COMMONWEALTH v. CRISTIAN HERNANDEZ ALMANZAR (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of fourteen counts of distribution of fentanyl and two counts of trafficking in fentanyl. He has appealed from the denial of his motion to suppress items seized from his residence, challenges the sufficiency of the evidence of aiding and abetting, and asserts it was error for the trial judge to allow the Commonwealth to recall a State police trooper after he had already concluded his testimony but before the Commonwealth rested its case. We affirm.

1. Motion to suppress. The defendant challenges the legality of a search conducted pursuant to a search warrant, so our inquiry “begins and ends with the four corners of the [warrant] affidavit” (quotation and citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). “The question is whether the warrant affidavit contained sufficient information to establish probable cause to search the defendant's home ․ as required by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.” Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 508-509 (2019).

To provide probable cause to support the issuance of a search warrant, the “information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there” (citation omitted). Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 521 (2006). In determining whether probable cause exists, we review the affidavit de novo. See Murphy, supra at 509.

Here, the affidavit contained sufficient information to provide probable cause for the search of the defendant's residence. It described the affiant's specialized knowledge of drug distribution operations, including his familiarity with their record keeping logistics and practices. It identified a telephone number used to initiate drug sales and detailed how the investigators were able to match the movements of a cell phone to which that number was assigned with the movements of the defendant. The affiant also described the multilevel structure of a typical drug distribution network, including the storage of drugs in “safe” or “stash” houses owned or controlled under different names, and the use of “runners” or “couriers” to make the pick-ups and deliveries of the drugs and drug money. The affidavit also described surveillance on two dates that established that the defendant's cell phone, and inferentially, the defendant, were at the residence when an undercover officer called that cell phone and arranged to buy fentanyl from the defendant's drug courier. The requested warrant sought drug paraphernalia, records relating to the distribution of controlled substances, cash or currency derived from the distribution of narcotics, and documents or tangible evidence reflecting dominion or control over the residence by the defendant.

Accordingly, we conclude that the detailed and thorough affidavit established probable cause to search the defendant's residence for proceeds and records of a drug operation. See Commonwealth v. Lima, 80 Mass. App. Ct. 114, 118-122 (2011). See also Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 107-108 (2007) (inference that defendant kept records at residence established by evidence that defendant received phone calls to arrange drug sales while he was at the residence). Cf. Commonwealth v. Escalera, 79 Mass. App. Ct. 262, 266-268 (2011), S.C. 462 Mass. 636 (2012).

2. Sufficiency of the evidence. We review the denial of the defendant's motion for a required finding of not guilty under the familiar Latimore standard. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We consider the evidence introduced at trial, along with reasonable inferences therefrom, 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, id. at 677-678, bearing in mind that guilt may be established by circumstantial evidence “and that the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable,’ ” Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007).

With respect to the fourteen drug distribution offenses, the defendant asserts that there was insufficient evidence that he (1) had access to the house where the drugs were found and (2) had ever engaged in a drug sale. We are unpersuaded. To prove distribution, the Commonwealth had to establish beyond a reasonable doubt that the defendant knowingly or intentionally distributed a perceptible amount of fentanyl. See Commonwealth v. Richardson, 479 Mass. 344, 353 (2018). To convict the defendant as an aider and abettor, the Commonwealth was required to prove “beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime.” Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). It was not necessary to prove that the defendant actually touched, handled, or distributed the drugs himself in order for him to be convicted. See Commonwealth v. Hernandez, 439 Mass. 688, 695 (2003).

The jury heard ample evidence from which they could reasonably have concluded that the defendant coordinated a series of drug sales to undercover officers. The officers arranged each sale with the same person via the same telephone number. The total weight of the fentanyl seized during the final controlled buy was 14.81 grams. Surveillance throughout the investigation linked the courier to a house where at least 27.17 grams of fentanyl was recovered and the courier's landlord linked her to the bedroom where the drugs were found. The jury heard that the defendant and the courier were seen together multiple times over several months both at the house where the narcotics were found and at the defendant's residence where the records and proceeds of the drug operation were found. And, upon execution of the search warrant at the defendant's residence, the defendant was found alone and in possession of the cell phone used to arrange each of the drug sales from the courier to the undercover officers.

