Commonwealth v. Rodriguez

89 Mass.App.Ct. 1129

54 N.E.3d 606 (Table)

COMMONWEALTH

v.Omar RODRIGUEZ.

No. 14–P–1750.

Appeals Court of Massachusetts.

June 27, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of possession of heroin with intent to distribute, subsequent offense, in violation of G.L. c. 94C, § 32(a) & (b). On appeal, he challenges the denial of his motion to dismiss on the grounds of collateral estoppel; the admission of testimony from an expert witness that he claims expressed an opinion on the ultimate issue; several aspects of the prosecutor's closing argument; and the sufficiency of the evidence as to intent to distribute. We affirm.

Background. We recount the facts the jury could have found in the light most favorable to the Commonwealth.

On April 26, 2012, at around 8 A.M., State Trooper Francis Walls and Sergeant Michael McCarthy were waiting outside 21 Sawtell Avenue in Brockton. They observed a gray Ford SUV with Maryland license plates driving north along the road. The officers determined that this car was a rental car. For reasons not explained to the jury, they pulled the car over and arrested the defendant, who was the driver and only occupant. During a search of the defendant, Trooper Walls found a plastic bag containing fourteen smaller twist bags of heroin in a rear pocket of his pants and $1,155 in the left front pocket. The heroin weighed approximately five grams.²

Thomas Keating, a Brockton police officer, testified as a nonpercipient expert witness on how drugs, and heroin in particular, are bought and sold. Users typically pay for heroin in cash, but it would be unusual for a user to possess fourteen bags of heroin at the same time or a large amount of cash. Users usually have some sort of drug use paraphernalia on their persons, such as needles, straws, or rolled-up bills. They tend to start out by snorting heroin and switch to injecting it when they “get to a high extreme of the addiction.” Dealers often sell individually wrapped half grams of heroin for $40 to $50. The fourteen small bags introduced into evidence appeared to contain half grams of heroin, worth roughly $50 each or $700 all together. Dealers typically buy larger amounts of heroin, such as a “finger” weighing ten grams, which they break down into smaller bags for sale. Dealers typically rent cars or use other schemes to “make it harder for police to track them down.” Finally, while dealers generally possess scales, crib sheets, and additional packaging, they leave those items at their homes, where they measure and package the product.

The defendant introduced as evidence his April, 2012, medication administration record from the Plymouth County House of Correction and called Dr. William Stuart, an emergency room physician, to testify in his defense. The medical record indicated that the defendant had received a prescription for clonidine while he was incarcerated in April, 2012. Dr. Stuart stated that clonidine is prescribed for both hypertension and narcotic withdrawal. He also testified that people who have withdrawal are usually daily users, that daily users' tolerance tends to increase, and that daily users can use four to ten or more 0.1 gram bags of heroin per day. On cross-examination, he made a “guess” that a 0.1 gram bag sells for $50.

Discussion. 1. Collateral estoppel. The defendant argues that the judge erred by denying his motion to dismiss on the basis of collateral estoppel. Before addressing this argument, we must set forth additional facts that were not before the jury.

a. Additional background. On the morning of April 26, 2012, Trooper Walls had a search warrant that authorized him to search for controlled substances and related property both at 21 Sawtell Avenue and on the person of the defendant. At some point, Trooper Walls did a Registry of Motor Vehicles check on the defendant and learned that his license was suspended. After the defendant pulled over in front of 21 Sawtell Avenue, Trooper Walls pulled behind his car and another police car pulled in front.

When the defendant exited his vehicle, Trooper Walls explained that the police were there to execute a search warrant and placed him in handcuffs. It is not clear from Trooper Walls's grand jury testimony whether he immediately informed the defendant that he was under arrest for driving with a suspended license.³ The police searched the defendant, found his keys, and used those keys to enter the rear door of 21 Sawtell Avenue and the defendant's individual apartment. Inside the defendant's apartment, the police found, among other things, eleven and one-half fingers of heroin, scales and bags, an unloaded but operable .45 caliber revolver, and a magazine with nine rounds. All the heroin together weighed over one hundred grams. The search warrant return lists all the heroin seized, including both the five grams seized from the defendant's pocket and the 11.5 fingers seized from his bedroom.

