COMMONWEALTH v. JACKSON (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant, Joseph Jackson, of trafficking in heroin one hundred grams or more, G. L. c. 94C, § 32E (c) (3). On appeal, the defendant contends that: (1) the motion judge erred in denying his motion to suppress because the search warrant affidavit did not establish probable cause to search the defendant's home; (2) the Commonwealth committed a Brady violation by not disclosing the defendant's manner of travel to the controlled buys; (3) the motion judge erred in denying his motion to suppress statements made during the execution of the search warrant; (4) the prosecutor improperly introduced incorrect grand jury testimony about suppressed evidence; (5) a delay in correcting the grand jury transcript violated his rights to due process and effective assistance of trial counsel; and (6) the cumulative effect of these errors, combined with (7) improper vouching for the Commonwealth's witnesses by the prosecutor in closing argument, and (8) the admission of improper expert testimony requires reversal of his conviction. We affirm.

Discussion. 1. Search warrant. The defendant contends the motion judge erred in denying his motion to suppress evidence because the search warrant affidavit did not establish a nexus between illegal drug activity and his residence. “Because a determination of probable cause is a conclusion of law, we review a search warrant affidavit de novo.” Commonwealth v. Foster, 471 Mass. 236, 242 (2015). “When considering the sufficiency of a search warrant application, our review ‘begins and ends with the four corners of the affidavit.’ ” Commonwealth v. Holley, 478 Mass. 508, 521 (2017), quoting Commonwealth v. Dorelas, 473 Mass. 496, 500-501 (2016).

Detective Jonathan Lagoa of the New Bedford police department, applied for a search warrant to search 89 Washington Street, Apartment 1, New Bedford, a multi-family apartment building with gray siding and white trim. The detective's affidavit set forth the following facts. The department received a complaint that the defendant was dealing drugs from the address. NSTAR listed the defendant as the subscriber for utilities at 89 Washington Street, Apartment 1, since 2013. The Board of Probation listed the defendant's address as 89 Washington Street. The defendant had several adult arraignments, including possession offenses.

Detectives spoke with a confidential informant (CI) who, on a previous occasion, provided reliable information, which resulted in a seizure of cocaine, an arrest, and a conviction. Detective Robert met with the CI, who identified the defendant from a photograph as the person from whom the CI had purchased heroin.

Detectives conducted a controlled buy approximately two months before the execution of the search warrant.² Under the detectives’ surveillance, the CI contacted the defendant at a specific phone number and arranged a location and time to purchase heroin. Detective Lieutenant Aguiar saw the defendant leave from the front door of 89 Washington Street and “proceed to” the prearranged location. Detective Sergeant Mark Blouin then saw the CI meet with the defendant at the location and leave after a short period of time. Detective Robert and the CI met at the prearranged location. Detective Lieutenant Aguiar “maintained surveillance as Jackson arrived back at 89 Washington Street.” The substance purchased by the CI and given to the detectives tested positive for heroin.

A second controlled buy was conducted within seventy-two hours of the search warrant application and was completed in the same manner as the first. Additionally, the affiant stated the amount of heroin retrieved was consistent with the amount of money given to the CI. Again, the substance tested positive for heroin.

A search warrant issued for 89 Washington Street, Apartment 1, for all controlled substances, including heroin, materials, paraphernalia, and records. The warrant also permitted them to search the defendant.

Here, the affidavit, read as a whole and drawing all reasonable inferences from it, established probable cause to believe evidence connected to illegal drug activity would be found at the premises. See Commonwealth v. Clagon, 465 Mass. 1004, 1004, 1005-1006 (2013), quoting Commonwealth v. Escalera, 462 Mass. 636, 642 (2012) (“the affidavit and reasonable inferences drawn therefrom ‘must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises’ ”). The affidavit established the defendant's connection with the residence, and the information provided by the CI, together with his Board of Probation record and the complaint to the police, provided a reasonable basis from which the judge could infer that the defendant lived at the address and that he was dealing drugs. See Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 482 (2020). As to the nexus to the residence, the two controlled buys began and ended at the residence.

