Commonwealth v. Gonzalez

93 Mass.App.Ct. 6

96 N.E.3d 719

COMMONWEALTH

v.Radhames GONZALEZ.

No. 16–P–1035

Appeals Court of Massachusetts, Middlesex..

Argued September 12, 2017.

Decided March 12, 2018.

Steven J. Rappaport, Boston, for the defendant.

Clarence H. Brown, Assistant District Attorney, for the Commonwealth.

Present: Rubin, Neyman, & Henry, JJ.

HENRY, J.

After a jury trial in Superior Court, the defendant, Radhames Gonzalez, was convicted of possession of cocaine with intent to distribute, carrying a firearm without a license, possession of ammunition without a firearm identification card, possession of a large capacity feeding device, and possession of a large capacity weapon during the commission of a felony.¹ The defendant argues that (1) his motion to suppress should have been allowed because the information supplied by a confidential informant (CI) did not justify the investigatory stop of his motor vehicle; and (2) the admission in evidence of a substitute chemist's testimony deprived the defendant of his right to "confront" the witness. We affirm.

Background. We set forth the facts as found by the motion judge, supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5, 723 N.E.2d 501 (2000).

Sergeant William West of the Billerica police department testified that he had been a patrol sergeant for two years, and that he had formerly been a detective in the criminal bureau for sixteen years. As a detective, he had investigated all types of crimes including narcotics offenses and had worked with informants "no less than a hundred times." In June, 2013, about one year after he had become a sergeant, West was contacted by a CI with whom West had worked on more than one occasion when he was a detective.

On this occasion, the CI provided a description of a man who went by the name of "Eddie," later identified as the defendant, who was dealing heroin and cocaine in and around the Gaelic Club (club) in Lowell. The CI described the defendant as a Dominican male who drove a white Buick Rendezvous CXL sport utility vehicle bearing license plate 676 NB4. The CI indicated that on Friday nights the defendant used the club as a base of operation and that the CI personally observed the defendant make cocaine sales in the club's bathroom. The CI also indicated that the defendant would receive telephone calls and travel to individuals' homes to sell drugs. The CI also told West that the defendant usually carried a firearm and the CI believed the defendant did not have a valid driver's license.

Because West was no longer involved in narcotics investigations and because the club was in Lowell, not Billerica, he passed the CI's tip and contact number to Sergeant Noone of the Lowell police department. West explained to Noone that the CI was an informant who had been "signed up by Billerica" and had been reliable in the past, including having given information that led to arrests and seizures. Noone assigned the matter to Lowell police Detective Rafael Rivera. When Rivera spoke by phone with the CI, the CI repeated what he had disclosed to West and that he had seen the defendant in the club only a "couple of days before," in possession of drugs and his gun. Rivera ran the license plate number the CI had given him and the records showed that the vehicle was registered to Kennedy Ruiz–Mejia.²

On Friday, June 28, 2013, at about 7:25 P.M. , Rivera and three other undercover officers, in four separate vehicles, set up surveillance around the club. Rivera saw a vehicle matching the make, model, license plate, and color supplied by the CI. After a few minutes, a man matching the description of "Eddie" exited the club, got into the vehicle, and drove away. When the vehicle turned into a gasoline station, Lowell police Detective Michael Kandrotas pulled in behind it, activating the concealed lights and siren on his unmarked cruiser.

Kandrotas exited his vehicle and, as he approached, observed the driver make a quick movement to his right, as if to toss something into the back seat. Because the defendant had been reported to carry a firearm, Kandrotas had the defendant exit the vehicle. Rivera joined Kandrotas and recognized the defendant as someone he knew from prior narcotics investigations.

Rivera confirmed through dispatch that the defendant did not have a current driver's license. The defendant was placed under arrest for operating a vehicle without a license. Rivera searched the defendant and found $5,100 on his person. The defendant was transported to the police station. During booking, it was determined that the defendant had an alias of Eddie Mambru.

Because the defendant's vehicle was blocking a gasoline pump, and the police were going to search it, the police moved it across the street to a school parking lot after the defendant was arrested. The Lowell inventory policy, which was introduced at the motion hearing, provides for the inventory and towing of a vehicle that was, or is, being used in the commission of a crime. When police opened the rear door, they observed a loaded .40 caliber semiautomatic handgun poorly concealed in a sock on the floor. In a second sock, police recovered twenty-seven bags, each containing a powder later confirmed to be cocaine.

