Com. v. Rodriguez

855 N.E.2d 1113

67 Mass. App. Ct. 636

COMMONWEALTH¹ v. Joel RODRIGUEZ.

No. 05-P-680.

Appeals Court of Massachusetts, Hampden.

Argued May 4, 2006.

Decided October 30, 2006.

Beth L. Eisenberg, Committee for Public Counsel Services, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, GREEN, & KATZMANN, JJ.

ARMSTRONG, J.

A jury convicted the defendant of trafficking in cocaine in excess of 200 grams. G.L. c. 94C, § 32E(b )(4). The case involved the delivery of a package from Barranquilla, Colombia, that contained cocaine carefully concealed inside a bicycle frame. On appeal the defendant argues that (1) it was error to admit in evidence a conversation gathered through warrantless electronic surveillance; (2) the judge improperly denied his motion to suppress a statement that he made to the police after his arrest; and (3) his motion for a required finding of not guilty should have been granted as to the second theory of trafficking submitted to the jury, and because it was impossible to determine on which theory the jury's verdict was based, his conviction must be reversed.

Background. On January 28, 2003, an official from the United States Customs Service notified Massachusetts State police Sergeant John Michel, a member of the Hampden County narcotics task force, that they had intercepted a package containing illegal narcotics. The way-bill indicated that it was sent from Barranquilla, Colombia. The box contained a bicycle frame within which cocaine was secreted and was addressed to Pedro Tirado, 5 Ardmore Street, Springfield. Sergeant Michel obtained an anticipatory search warrant for 5 Ardmore Street, and the task force executed a plan to tender delivery of the package to Tirado on January 29.

On that date, Trooper Michael Joselyn posed as a delivery person from DHL delivery service and arrived at 5 Ardmore Street at about 11:30 A.M. He knocked on the front door with the package in hand and was greeted by a woman who called to Tirado. Trooper Joselyn informed Tirado that he had a package for him. Tirado signed for the package after confirming that it was addressed to him. About fifteen minutes later the police executed the search warrant. Officers used a battering ram to enter the apartment after receiving no response at the front door and found Tirado sleeping in a bedroom with his wife. Tirado was handcuffed, was given Miranda warnings, and was told that he was in trouble. He volunteered to cooperate.

Tirado denied that the package belonged to him and gave police the following account of how he had come to possess it. About a week to a week and one-half earlier, Tirado explained, the defendant offered to pay him $400 if he would accept delivery of a package. Tirado said the defendant was an acquaintance he had met through a mutual friend only a couple of months earlier. Tirado was unemployed, drug-addicted, and dependent upon Social Security benefits. He accepted the defendant's proposal because it included an offer of cash. The defendant explained how and when the package would arrive, but did not disclose the nature of its contents. The defendant instructed Tirado to dial his cellular telephone number after he received it and told him he would be paid when "everything was all right."

When Tirado concluded his story, the police had him place a telephone call to the defendant. Officer Aurelio Garcia stood nearby and could hear the defendant talking to Tirado.² The defendant told Tirado that he would pick up the package. Tirado gave the defendant directions to 5 Ardmore Street because the defendant had never previously visited the address.

While awaiting the defendant's arrival, Officer Garcia placed an electronic monitoring device inside Tirado's shirt pocket. An accompanying device was put inside Trooper Juan Colon's vehicle, parked outside the apartment, to enable the monitoring and recording of Tirado's communications. Trooper Colon later discovered that the volume control on the recording device had been set too low to produce an audible recording, but he was able to hear the defendant's conversation with Tirado as it unfolded through the speaker.

The defendant took a taxicab to 5 Ardmore Street. The taxicab parked in front of the address and the taxicab's trunk popped open. The defendant got out of the vehicle and met Tirado at the front door. The two men entered the apartment and walked to where the package was located. The defendant "grabbed" the package and paid Tirado $200, telling him that he would pay the remaining $200 balance later. Tirado testified that he asked the defendant to open the package, but the defendant said that he did not have enough time. As the defendant started to leave the apartment with the package, he got a phone call and asked Tirado to carry the package outside. Tirado declined, telling the defendant, "[I]t's your package." The defendant ended the phone call and continued out the door. He had spent no more than ten minutes in the apartment.