These facts provided probable cause to believe that the defendant was involved in a drug distribution operation, and used his home, at least in part, to distribute drugs. See Escalera, 462 Mass. at 643 (“Observations by police of a suspect on multiple occasions leaving his residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in his residence”).

The defendant maintains that this conclusion is incorrect for two reasons. First, relying on Clagon, supra, he maintains that two controlled buys in a drug delivery service case are insufficient to show that the search warrant application for the home was supported by probable cause. The defendant is correct that there were three controlled buys in Clagon. See id. at 1005. However, we have not adopted a bright line rule and have previously concluded that a warrant based on two controlled buys originating and/or terminating at the home satisfied the probable cause standard. See Andre-Fields, 98 Mass. App. Ct. at 481.

Second, he asserts that key facts were omitted from the affidavit, such as whether he was directly surveilled at all times, and whether he drove or walked. The defendant surmises that the warrant would not have issued if, for example, the police disclosed that the defendant drove. The defendant also surmises that these omissions were a deliberate effort at obfuscation. While we agree that it would have been better if the affidavit stated whether the defendant drove or walked, and stated explicitly whether the defendant went directly to each buy, the somewhat inartful draftsmanship of this affidavit is not fatal.

In the description of the first controlled purchase, the affidavit stated that the defendant “proceed[ed]” to the buy. The second stated that “he ma[d]e his way” to the buy. The judge construed this language to mean that the defendant proceeded directly. On de novo review, we read the affidavit in the same way. “[T]he affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis” (citation omitted). Andre-Fields, 98 Mass. App. Ct. at 481. Absent some evidence that the affidavit contains misrepresentations, we are not inclined to invalidate the warrant on this basis. See Franks v. Delaware, 438 U.S. 154, 171 (1978); Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 106-108 (2007). The defendant also notes the lack of detail in the affidavit, such as the time between the calls and prearranged meetings, the quantity of heroin sold, and the price paid by the confidential informant at each controlled buy. However, “the absence of this information is not fatal to a determination of probable cause.” Andre-Fields, supra at 486.

2. Brady violation. For the first time on appeal the defendant maintains that the Commonwealth withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963), because it failed to disclose whether the detectives saw him walk or drive to the controlled buys. The defendant sought this and other information in discovery, and the judge denied discovery regarding the CI and the manner of travel.

However, the defendant did not make a Brady claim before the motion judge. The defendant has therefore waived the argument. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 796 (2019). We review to determine whether there was a substantial risk of a miscarriage of justice. See id. The record is inadequate to permit such a determination because no evidentiary hearing on the issue was held and the Commonwealth was not put on notice that it needed to present evidence about the means of travel. Therefore, on this record, there is no substantial risk of a miscarriage of justice. See id. at 798.

3. Motion to suppress statements. The defendant next submits that the motion judge erred in denying his motion to suppress statements made during the execution of the search warrant because the statements were the fruit of a pretextual stop. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law’ ” (citation omitted). Commonwealth v. Medina, 485 Mass. 296, 299-300 (2020). “The judge determines the weight and credibility of the testimony․ [A reviewing court's] duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found” (quotation and citations omitted). Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

The judge found the following facts. The detectives waited until the defendant left the house to make the arrest. The defendant was driving on a suspended license. The detectives stopped the car for the motor vehicle violation. Detective Lorenzo Gonzalez read the defendant his Miranda rights, which the defendant acknowledged he understood. See Miranda v. Arizona, 384 U.S. 436, 478-479 (1966).³ Detectives placed the defendant in a cruiser and brought him back to 89 Washington Street, where police used his keys to enter the main entrance to the building. The apartment door was unlocked.