On June 15, 2012, the first grand jury issued indictments charging the defendant with (1) trafficking in heroin by possessing with intent to distribute heroin with a net weight between one hundred grams and two hundred grams, in violation of G.L. c. 94C, § 32E(c)(3) ; (2) possessing a firearm without a firearm identification card, in violation of G.L. c. 269, § 10(a) ; (3) possessing ammunition without a firearm identification card, in violation of G.L. c. 269, § 10(h) ; (4) defacing the serial number of a firearm, in violation of G.L. c. 269, § 11C ; and (5) operating a motor vehicle on a public way with a suspended license, in violation of G.L. c. 90, § 23. The defendant filed a motion to suppress on March 12, 2013, and a memorandum in support on March 18, 2013, on the grounds that the search warrant affidavit failed to establish probable cause. The judge held a suppression hearing on April 12, 2013, and granted the motion on July 19, 2013. The Commonwealth entered a nolle prosequi on the first four indictments on September 12, 2013. The defendant pleaded guilty to operating with a suspended license on May 14, 2014.

On May 10, 2013, while the motion to suppress was pending, a second grand jury issued an indictment for possession of heroin with intent to distribute, in violation of G.L. c. 94C, § 32. As the discussion of the trial evidence above indicates, this indictment was based on the defendant's possession of the five grams of heroin found on his person. The defendant was arraigned on July 29, 2013, eleven days after the judge granted the motion to suppress in the first proceeding. The defendant filed a motion to dismiss on the basis of collateral estoppel on September 27, 2013. The same judge who presided over the first proceeding denied the motion on February 7, 2014.

b. Discussion. The defendant argues that the suppression order in the first proceeding covered the drugs seized from his person, and that therefore the Commonwealth's failure to appeal the suppression order estops it from introducing the suppressed evidence in the second proceeding. We conclude that collateral estoppel does not apply.

Collateral estoppel “precludes relitigation of issues determined in prior actions between the parties.” Sena v. Commonwealth, 417 Mass. 250, 260 (1994). This court has adopted the following requirements for determining whether collateral estoppel applies: “(1) the issues in the two proceedings must be the same; (2) the [party estopped] must have had sufficient incentive to have vigorously and thoroughly litigated the issue in the previous proceeding; (3) the [party] estopped must have been a party to the previous litigation; (4) the applicable law must be identical in both proceedings; and (5) the first proceeding must have resulted in a final judgment on the merits such that the [party estopped] was provided with sufficient incentive and an opportunity to appeal.” Commonwealth v. Ringuette, 60 Mass.App.Ct. 351, 357, S.C., 443 Mass. 1003 (2004).

Thus, under the doctrine of collateral estoppel, when a defendant's motion to suppress is allowed in an earlier proceeding and the Commonwealth fails to appeal, that suppression order is binding in any future prosecution of the defendant. Commonwealth v. Williams, 431 Mass. 71, 75 (2000). However, dismissal of a subsequent indictment is not required if the Commonwealth “has other evidence, independent of the evidence that had been suppressed, to prove its case against the defendant.” Id. at 77.

Whether estoppel applies is a question of law based on a determination of what precise issue was litigated in the prior proceeding. Thus, this court reviews claims of estoppel de novo. See, e.g., Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (conducting de novo review of whether estoppel applies); Commonwealth v. Lunden, 87 Mass.App.Ct. 823, 825–826 (2015) (same).

After reviewing the documents in the record relating to the suppression order in the first proceeding, we conclude that collateral estoppel does not require dismissal of the indictment in this case. Although the search warrant authorized a search of the defendant's person and the heroin found on his person was listed on the search warrant return, the motion to suppress, the memorandum in support, and the suppression order did not seek or order suppression of everything seized pursuant to the search warrant. The motion to suppress requests suppression of “all evidence seized from 21 Sawtell Avenue, Brockton, Massachusetts” (emphasis added). The arguments in the memorandum in support of the motion only addressed the evidence seized from the defendant's building. The decision on the motion to suppress thus only rules that the search warrant affidavit failed to establish probable cause to search the defendant's building. Accordingly, the judge did not err in concluding that collateral estoppel did not bar prosecution of the defendant based on the drugs found on his person.

2. Expert testimony. The defendant argues that Officer Keating's expert testimony...