Commonwealth v. Sullivan

76 Mass.App.Ct. 864

927 N.E.2d 519

COMMONWEALTH,v.James SULLIVAN.

No. 08-P-1677.

Appeals Court of Massachusetts Hampden.

Argued Dec. 10, 2009.

Decided June 4, 2010.

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Stacey Gross Marmor, Northboro, for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Present: MILLS, KATZMANN, & FECTEAU, JJ.

FECTEAU, J.

The defendant appeals from convictions, after a jury trial in the Superior Court, of two counts of unlawful distribution of cocaine, G.L. c. 94C, § 32A( c ).¹ He raises four evidentiary claims: (1) testimony describing the process by which the informant was authorized to serve as such and participate in controlled drug buys (controlled buys) constituted improper vouching; (2) testimony indicating the informant had purchased cocaine from the defendant before the dates of the indicted offenses constituted impermissible prior bad act evidence; (3) testimony indicating law enforcement personnel were assigned to a gang task force was improper as it was irrelevant and prejudicial; and (4) the admission of drug analysis certificates (certificates) violated the defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution. Additionally, the defendant claims he received ineffective assistance of counsel in the failure of trial counsel to object to these evidentiary matters (with the exception of the prior bad act testimony), and that cumulative error created a substantial risk of a miscarriage of justice. We affirm.

Background. We summarize the facts as the jury could have found them, reserving certain details for discussion of the issues.

Four people testified for the Commonwealth: Trooper Fred Geiger of the Massachusetts State police; Officer Robert Lockett of the Chicopee police department ²; Special Agent Christopher Dillon of the Federal Bureau of Investigation (FBI); and Charles Smith, an informant who participated in two controlled buys from the defendant. Geiger first met Smith in February, 2006.³ Smith told Geiger that he had information about drug dealing and expressed his willingness to make controlled buys. He named several drug dealers, including the defendant, and while Smith worked with law enforcement on several cases, the defendant was one of the persons they first targeted.

On February 16, 2006, at the FBI office in the presence of Geiger, Smith called the defendant to arrange a purchase of cocaine for the next day. On February 17, Smith again met the officers at the FBI office; Smith called the defendant and established a meeting at 55 Dearborn Street in Springfield. Geiger searched Smith's person and car, including those areas where a one-quarter ounce bag of cocaine (such as that later marked as an exhibit) could be secreted, to ensure that Smith was not in possession of money, weapons, or narcotics. Smith was outfitted with a covert audio and video recorder, which provided a live audio feed for Smith's safety. The agents activated the equipment and provided Smith with $275 in buy money.⁴ Smith and Geiger drove to Dearborn Street separately, with Geiger following Smith.⁵ Geiger was aware that Smith's car had been having problems, and several times during the drive, Smith stopped the car and checked under the hood. Geiger testified that he could not see what Smith did while he was under the hood.

When Smith arrived at Dearborn Street, he called the defendant and was told to pull into the driveway, which is where the two met. During the minute or two that the defendant and Smith were together, Geiger could see the defendant in person. The video showed the defendant reach into his pocket and then, later hold currency in his hand. However, the video did not show the exchange of drugs for money that Smith described in his testimony. Smith drove directly back to the FBI office with Geiger following. Geiger had maintained visual contact with Smith the entire time the video equipment was taping. Smith explained what had transpired and gave the substance he purchased from the defendant to Geiger. Geiger again searched Smith and his car and found nothing of consequence.

Geiger and Smith next met on February 28, 2006, to set up the second controlled buy. They followed the same procedures as the first occasion, with the exception that this time Smith was directed to purchase a certain amount of cocaine and given a digital scale. Smith was told to inform the defendant that he wanted to weigh the drugs because he had been “shorted” the first time. Geiger again followed Smith and kept him under surveillance to the prearranged location, Smokin' Deals, a store in Springfield. Geiger was also in contact with Smith by cellular telephone. Geiger saw Smith arrive at the location and saw the defendant and Smith together in a car for less than a minute. Geiger continued to observe Smith as he drove back to the FBI office. Once back at the office, the same debriefing and search procedures as before were followed. Again, the search of Smith and his car turned up nothing of consequence.