The detectives then executed the search warrant and, in a jacket in the bedroom, found a plastic bag containing heroin. When the defendant saw the jacket, he said, “That's all I got, what's in that jacket.” The detective asked how much heroin he had and the defendant replied, “A lot.” The detective then asked if he had a scale and the defendant said, “No. I package everything by eye,” and indicated he used his fingers to package the heroin. The defendant asked to see his mother, who was upstairs, and the police allowed him to speak with her.

We discern no error in the motion judge's ruling that the stop was lawful and the statements were admissible.⁴ Detectives stopped the defendant for a motor vehicle violation and immediately placed the defendant under arrest. Even though the police suspected the defendant was involved in illegal drug activity, the stop was a permissible exercise of their authority. See Commonwealth v. Barreto, 483 Mass. 716, 721 (2019) (“police may effect a stop after observing a motor vehicle infraction regardless of the officer's underlying motivation”). This case is therefore unlike Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 576 (2015), where the police officer who conducted the stop testified that he would not have stopped the car for any reason had he not been directed to do so by others. On that basis, we concluded the that the sole purpose of the stop was to obtain the opportunity to conduct an inventory search of the car. Unlike Ortiz, this case does not involve an inventory search. And here, the police already had a valid search warrant for the home.

Citing Commonwealth v. Charros, 443 Mass. 752, 764-765, cert. denied, 546 U.S. 870 (2005), the defendant nonetheless maintains that the stop was unlawful because a purpose of the stop was to bring the defendant back to his apartment to be present during the search, and that he was “unlawfully” driven to the target residence so that the police could talk to him. Charros held that the police did not have the authority under a search warrant to stop a car more than a mile from his residence, take the occupants into custody, and transport them back to their home for the search. But the Supreme Judicial Court affirmed the denial of the motion to suppress, among other things, inculpatory statements made by one codefendant during the search of the home, because there was probable cause to arrest him on the basis of the facts stated in the search warrant. The same is true here.⁵ There was probable cause to take the defendant into custody for the motor vehicle violation, and on the basis of the search warrant affidavit, there was also probable cause for a warrantless arrest for drug distribution. See id.

4. Grand jury testimony. At trial, the prosecutor improperly referred to grand jury testimony that marijuana and cell phones were found in the defendant's home. This testimony was improper for two reasons. The evidence was found in the car, not the home, and more importantly, it had been suppressed. The Commonwealth concedes that the grand jury testimony was erroneously admitted and the defendant's motion in limine preserved the issue. See Commonwealth v. Almele, 474 Mass. 1017, 1018 (2016).

Accordingly, we “review the error to determine whether it was harmless beyond a reasonable doubt.” Commonwealth v. Grady, 474 Mass. 715, 716 (2016). “In making this determination, we ask whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” (quotation and citation omitted). Commonwealth v. Madera, 76 Mass. App. Ct. 154, 157 (2010). “[F]actors that may be considered when making such a determination [include]: (1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions” (quotation omitted). Id., quoting Commonwealth v. Isabelle, 444 Mass. 416, 419 (2005). Given the strength of the evidence of heroin distribution, there was not a reasonable possibility that evidence of possession of marijuana or cell phones contributed to the conviction.

5. Stenographer error. The defendant claims that a delay in correcting the grand jury transcript violated his rights to due process and effective assistance of trial counsel. In an affidavit addressing the transcription error, the stenographer who transcribed the grand jury testimony indicated that she mistakenly wrote that Detective Lagoa stated “800 grams” when the detective stated “108 grams.” This error was not corrected until after trial.

At trial, the defendant used the internally contradictory (and incorrect) testimony regarding varying amounts of heroin to weaken the credibility of the witnesses and argue for acquittal. The Commonwealth conceded that the amount seized was 108 grams. Thus, the transcriber's error provided a basis for weakening the prosecution's case, but did not prejudice the defendant. The correct testimony still provided a basis for a trafficking conviction. The defendant's guilt was fairly adjudicated.

