and defendant).

Because there was no error in the admission of the challenged evidence, the defendant's claim that the prosecutor's reference to it in closing argument was error also fails. See Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 313 (2011) (prosecutors must confine arguments to facts in evidence and reasonable inferences). Moreover, there was no objection at trial, nor a request for a curative instruction, which is some evidence that the remarks were not unfairly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985).

Ineffective assistance of counsel. “[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Here, it is presented in its weakest form, as it is raised for the first time on appeal. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Generally, to prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that counsel's “serious incompetency, inefficiency, or inattention,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016). Because there was no error in the admission of the contested evidence, defense counsel was not ineffective for not challenging its admission.⁶

Judgment affirmed.

FOOTNOTES

2.   The judge denied the defendant's motion to revise and revoke sentence. He makes no argument about this on appeal.

3.   The parties stipulated that the Commonwealth would not elicit information regarding the confidential informant who provided the defendant's telephone number to police.

4.   None of the officers testified that they had previously seen the defendant in an area where drugs were commonly sold and arrests for drug dealings had been made.

5.   Better practice would be to ask whether the police officers’ observations were consistent with a typical drug transaction.

6.   Given our conclusions, the defendant's claims that the alleged errors cumulatively created a substantial risk of a miscarriage of justice must also fail.