Commonwealth v. Faurry Villatoro, April 23, 2010
76 Mass. App. Ct. 645
Threshold Police Inquiry; Probable Cause; Perjury; Evidence
The defendant was convicted of several drug-related offenses. He appealing arguing that the trial judge erred in (1) denying his motion to suppress evidence resulting from multiple illegal searches; (2) convicting him based on allegedly perjured testimony; (3) failing to reconsider the denial of his counsel’s motion to withdraw; (4) failing to prove the second and subsequent offense charge beyond a reasonable doubt; (5) admitting drug certificates absent testimony of a drug analyst. The appeals court affirmed the judgments.
Two patrol officers activated cruiser lights and pulled behind a stopped vehicle that was obstructing traffic. While speaking to the defendant, one officer noticed a smell that he recognized as marijuana because of his DEA training and previous marijuana-related arrests and seizures. The officer ordered the defendant to exit the vehicle. The officer noticed the corner of a plastic bag protruding from the defendant’s waistband. The officer pat frisked the defendant and recovered a bag which appeared to contain marijuana. The officers placed the defendant under arrest and conducted a search of the car, revealing two additional bags of marijuana.
Search; Patfrisk; Evidence; Probable Cause
The court considered the defendant’s first argument regarding the potential illegality of the searches, and analyzed the legality of each step of the searches. The observation of the traffic violation provided justification for a motor vehicle stop. The officer’s detection of a marijuana odor emanating from the car supplied probable cause to believe there were drugs in the car. The officer’s exit order and patfrisk of the defendant’s person were justified as a search incident to a lawful arrest. The marijuana obtained from the patfrisk in turn justified a search of the vehicle; therefore, the last two bags found in the car were also lawfully seized.
Perjury
The court then considered the defendant’s claim that his convictions must be vacated where inconsistencies between one of the officer’s testimony at trial and at the suppression hearing lead to the conclusion that the jury relied on perjured testimony. The court reviewed for a substantial risk of a miscarriage of justice because the defendant raised this argument for the first time on appeal. The court found no special duty on the prosecutor to disavow the officer’s testimony. The court held that the inconsistencies in the officer’s testimonies were not substantial. The thrust of the testimonies regarding the stop and seizure were consistent. The inconsistent aspects of the testimony did not relate to material evidence and did not suggest perjury.
Counsel’s Motion to Withdraw
The defendant argued that the trial judge’s refusal to reconsider the denial of trial counsel’s motion, made on the trial date, to withdraw, was an abuse of discretion. A trial judge has broad discretionary power over requests for last minute shifts in representation which threaten to delay proceedings. Commonwealth v. Johnson, 424 Mass. 338, 341 (1997). Because there was no indication the defendant’s counsel was unable or unwilling to effectively represent defendant’s interests, the court held that the trial judge acted within his discretion in refusing to reconsider the motion.
Second and Subsequent Offense
A requisite element of conviction under G. L. c. 94c, § 32(b), is proof beyond a reasonable doubt of one or more prior convictions. Commonwealth v. Savageau, 42 Mass. App. Ct. 518, 520 (1997). At trial, the Commonwealth called an officer who testified to arresting the defendant previously, and through whom a certified criminal docket of the first offense was presented. The court held this was sufficient evidence from which the jury could find that the defendant had previously been convicted of violating drug laws.
Right to Confrontation; Drug Certificates
Defendant asserted that the drug certificates introduced by the Commonwealth violated his rights under the 6th Amendment in the absence of the analyst who performed the tests evidenced by the certificates. The court found error. In the absence of an objection in the trial court, the appeals court would normally apply a substantial risk of a miscarriage of justice test to the objectionable evidence. Defendant argued for a stringent standard of review because of Commonwealth v. Verde, 444 Mass. 279 (2005). The court concluded the error was harmless under either standard and affirmed the convictions.
“Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence.” Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). Both the defendant and the arresting officer testified to the presence of marijuana. Because the defendant’s defense to the charge of intent to distribute was that he was just a consumer, the defendant testified to his own expertise on the subject of marijuana and expounded on his long history of marijuana use and why he had smoking implements and baggies on his person. The introduction of the certificates was harmless beyond a reasonable doubt in light of the defendant and arresting officer’s testimonies. Under the test enunciated in Chapman v. California, 386 U.S. 18, 24 (1967), there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.”