We are also unpersuaded by the defendant's sufficiency argument with respect to indictment sixteen. Relying principally on Commonwealth v. Hernandez, 439 Mass. 688, 691 (2003), the defendant maintains that his conviction must be reversed because the Commonwealth did not prove that he possessed the narcotics, either actually or constructively. But the jury were instructed on aiding and abetting, meaning the defendant need not have actually or constructively possessed the drugs to have been found guilty of trafficking. See id. at 694. “[P]rincipal liability is not a separate ‘theory’ distinct from [aiding and abetting],” and “a jury need not make separate findings regarding principal liability and [aiding and abetting] liability by using a special verdict slip.” Zanetti, 454 Mass. at 464, citing Commonwealth v. Santos, 440 Mass. 281, 290 (2003).

Instead, the Commonwealth had to prove that the defendant “knowingly participated in the [drug trafficking], with the intent required to commit the crime.” See Zanetti, 454 Mass. at 467. “Where it is a stash of [narcotics] that forms the basis for a charge of trafficking, a defendant can ․ share an intent to traffic if he knows the stash exists.” Hernandez, 439 Mass. at 694. The defendant did not need to know the amount or type of substance in the stash to be found guilty “as long as he [knew] it [was] a controlled substance.” Id.

Viewed in the light most favorable to the Commonwealth, the evidence permitted the jury to find that the defendant participated in trafficking fentanyl with the requisite intent. The “evidence was plentiful that the defendant regularly and repeatedly assisted [the courier] in the distribution of the stash, and that the defendant would necessarily understand that [the concealed inventory] was of a quantity sufficient to support the volume of traffic in which he [was] involved” (quotation and citation omitted). See Hernandez, 439 Mass. at 695-696. We are satisfied that the evidence was sufficient to meet the Commonwealth's burden. See Commonwealth v. Bongarzone, 390 Mass. 326, 349-350 (1983) (sufficient to show that defendant knew of criminal enterprise, actively participated in it, and took action in furtherance of it); Commonwealth v. Rivera, 40 Mass. App. Ct. 308, 312 (1996) (evidence that defendant coordinated sale of stash of narcotics sufficient to prove trafficking through aiding and abetting). For these same reasons, we are not persuaded by the defendant's similar argument with respect to the drug distribution charges in indictments one through fourteen.

3. Trooper testimony. The defendant maintains that the trial judge abused his discretion by permitting the Commonwealth, before it rested, to recall one of the troopers involved in the investigation to testify that he arrived at the defendant's residence to set up surveillance over an hour before the execution of the search warrant. We disagree.

Whether a witness may be recalled in a criminal case is left to the sound discretion of the trial judge. See Commonwealth v. Forte, 469 Mass. 469, 488 (2014). Because the defendant objected, “we review to determine whether there was error and, if so, whether there is a reasonable possibility that the error might have contributed to the jury's verdict, or whether we can be assured that the evidence did not influence the jury or had but very slight effect” (quotation and citation omitted). Commonwealth v. Wardsworth, 482 Mass. 454, 458 (2021).

The defendant objected when the trooper started to testify about his arrival time on the day of arrest, noting that defense counsel “had no discovery” about this issue. After discussion, the trial judge concluded that the objection went to the “fairness [of] the recall” and overruled it. The defendant cross-examined the trooper about this omission. We discern no abuse of discretion. See Commonwealth v. Burke, 20 Mass. App. Ct. 489, 512 (1985).

The defendant also asserts that the trial judge abused his discretion by allowing that trooper to testify to an improper out-of-court identification of which the defendant did not have adequate notice. Again we review for prejudicial error, see Wardsworth, 482 Mass. at 458, and again we discern none. The trooper testified, consistent with the report counsel conceded he received in discovery, that the trooper had seen a photograph of a target of the investigation, and that, on the day of the arrest, the trooper recognized the defendant as that person based on that photograph. The judge did not err in concluding there was no impermissible out-of-court identification. Cf. Commonwealth v. Matos, 95 Mass. App. Ct. 343, 346-347 (2019).

Judgments affirmed.