The motion judge found that the police had conducted an investigatory stop based on information supplied by the CI. The judge recognized that in such circumstances, the CI's information must establish both the reliability and basis of knowledge prongs set forth under the Aguilar–Spinelli test.³ The judge reasoned that " ‘[b]ecause the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible’ ... [and] independent police corroboration may ‘make up for deficiencies in one or both of these factors.’ " Commonwealth v. Pinto, 476 Mass. 361, 364, 67 N.E.3d 713 (2017), quoting from Commonwealth v. Depina, 456 Mass. 238, 243, 922 N.E.2d 778 (2010).

Applying this standard, the judge ruled that the CI's basis of knowledge was self-evident from the tip and founded on personal observation. On the veracity prong, according to West, "The information [the CI] provided allowed [West] to seize various types of narcotics, make drug seizures and drug arrests, as well as seizing money, the proceeds of drug profits." Through cross-examination, defense counsel elicited that individuals who make controlled buys are considered to be "informant[s]"; that "if [a] person had, in fact, made a series of purchases on behalf of the Billerica [p]olice [d]epartment, [West] could honestly say that that individual had provided [West] with information that if it did lead to arrest, to arrest and seizure ..."; and that, specifically, this CI had previously made controlled buys for the Billerica police department. The Commonwealth did not ask West on redirect examination whether the CI previously had been a tipster and not merely a controlled buyer. The judge specifically found: "I understand [West's] testimony to mean that the CI supplied substantive information as well as helping with controlled buys." The judge also found that knowledge of the CI's past track record of reliability with Billerica, which was conveyed to Lowell, was sufficient to "satisf[y] the veracity test."

Discussion. 1. Motion to suppress. a. The stop. "In reviewing a denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480, 869 N.E.2d 605 (2007).

Here, because there is no live dispute regarding the CI's basis of knowledge, given the CI's personal observations of the defendant in possession of drugs and a gun only days prior to the tip, we focus on the evidence of the CI's veracity. The motion judge gave West's testimony regarding the CI's prior track record its plain and ordinary meaning, namely that on more than one previous occasion the CI had directly provided material information regarding violations of the law and, further, that the CI provided "substantive information." The judge's finding of fact comports with the language West used, the testimony that the informant had been reliable in the past, and the common situation presented in police work in which a CI provides material information regarding criminal violations and is then engaged to execute a controlled buy.⁴ See, e.g., Commonwealth v. Perez–Baez, 410 Mass. 43, 44–46, 570 N.E.2d 1026 (1991) (recitation that informant had "provided information" previously that led to arrests and seizure of cocaine sufficiently established informant's veracity); Commonwealth v. Mendes, 463 Mass. 353, 365, 974 N.E.2d 606 (2012) (CI provided information and made controlled buy); Commonwealth v. Baldasaro, 62 Mass. App. Ct. 925, 926, 818 N.E.2d 189 (2004) (same); Commonwealth v. Velez, 77 Mass. App. Ct. 270, 273, 929 N.E.2d 984 (2010) (same); Commonwealth v. Lima, 80 Mass. App. Ct. 114, 119 n.5, 951 N.E.2d 952 (2011) (same); Commonwealth v. Perez, 90 Mass. App. Ct. 548, 554, 60 N.E.3d 1188 (2016) (same).

The defendant contends that there was a possible alternative interpretation of West's testimony: that in the past the CI could have been only a controlled buyer who had not provided information, which would be insufficient to establish the CI's veracity. See Commonwealth v. Carrasquiello, 45 Mass. App. Ct. 772, 775–776, 702 N.E.2d 384 (1998) (differentiating between confidential informants as tipsters and controlled buyers for purposes of veracity).⁵ This argument is insufficient to show clear error in the motion judge's findings of fact.

First, on a motion to suppress, "[q]uestions of credibility are the province of the motion judge who had the opportunity to observe the witnesses." Commonwealth v. Tremblay, 460 Mass. 199, 205, 950 N.E.2d 421 (2011). Second, and more...