The defendant reached the trunk of the taxicab and was placing the package inside when four officers appeared, yelling "police" in both English and Spanish. The defendant looked at the officers before fleeing on foot, but he was quickly brought to the ground and, after a brief struggle, handcuffed. A search of the defendant revealed three small bags of marijuana, a cellular telephone, and just over $1,000 in cash. Officer Garcia then read the defendant Miranda warnings before transferring him to the Springfield police station.

Inspection of the package revealed a bicycle frame, which when pried open was found to contain almost 900 grams of seventy-one percent pure cocaine.

a. Admission of evidence gathered through warrantless electronic surveillance. At trial, the defendant testified and denied any prior arrangement with Tirado involving the delivery of the package. The defendant claimed that he first learned of the package on the morning of his arrest, when Tirado called to ask for a favor. According to the defendant, Tirado asked him to pick up the package because he could not keep it at his home due to a problem with his wife. As for the $200 that was exchanged, the defendant testified that Tirado asked to borrow the money and that he reluctantly agreed only when Tirado promised to pay him back.

In rebuttal, the Commonwealth called Trooper Colon, who had used the electronic device to monitor the conversation inside 5 Ardmore Street. Trooper Colon, working from memory, testified that he heard Tirado ask the defendant, "How much are you going to pay me?" and the defendant responded, "Four hundred." Next, Colon heard "money being counted out." Colon testified that he did not hear Tirado ask for a loan, nor did he hear Tirado promise to repay the defendant.

1. Article 14 claim. The defendant argues on appeal that admission in evidence of Colon's recollection of the electronically intercepted conversation violated the defendant's rights under art. 14 of the Massachusetts Declaration of Rights.³ According to the defendant, the police should have obtained a warrant before intercepting the conversation that took place in the apartment in which Tirado was staying.

Contrary to the defendant's contention on appeal, this issue was not preserved below. As the Commonwealth correctly points out, the defendant only posited a general objection to such testimony during a bench conference that focused on scheduling concerns rather than resolution of any substantive issue. Immediately after the Commonwealth rested, the judge asked defense counsel whether he had any additional evidence and how much time he would need. When counsel told the judge that he intended to call the defendant, the prosecutor alerted the judge to the possibility that he would call three rebuttal witnesses. The witnesses would testify to three conversations, respectively, including a conversation the defendant had in jail, a conversation the defendant had on the telephone with Tirado, and the conversation in Tirado's apartment that Colon monitored with electronic surveillance equipment. The judge explicitly stated that she was not prepared to rule on the admissibility of such conversations during the bench conference, and defense counsel responded that he would raise his objections "with the court later."

When the testimony was presented at trial, the defendant objected once, when the prosecutor posed a question that purportedly asked the witness to speculate. No other objection was forthcoming, nor did the defendant present his claim in a motion to suppress.⁴ Therefore, error, if any, in the admission of the evidence may only be reviewed to determine if it created a substantial risk of a miscarriage of justice. See Commonwealth v. Zinser, 446 Mass. 807, 808, 847 N.E.2d 1095 (2006) ("All claims, waived or not, must be considered"); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 18-19, 490 N.E.2d 1195 & n. 20 (1986) (unobjected-to constitutional error subject to substantial risk standard of review).

To challenge the propriety of the warrantless seizure of evidence under art. 14, the defendant bears the burden of showing that he "had a subjective expectation of privacy in the object of the challenged search that society is willing to recognize as reasonable." Commonwealth v. Eason, 427 Mass. 595, 599, 694 N.E.2d 1264 (1998). See Commonwealth v. Pina, 406 Mass. 540, 544-545, 549 N.E.2d 106 (1990); Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). If we concede for present purposes that the defendant may have had a subjective expectation of privacy in his conversation with Tirado while he was in the apartment, the remaining question is whether society is prepared to accept that expectation as reasonable.

The defendant argues that because the conversation at issue took place in a private home, the expectation of privacy was a reasonable one, and therefore a warrant was required under ...