Commonwealth v. Rosa

94 Mass.App.Ct. 1115

119 N.E.3d 357 (Table)

COMMONWEALTH

v.Anthony ROSA.

17-P-1614

Appeals Court of Massachusetts.

Entered: December 28, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, the defendant was convicted of possession of a firearm in the commission of a felony, G. L. c. 265, § 18B ; possession of ammunition without a firearm identification card (FID card), G. L. c. 269, § 10 (h ) ;² possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c ) ; unlawful distribution of cocaine, G. L. c. 94C, § 32A (c ) ; unlawful possession of marijuana with intent to distribute, G. L. c. 94C, § 32C (a ) ; negligent operation of a motor vehicle, G. L. c. 90, § 24 ; failure to stop for a police officer, G. L. c. 90, § 25 ; and resisting arrest, G. L. c. 268, § 32B. In this consolidated appeal from his convictions and the denial of his motion for new trial, the defendant's arguments pertain only to the denial of his motion. He claims that he is entitled to a new trial based on newly discovered evidence. We affirm for substantially the same reasons stated by the motion judge, who was also the trial judge.

Background. In January, 2014, the Springfield police department conducted an undercover drug operation at a residence. As Detective Mark Templeman remained in his parked vehicle near the residence, he was joined by a cooperating witness. After approximately twenty minutes, the defendant arrived driving a Mercury Mountaineer. The cooperating witness exited Templeman's vehicle. The defendant and his passenger exited the Mountaineer and entered the residence with the cooperating witness while Templeman remained in his vehicle.

Sergeant Steven Kent, who was conducting surveillance of the undercover operation, observed the defendant carrying a gray backpack as he exited the vehicle. A few minutes later, the cooperating witness returned to Templeman's vehicle and provided him with two baggies containing a white powdered substance that he had obtained in the residence in exchange for forty dollars of prerecorded "buy money" provided by Templeman. Meanwhile, the defendant and his passenger were observed leaving the residence and returning to the Mountaineer. The Mountaineer drove away. Kent then requested that another officer locate the Mountaineer.

When the officer located the Mountaineer a few minutes later, he activated his cruiser lights and siren. The defendant did not pull over, and, after a short pursuit, the defendant lost control of the Mountaineer and drove onto a residential lawn. The defendant fled from the vehicle on foot while carrying a gray backpack. After searching for the defendant for approximately twenty minutes, officers apprehended him and took him into custody. Nearby, officers recovered the gray backpack, which contained two firearms, ammunition, and thirteen bags of marijuana. A search of the defendant's person also yielded $650, which included the forty dollars of prerecorded buy money that Templeman had given the cooperating witness to purchase the cocaine from the defendant.

After the defendant was transported to the police station in a police cruiser, a small black pouch with two baggies of cocaine was recovered from the backseat of the cruiser. The money that had been seized from the defendant was brought to the police station and divided: the forty dollars in buy money was placed in Sergeant Kent's desk to be used for future drug buys, and the balance of $610 was packaged, labeled, and dropped through a mail slot into the evidence vault. The suspected cocaine and marijuana were delivered to the University of Massachusetts forensic laboratory in Worcester by Officer Kevin Burnham, the department's then-acting evidence officer. They were analyzed and confirmed to be controlled substances. The firearms and ammunition recovered from the gray backpack were tested by the State police.

At the trial of this action in June, 2015, Detective Templeman testified on both direct and cross-examination that the money seized from the defendant at the time of his arrest was delivered to the Springfield police department evidence room, and later could not be located. He further testified that an audit was being conducted at the police department and that a criminal investigation was underway regarding the missing money. Sergeant Kent, who was by then a lieutenant, also testified that money was missing from other cases and that a criminal investigation was underway. He further testified that he was unaware of other types of missing evidence.

Approximately six months after the defendant's convictions, Officer Burnham was indicted on larceny charges stemming from the evidence of missing money. The principal basis for the defendant's new trial motion was that Burnham likely stole money that was confiscated from the defendant and that constituted evidence in his case.

Discussion. 1. The denial of a motion for new trial is reviewed only for "a significant error of law or other abuse of discretion." Commonwealth v. Weichell, 446 Mass. 785, 799 (2006), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Where, as here, the motion judge was also the trial judge, his views are accorded "special deference." Commonwealth v. Sullivan, 469 Mass. 340, 351 (2014).

To prevail on a motion for new trial on the basis of newly discovered evidence, the defendant must meet a two-part test. The defendant must demonstrate, first, that the evidence was in fact newly discovered in the sense that it was unknown to the defendant or his counsel at the time of trial and that it was not reasonably discoverable, and,...