Commonwealth v. Paulino

COMMONWEALTH v. JUAN PAULINO.

11-P-1196

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

June 25, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this consolidated appeal, the defendant, Juan Paulino, appeals from his conviction of conspiracy to violate the controlled substance laws, G. L. c. 94C, § 40, and the denial of his motion for new trial. He contends that (1) the trial judge erred in denying trial counsel's motion for a continuance; (2) various hearsay statements were admitted over objection either without proper foundation or sufficient limiting instruction; (3) the trial judge erred in denying the defendant's motion for a required finding of not guilty; (4) trial counsel was ineffective for various reasons; and (5) the motion judge abused his discretion by denying the defendant's motion for new trial without a hearing.¹ For the reasons set forth below, we affirm.

Discussion. 1. Motion for continuance. The defendant contends that the trial judge abused his discretion in denying trial counsel's motion for a continuance. Trial counsel, who had been appointed one year before trial began, informed the judge on the morning of trial that he did not feel prepared to proceed; the judge denied the motion on the basis that the case had "been in the system for some time." The judge elaborated on his decision when trial resumed on the second day, noting that the prosecutor on the case was retiring, and the continuance would likely be for a period of months due to the unavailability of jurors. The judge did not abuse his discretion in balancing the asserted grounds for the motion with concerns of judicial efficiency and prejudice to the Commonwealth. See Commonwealth v. Gilchrest, 364 Mass. 272, 276-277 (1973); Commonwealth v. Bryer, 398 Mass. 9, 15 (1986). The denial of the motion did not "impair the defendant's constitutional right to counsel who has had a reasonable opportunity to prepare a defense." Commonwealth v. North, 52 Mass. App. Ct. 603, 612 (2001).

2. Evidentiary issues. a. Authentication. Officer Delgado listened to a telephone conversation between the named informant and a third party in which the informant set up a drugtransaction. The defendant contends that there was insufficient foundation to authenticate the voice of the third party as the defendant's.

Officer Delgado testified that after he arrested the defendant and spoke to him, he recognized the defendant's voice as the voice he previously overheard on the telephone call with the informant. In the usual course, the identification of the voice is permitted based on knowledge predating the telephone call. See Chartrand v. Registrar of Motor Vehicles, 345 Mass. 321, 325 (1963). In some circumstances, other forms of authentication are permitted. See Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) (reference to other confirmatory circumstances); Commonwealth v. Carpinto, 37 Mass. App. Ct. 51, 53-54 (1994) (use of tape recording to identify voice after the fact). Here, the confirming circumstances in conjunction with Officer Delgado's recognition of the defendant's voice were sufficient to authenticate the identification. These circumstances -- that the police were conducting a sting operation, the officer listened to a man on the telephone agreeing to deliver one ounce of cocaine to the informant at a Friendly's restaurant parking lot nearby, the defendant and his girl friend showed up at the designated location within a short period of time, and the girl friend dropped an ounce of cocaine at the scene -- were sufficient, together with the officer'sidentification of the defendant, to authenticate the voice. See Commonwealth v. Anderson, supra. See also Rich v. Weeks, 279 Mass. 452, 455-456 (1932); Commonwealth v. Hartford, 346 Mass. 482, 488 (1963). It was for the jury to decide whether the defendant was in fact the other party on the telephone call overheard by Officer Delgado. See Commonwealth v. Hartford, supra.

b. Hearsay. Two officers testified to out-of-court statements made by the informant. The defendant contends that these statements were inadmissible hearsay. We analyze each instance of contested testimony in turn.

Officer Delgado testified that the informant, the subject of a drug trafficking investigation, stated that "he would be willing to cooperate." Trial counsel objected on hearsay grounds. Before the jury, the Commonwealth asserted that the statement was elicited not for its truth but to explain why the police were speaking to the informant. The judge overruled the objection and gave a somewhat shorthand instruction.² The evidence was properly admitted for its nonhearsay purpose. The testimony was "based on [Officer's Delgado's] own knowledge, it[was] limited to the facts required to establish [his] state of knowledge, and the police action or knowledge [was] relevant to an issue in the case." Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 383 (2003).

To the extent that the judge's instruction may not have clearly explained the limits on the testimony in the eyes of the jury, trial counsel did not request a more specific limiting instruction or object to the adequacy of the instruction given. We discern no substantial risk of a miscarriage of justice where some limiting instruction was given and the objection and proffered basis for admission of the testimony were lodged and explained before the jury. See Commonwealth v. De La Cruz, 405 Mass. 269, 275-276 (1989).

Lieutenant Pratt testified that the informant was going to place a telephone call. During a conference at sidebar, the judge overruled a hearsay objection, ruling at sidebar that the testimony was being offered to explain why surveillance was subsequently set up. Lieutenant Pratt then testified that as a result of the telephone call placed by the informant, surveillance was set up in the Friendly's parking lot. The evidence was properly admitted for the purpose of explaining the sequence of events and the reason for the surveillance. See Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 389-390 (2013). Lieutenant Pratt did not disclose the substance of anystatements made by the informant. Rather, his testimony described police action taken "as a consequence of a conversation." Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 438 (2006), quoting from Commonwealth v. Perez, 27 Mass. App. Ct. 550, 554 (1989).

Officer Delgado was asked to elaborate on the conversation that took place with the informant. The judge overruled the defendant's hearsay objection based on the Commonwealth's assertion that the testimony was being offered only "for what was done after they had this conversation." Trial counsel did not ask for a limiting instruction and the judge did not offer one. Officer Delgado then testified that the informant said he would call his source. Trial counsel's hearsay objection was overruled. No limiting instruction was requested or given. Officer Delgado then testified that the informant "stated that he would need an ounce" and the person at the other end of the telephone "agreed and stated that they would be over shortly," referring to the Friendly's parking lot on Route 5.

It was error to admit the informant's statements. See Commonwealth v. Rosario, 430 Mass. 505, 507 (1999). The testimony repeated the substance of the out-of-court statements of the informant instead of appropriately limiting the testimony to a general statement explaining the state of police knowledge. See Commonwealth v. Tanner, 66 Mass. App. Ct. at 438-439.However, despite the lack of curative limiting instruction, see Commonwealth v. Flebotte, 417 Mass. 348, 351-353 (1994), we discern no prejudice in light of the properly admitted evidence that Officer Delgado ultimately recognized the other voice to be that of the defendant, and that the defendant agreed to meet the informant and sell him drugs. See Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001) (defendant's statements admissible as admission of party opponent). We "conclude that the claimed improperly admitted testimony exerted little or no effect upon the verdict[]." Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680 (2011).

Officer Delgado further testified that the informant identified the defendant as his source when they arrived at the designated location for the drug buy. Trial counsel's objection was overruled. For the reasons stated above, some evidence was admissible for the state of police knowledge, but admitting the substance of the statement itself was improper because of its potential for prejudice. See Commonwealth v. Tanner, supra; Commonwealth v. McLaughlin, supra at 679. However, at the close of the evidence, the judge gave a "strong limiting instruction directing the jury that they could not consider the evidence . . . for the truth of [the identification]," but were limited to consider the evidence to explain the state of police knowledge. Commonwealth v. Rupp, 57Mass. App. Ct. at 384 This instruction, in conjunction with the properly admitted identification of the defendant by Officer Delgado (as discussed above), cured any potential prejudice to the defendant. Id. at 384-385.

3. Sufficiency. The defendant maintains that the evidence of a conspiracy was insufficient. We review the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Cullity, 470 Mass....