Com. v. Rodriguez

913 N.E.2d 880

75 Mass. App. Ct. 235

COMMONWEALTH v. Vinicio RODRIGUEZ.

No. 08-P-1177.

Appeals Court of Massachusetts, Plymouth.

Argued April 8, 2009.

Decided September 25, 2009.

William S. Smith, Northboro, for the defendant.

Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, GREEN, & GRAHAM, JJ.

KAFKER, J.

Following a bench trial, the defendant, Vinicio Rodriguez, was found guilty of trafficking in cocaine in an amount more than 100 grams, but less than 200 grams; possession of cocaine with intent to distribute; possession of cocaine with intent to distribute in a school zone; and possession of marijuana. He now challenges his convictions on several grounds, including the admission in evidence of drug certificates of analysis without testimony from an analyst, which was declared unconstitutional by the Supreme Court of the United States in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

In March, 2004, the Brockton police department was investigating a suspected cocaine delivery service operating out of the defendant's residence located at 103 Vesey Street in Brockton. On April 9, 2004, while waiting to execute a search warrant for 103 Vesey Street, police officers observed the defendant drive up to the house, briefly go inside, and then drive toward Main Street. The defendant drove to 1380 Main Street where State troopers, who had been informed of his likely destination, were waiting inside. The troopers arrested the defendant in the lobby after he attempted to swallow five bags of suspected cocaine. The defendant was transported back to 103 Vesey Street, as Brockton police officers executed the search warrant there. That search turned up additional suspected narcotics and drug paraphernalia. Additional facts will be set forth as necessary to address the particular legal issues raised.

On appeal, the defendant challenges the denial of his motions to dismiss the school zone charge for insufficient evidence presented to the grand jury, to suppress statements made to a police officer at 103 Vesey Street, and to suppress evidence seized at 1380 Main Street. The defendant also contends that the trial judge erred by admitting certificates of drug analysis in evidence and allowing the Commonwealth to elicit testimony on the school zone measurement for the first time on redirect examination. For the reasons stated infra, we reverse the defendant's conviction of trafficking in cocaine and possession of marijuana and affirm his remaining convictions.

1. Grand jury evidence. The defendant first challenges the denial of his motion to dismiss the school zone charge on the basis that there was insufficient evidence presented to the grand jury to prove that his possession of cocaine with intent to distribute occurred within 1,000 feet of a school.

A detective testified before the grand jury that the defendant was followed back to 1380 Main Street. Without mentioning the address again, the detective described the stop and the arrest that occurred there. The following exchange then took place between the prosecutor and the detective:

Q: "The location of 1381 Main Street, where is that in relation to the Brockton Christian School which is a school in the city of Brockton?"

A: "It's directly across the street, within 500 feet of it."

Q: "In fact, it was measured to be 361 feet; is that right?"

A: "Yes."

No testimony was expressly provided regarding the distance between 1380 Main Street and the school or the configuration of the neighborhood. Rather, the Commonwealth argues that the prosecutor misspoke, or the grand jury transcript contained a typographical error. Accordingly, the Commonwealth contends that the references to 1381 Main Street in the exchange between the prosecutor and the detective should be understood to refer to 1380 Main Street. This appears to be so. There was no reason to discuss the distance between 1381 Main Street and the school.¹

Although the Commonwealth's evidence was limited, so was its burden of proof at the grand jury stage. "The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense." Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993). This evidence is "viewed in the light most favorable to the Commonwealth." Commonwealth v. Levesque, 436 Mass. 443, 444, 766 N.E.2d 50 (2002). Also, "an indictment is not to be dismissed merely because `the evidence probably would not have been sufficient to overcome a motion for a required finding of not guilty at a trial.'" Commonwealth v. Club Caravan, Inc., 30 Mass.App.Ct. 561, 567, 571 N.E.2d 405 (1991), quoting from Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984).