Accordingly, the judgments were affirmed.
76 Mass. App. Ct. 645
Threshold Police Inquiry; Probable Cause; Perjury; Evidence
The defendant was convicted of several drug-related offenses. He appealing arguing that the trial judge erred in (1) denying his motion to suppress evidence resulting from multiple illegal searches; (2) convicting him based on allegedly perjured testimony; (3) failing to reconsider the denial of his counsel’s motion to withdraw; (4) failing to prove the second and subsequent offense charge beyond a reasonable doubt; (5) admitting drug certificates absent testimony of a drug analyst. The appeals court affirmed the judgments.
Two patrol officers activated cruiser lights and pulled behind a stopped vehicle that was obstructing traffic. While speaking to the defendant, one officer noticed a smell that he recognized as marijuana because of his DEA training and previous marijuana-related arrests and seizures. The officer ordered the defendant to exit the vehicle. The officer noticed the corner of a plastic bag protruding from the defendant’s waistband. The officer pat frisked the defendant and recovered a bag which appeared to contain marijuana. The officers placed the defendant under arrest and conducted a search of the car, revealing two additional bags of marijuana.
Search; Patfrisk; Evidence; Probable Cause
The court considered the defendant’s first argument regarding the potential illegality of the searches, and analyzed the legality of each step of the searches. The observation of the traffic violation provided justification for a motor vehicle stop. The officer’s detection of a marijuana odor emanating from the car supplied probable cause to believe there were drugs in the car. The officer’s exit order and patfrisk of the defendant’s person were justified as a search incident to a lawful arrest. The marijuana obtained from the patfrisk in turn justified a search of the vehicle; therefore, the last two bags found in the car were also lawfully seized.
Perjury
The court then considered the defendant’s claim that his convictions must be vacated where inconsistencies between one of the officer’s testimony at trial and at the suppression hearing lead to the conclusion that the jury relied on perjured testimony. The court reviewed for a substantial risk of a miscarriage of justice because the defendant raised this argument for the first time on appeal. The court found no special duty on the prosecutor to disavow the officer’s testimony. The court held that the inconsistencies in the officer’s testimonies were not substantial. The thrust of the testimonies regarding the stop and seizure were consistent. The inconsistent aspects of the testimony did not relate to material evidence and did not suggest perjury.
Counsel’s Motion to Withdraw
The defendant argued that the trial judge’s refusal to reconsider the denial of trial counsel’s motion, made on the trial date, to withdraw, was an abuse of discretion. A trial judge has broad discretionary power over requests for last minute shifts in representation which threaten to delay proceedings. Commonwealth v. Johnson, 424 Mass. 338, 341 (1997). Because there was no indication the defendant’s counsel was unable or unwilling to effectively represent defendant’s interests, the court held that the trial judge acted within his discretion in refusing to reconsider the motion.
Second and Subsequent Offense
A requisite element of conviction under G. L. c. 94c, § 32(b), is proof beyond a reasonable doubt of one or more prior convictions. Commonwealth v. Savageau, 42 Mass. App. Ct. 518, 520 (1997). At trial, the Commonwealth called an officer who testified to arresting the defendant previously, and through whom a certified criminal docket of the first offense was presented. The court held this was sufficient evidence from which the jury could find that the defendant had previously been convicted of violating drug laws.
Right to Confrontation; Drug Certificates
Defendant asserted that the drug certificates introduced by the Commonwealth violated his rights under the 6th Amendment in the absence of the analyst who performed the tests evidenced by the certificates. The court found error. In the absence of an objection in the trial court, the appeals court would normally apply a substantial risk of a miscarriage of justice test to the objectionable evidence. Defendant argued for a stringent standard of review because of Commonwealth v. Verde, 444 Mass. 279 (2005). The court concluded the error was harmless under either standard and affirmed the convictions.
“Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence.” Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). Both the defendant and the arresting officer testified to the presence of marijuana. Because the defendant’s defense to the charge of intent to distribute was that he was just a consumer, the defendant testified to his own expertise on the subject of marijuana and expounded on his long history of marijuana use and why he had smoking implements and baggies on his person. The introduction of the certificates was harmless beyond a reasonable doubt in light of the defendant and arresting officer’s testimonies. Under the test enunciated in Chapman v. California, 386 U.S. 18, 24 (1967), there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.”
Accordingly, the judgments were affirmed.
