Commonwealth v. Ortiz

466 Mass. 475

995 N.E.2d 1100

COMMONWEALTH

v.Luis ORTIZ.

SJC–11298.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 9, 2013.

Decided Sept. 27, 2013.

Robert L. Sheketoff, Boston, for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

The defendant appeals from his convictions of distribution of a class B controlled substance, G.L. c. 94C, § 32A ( c ), and committing a drug offense within a school zone, G.L. c. 94C, § 32J. The trial took place before a jury in 2011, more than two years after the United States Supreme Court decided Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Before trial, the defendant's trial counsel orally stipulated that the substance at issue was cocaine and both the Commonwealth and defendant effectively treated this as an established fact during trial, but the jury only became aware of the stipulation itself when the judge spoke of it during his final charge to the jury. The defendant appeals from his convictions, arguing, among other claims, that because the stipulation never was presented to the jury, the Commonwealth failed to prove that the substance was cocaine and his motion for a required finding of not guilty should have been allowed.¹ In a related vein, the defendant contends that any stipulation to an element of the crime charged must be recorded in a writing and signed by the defendant or at least the subject of a colloquy between the defendant and the trial judge, and the use of his trial counsel's oral stipulation without any writing signed by the defendant, or any judicial colloquy, constituted error requiring a new trial.

To date, we have not established any particular method for the parties in a criminal case to handle trial stipulations about the existence of an element of a crime or of a material fact more generally. Even if there were error in the manner the stipulation was handled in the present case, where the defendant does not dispute the existence of a stipulation that the substance at issue was cocaine, and where there was no objection at trial to the fact that this stipulation was first introduced to the jury during the course of the judge's final instructions, we conclude that no substantial risk of a miscarriage of justice resulted. In future cases, however, it will be incumbent on the Commonwealth to ensure that any stipulation concerning the existence of an element of the crime charged or of any material fact related to proof of the crime is presented in some manner to the jury as part of the evidence of the case.

We also reject the defendant's claim that under current rules of practice, a stipulation between the Commonwealth and the defendant as to an element of a crime, no matter when the stipulation is agreed to, must be in writing and signed by him or the subject of a colloquy between the defendant and the trial judge. But in light of Mass. R.Crim. P. 11(a)(2)(A), as appearing in 442 Mass. 1509 (2004), directing that any stipulation to the existence of a material fact contained in a pretrial conference report be signed by the defendant himself, we shall ask this court's standing committee on the rules of criminal procedure to consider whether it would be appropriate to adopt by rule a requirement similar to rule 11(a)(2)(A) that would apply to stipulations first entered into at or immediately before trial.²

Background. A complaint issued from the Quincy Division of the District Court Department on July 7, 2010, charging the defendant with the class B drug distribution and school zone charges of which he was convicted.³ The defendant moved to suppress evidence, and the motion was allowed in part and denied in part. A jury trial commenced in the District Court on September 22, 2011, but resulted in a mistrial after a witness referred to evidence that had been suppressed. A second jury trial took place on December 15, 2011, with a different judge of the District Court presiding, and the jury returned guilty verdicts on both charges. The defendant was sentenced to one year in the house of correction on the distribution charge, and two years on and after on the school zone charge. The defendant timely appealed, and we granted his application for direct appellate review.

We recite the facts in the light most favorable to the Commonwealth, given the defendant's challenge to the sufficiency of the evidence. See Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979). On June 29, 2010, Detective Erin Metcalf of the Weymouth police department was conducting undercover surveillance on Washburn Street when she observed a green sport utility vehicle (SUV) operated by a Hispanic male arrive in front of the residence of Karen McDonald at 24 Washburn Street. McDonald came out of her house and approached the passenger side of the green SUV, reached her right hand inside the passenger window, and then retracted her hand, concealing in it what appeared to be some kind of object.

Metcalf conducted undercover surveillance of McDonald's residence a week later, on July 6, 2010. At approximately 11 a.m., the same SUV that she had observed the previous week, operated by the same Hispanic male, arrived in front of the house. McDonald again approached the passenger side of the vehicle, extended her right hand into the window, and retracted it.

After the SUV drove off, Metcalf immediately approached McDonald and noticed that McDonald had a tissue paper in her hand; McDonald tried to put the tissue paper into her pocket. Metcalf identified herself as a police officer and ordered McDonald to “hand” her the tissue paper. McDonald did so, and Metcalf observed that it contained six small bags of white powder that she identified at trial as cocaine.⁴

Metcalf reported what she had found over the police radio, and asked other officers to locate the green SUV and detain the driver. Two officers stopped the SUV around the corner from McDonald's residence. A third officer placed the driver (the defendant) under arrest. During a search of the defendant incident to the arrest, an officer seized from him two stacks of currency totaling $150, and an additional dollar bill containing a white powder residue.

When Metcalf arrived at the scene, she asked the defendant if he had any additional drugs on him, to which he replied, “I don't do drugs. I don't sell drugs.” She further inquired “if [the defendant] [had] met a female at the corner house,” to which he responded, “I don't know what you're talking about”; finally, she inquired whether the defendant had “stopped at number [twenty-four],” which prompted the defendant to state that he had stopped in front of that house after a woman “wav[ed] him down,” and that he was en route to visit a friend named Jennifer somewhere in Weymouth. The defendant denied having been on Washburn Street prior to that date, July 6. ⁵

Discussion. 1. Stipulation that the substance was cocaine. The defendant claims that his motion for a required finding of not guilty should have been allowed because the Commonwealth did not introduce at trial any evidence that the substance at issue was a class B substance (cocaine). He argues that insofar as the Commonwealth must prove his guilt of a charged offense based on the evidence presented at trial, any stipulation to the existence of an essential element of such an offense must be presented to the jury during the Commonwealth's case or, in any event, before the close of the evidence. Given that the Commonwealth never introduced the stipulation or its contents during the evidence phase of this case, he contends, a finding of not guilty was required. The Commonwealth responds that under applicable evidentiary rules and principles, it was not required to introduce evidence of the stipulation or its contents during its case, and that, if we view the matter in the light most favorable to the Commonwealth, a rational trier of fact could fairly have concluded, based on the stipulation explained by the judge and the trial evidence, that all the elements of the crime of distribution of a controlled substance had been proved beyond a reasonable doubt.

Before considering the defendant's claim, we summarize the factual context in which it is presented.

a. Facts. At the beginning of the defendant's second trial, the trial judge inquired of the prosecutor and the defendant's counsel whether they had agreed to stipulate that the substance was cocaine; both counsel agreed that they had.⁶ During trial, both the prosecutor and defense counsel referred to the substance in the six small bags taken from McDonald as cocaine, but no mention of the stipulation itself was made by the prosecutor, the defendant's counsel, or the judge during the Commonwealth's case, and no certificate of drug analysis identifying the substance in the six bags as cocaine was introduced in evidence. At the close of the Commonwealth's case, the defendant orally moved for a required finding of not guilty but did not specifically mention the stipulation or more generally the absence of evidence concerning the identity of the alleged controlled substance as cocaine. The judge denied the motion. The defendant did not call any witnesses. After the formal close of the evidence, the judge indicated to both counsel during a charge conference that he planned to mention the agreed-upon stipulation as part of his final instructions to the jury. The defendant's counsel registered no objection.

In his final charge, the judge explained to the jury that to prove the defendant guilty of distribution of a controlled class B substance, the Commonwealth had to prove “three things” beyond a reasonable doubt: (1) the identity of the substance in question as a controlled substance, cocaine; (2) distribution by the defendant; and (3) that the defendant distributed the controlled substance...