6. Cumulative effect. The defendant asserts that the cumulative effect of these errors, together with improper vouching by the prosecutor in closing argument, and improper expert testimony, requires reversal of his conviction. In the absence of error, there is no cumulative effect. We address the defendant's other points briefly.

i. Improper vouching. For the first time on appeal and without reference to specific statements, the defendant claims that “the prosecutor's closing argument amounted to improper vouching [when] she stated[,] ‘I think,’ ‘I believe[,]’ and[,] ‘I don't believe[,]’ ” multiple times, “improper[ly] vouching for the credibility of police witnesses.” In the absence of objection, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 776 (2001).

“Remarks made during closing argument are viewed in the context of the entire argument, and in light of the judge's instruction to the jury and the evidence at trial.” Id. Upon review of the prosecutor's argument and judge's instruction, no improper vouching occurred. The prosecutor did not express personal belief in the credibility of the witnesses or indicate personal knowledge supporting the witnesses’ credibility. See Commonwealth v. Kee, 449 Mass. 550, 560 (2007).

ii. Expert testimony. The defendant claims “the Commonwealth elicited improper expert testimony on the ultimate issue that the drugs were for distribution both (1) at the grand jury and again (2) at trial, because the testimony from the experts lacked the accepted ‘consistent with’ language.” We review the admission of expert testimony for abuse of discretion or error of law. See Commonwealth v. Wilson, 441 Mass. 390, 401 (2004).

In response to the trial prosecutor's question whether the evidence was indicative of personal use or distribution, the expert witness testified: “In my opinion, these drugs were possessed for distribution.” While it is true that “[w]hether a certain quantity of drugs is consistent with personal use or with distribution is a matter not within the common experience of jurors,” Wilson, supra, and may be the proper testimony for an expert witness, the expert's testimony was improper because it determined the ultimate issue that the jury was to decide. See Commonwealth v. Lopez, 55 Mass. App. Ct. 741, 746 (2002). We conclude, however, that the error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Canty, 466 Mass. 535, 544-545 (2013); Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 573-574, 577 (2009). Given the strength of the Commonwealth's case, the admission of the testimony was not substantially prejudicial.

For these reasons, the judgment is affirmed.

So ordered.

Affirmed

FOOTNOTES

2.   As is customary, the CI was searched for money and contraband. Finding none, the detectives provided the CI with money to purchase heroin. Detective Robert watched the CI, who did not meet with anyone before or after the controlled drug purchase.

3.   Two cell phones, a bag of marijuana, and keys were seized from the car. This evidence was later suppressed.

4.   The motion judge found that “the stop and arrest [were] lawful because the police had probable cause to believe that the defendant was operating the motor vehicle without a valid driver's license.” The judge also found that “no basis has been shown for the suppression of the defendant's statements to police after he was brought back to the apartment for the search. The defendant had been lawfully arrested and was lawfully in custody. Further, the police properly advised him of his Miranda rights and he stated that he understood his rights. In addition, the defendant's initial statement -- ‘That's all I got, what's in that jacket’ -- was not the product of interrogation.”

5.   In Charros, the defendant, like the defendant here, made incriminating statements during the search. The Supreme Judicial Court affirmed without further discussion regarding the propriety of taking the defendant to the home. The defendant here has not cited authority for the proposition that a person under arrest may not be transported to the site of the execution of a search warrant. See id. at 760-761, quoting Michigan v. Summers, 452 U.S. 692, 703 (1981) (discussing reason why law enforcement may wish to have occupants of home present during search, including “the orderly completion of the search”). In this case, the police officers delayed execution of the warrant until the defendant arrived. The police were able to use the defendant's keys to enter the building, as opposed to using tools to breach the entrance. Additionally, because the pretext argument was not made to the motion judge, the Commonwealth was not on notice that it needed to make an evidentiary record regarding the reasons for transporting him to the home, and the judge did not make any findings. That much of the defendant's argument is waived, and in view of the judge's ruling, unchallenged on appeal, that the statements were made voluntarily and after receipt of Miranda warnings, we discern no substantial risk of a miscarriage of justice. See Santos, 95 Mass. App. Ct. at 796.