In these circumstances, we conclude that the evidence was sufficient for the purposes of grand jury proceedings. Even if this was not just a transcription error, it was reasonable for the grand jury to infer that the detective was referring to 1380 Main Street, not 1381 Main Street, when he answered the prosecutor's question.² See Corson v. Commonwealth, 428 Mass. 193, 197, 699 N.E.2d 814 (1998) ("inferences need not be necessary, only reasonable and possible"). See also Commonwealth v. Leitzsey, 421 Mass. 694, 698, 659 N.E.2d 1168 (1996) (sufficient evidence to indict even though grand jury transcripts reflected inaccurate testimony, possibly due to stenographic error).

2. Statements at 103 Vesey Street. The defendant claims that statements he made to a detective while in custody at 103 Vesey Street should have been suppressed because they were the result of an interrogation or the functional equivalent thereof. In reviewing a motion to suppress, the judge's findings of fact are "binding in the absence of clear error." Commonwealth v. Alvarado, 420 Mass 542, 544, 651 N.E.2d 824 (1995). However, we "independently review[] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Gentile, 437 Mass. 569, 573, 773 N.E.2d 428 (2002), quoting from Commonwealth v. Eckert, 431 Mass. 591, 593, 728 N.E.2d 312 (2000).

We summarize the facts found by the suppression motion judge. Detective DiLiddo lived across the street from 103 Vesey Street in 2004 and had spoken to the defendant and Angie, the mother of the defendant's children, while they were neighbors. After the defendant was arrested, Angie told Detective DiLiddo that she was worried about not having enough money. Detective DiLiddo then approached the defendant, who was handcuffed and in custody at 103 Vesey Street, and, without advising him of his Miranda rights, asked if he had any extra money for his children. In response, the defendant "apologized to Detective DiLiddo for conducting business across the street from him and said he meant no disrespect"; he gave the detective approximately one hundred dollars, which the detective then gave to Angie.

Miranda warnings are necessary when a suspect is subject to express custodial interrogation or its functional equivalent. Commonwealth v. Torres, 424 Mass. 792, 796-797, 678 N.E.2d 847 (1997). Commonwealth v. Braley, 449 Mass. 316, 323-324, 867 N.E.2d 743 (2007). A functional equivalent to interrogation encompasses "any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Commonwealth v. Torres, supra at 797, 678 N.E.2d 847, quoting from Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The inquiry does not center on the subjective intent of the particular police officer but rather focuses on an objective assessment whether a reasonable person in the suspect's position would perceive the police statements and conduct as interrogation. Commonwealth v. Torres, supra at 797, 678 N.E.2d 847. Commonwealth v. Braley, supra at 324, 867 N.E.2d 743.

A reasonable person would not perceive Detective DiLiddo's question as designed to elicit an incriminating response. The detective, after speaking with Angie, only asked the defendant, who was already in police custody, if he had any money for his children. The defendant's unresponsive, incriminating apology was spontaneous, and thus a Miranda warning was not required for the statement to be admissible.³ Id. at 325, 867 N.E.2d 743. The denial of the defendant's motion to suppress the statements was therefore proper.

3. Evidence seized at 1380 Main Street. The defendant next argues that evidence seized from him at 1380 Main Street should have been suppressed because the State troopers lacked reasonable suspicion to stop him and probable cause to arrest him.

Reasonable suspicion to stop must be "based on specific, articulable facts and reasonable inferences, that the defendant had committed, was committing, or was about to commit a crime." Commonwealth v. Deramo, 436 Mass. 40, 42, 762 N.E.2d 815 (2002), quoting from Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993). The troopers knew that the defendant was the subject of a narcotics investigation and was identified in the affidavit in support of the search warrant. Because they had more than enough information to establish reasonable suspicion, the troopers had the right to stop and speak with the defendant. See Commonwealth v. Charros, 443 Mass. 752, 764-765, 824 N.E.2d 809, cert. denied, 546 U.S. 870, 126 S.Ct. 374, 163 L.Ed.2d 162 (2005).

To establish probable cause to arrest, the police officer must be aware of facts and circumstances that "warrant a person of reasonable caution in believing that the defendant had committed or was committing a crime." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997) (citation and quotation marks omitted). As the troopers approached him, they observed the defendant attempting to swallow something....