After each controlled buy, Geiger field tested the substances obtained from the defendant, then sent them to a lab for analysis. Both the field tests and laboratory analyses indicated the substances were cocaine.

Discussion. Vouching. The defendant claims that testimony on the process used to obtain approval to use Smith as an informant and controlled buyer constituted impermissible vouching. As the defendant did not object to this testimony, “we review to determine whether the statements were improper and, if so, whether they created a substantial risk of a miscarriage of justice.” Commonwealth v. Kebreau, 454 Mass. 287, 304, 909 N.E.2d 1146 (2009).

In particular, the defendant's claim is based on the testimony of Trooper Geiger and Special Agent Dillon describing the process necessary for Smith to become a government informant and participate in controlled buys. Geiger testified that he introduced Smith to “one of the controlling FBI agents,” submitted information about Smith's criminal history to the FBI, consulted with the United States Attorney's office, and tested Smith's veracity. Geiger indicated that as Smith “pass[ed] a certain standard,” he was given a code name and authorized to make controlled buys. Dillon testified that the process used to decide whether to enlist an individual as an informant involved an “extensive background” check and the corroboration of information provided by that individual to determine “if it holds any water.”

The Supreme Judicial Court has recognized that prosecutors must not explicitly or implicitly vouch for the truthfulness of a witness's testimony. Commonwealth v. Ciampa, 406 Mass. 257, 265, 547 N.E.2d 314 (1989). Furthermore, “[b]ecause police witnesses may also introduce ... prejudice by vouching for cooperating witnesses ... the proscription against vouching ... should extend to them as well.” Commonwealth v. Chaleumphong, 434 Mass. 70, 74, 746 N.E.2d 1009 (2001). Here, neither Geiger nor Dillon vouched for the truthfulness of Smith, since they never “expresse[d] a personal belief in the credibility of [Smith] ..., [nor indicated] that [they] ha[d] knowledge independent of the evidence before the jury verifying [Smith's] credibility.” Ciampa, supra (citation omitted).

The defendant has not identified any testimony, by either Geiger or Dillon, that specifically vouched for Smith's testimony describing the two controlled buys. Further, while details regarding the approval process were subject to exclusion upon relevance grounds, see Mass. G. Evid. § 403 (2010), considered in context, the challenged testimony clearly demonstrated that the officers engaged in this verification only to determine whether the names and information Smith provided were fictitious. The unmistakable tenor of Geiger and Dillon's testimony about this “verification” was that Smith would not have been permitted to participate in controlled buys, handling drugs and money, without it.

Furthermore, admitting hearsay evidence of Smith's past relationship with the police does not make the Geiger and Dillon testimony improper. Compare Commonwealth v. LaVelle, 414 Mass. 146, 155-156, 605 N.E.2d 852 (1993) (rejecting claim judge erred by admitting hearsay evidence bolstering informant's credibility, as hearsay statements in detective's testimony on informant's initial contacts with police, knowledge of drug trafficking activity, motives for aiding police, participation in undercover operation, and statements concerning defendant were admissible as relevant to state of police knowledge that led them to use informant and pursue defendant as possible drug trafficker). “While the testimony of [Geiger and Dillon] as to statements made by [Smith] is clearly hearsay, ‘[t]he hearsay rule forbids only the testimonial use of reported statements. It does not preclude the use of such statements for other valid purposes such as ... the state of police knowledge which impelled the approach to the defendant.’ Commonwealth v. Miller, 361 Mass. 644, 659, 282 N.E.2d 394 (1972). See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270, 431 N.E.2d 880 (1982) (prosecutor entitled to present full picture of events surrounding the incident). After reviewing [Geiger's and Dillon's] testimony, we affirm the trial judge's determination that, to the extent the testimony included hearsay statements, the information was relevant to the state of police knowledge which led them to use [Smith] as an informant and to seek out [the defendant] as a possible drug trafficker.” LaVelle, supra.

Prior bad act testimony. The defendant contends that the judge impermissibly allowed Smith to testify that before he became an informant he had purchased drugs from the defendant. The judge gave a limiting instruction contemporaneous with this testimony and included the same instruction in his final jury instructions. As the defendant preserved...