41 Mass. App. Ct. 14 | Mass. App. Ct. | 1996
Lowell police, having first obtained search warrants for two apartments in a house, one (first-floor) thought to be the locus of retail sales of crack cocaine, the other (third-floor) to be the stash apartment, preceded the search
Four Hispanic men were found in the first-floor apartment. The hands of two of these men, one of whom was the defendant, glowed distinctly green under the blue ultraviolet light, indicating that they had handled the marked bill. The defendant had $304 on his person. The other had “a large sum of money” including the marked bill. In the third-floor apartment were found 239 “pieces” of crack cocaine, packaged identically to the “piece” sold to the undercover officers, and of identical purity. A photograph of one of the four first-floor occupants was found in the third-floor apartment. The two apartments were connected by an exterior staircase, and prior to the search the officers had observed three instances of a Hispanic male leaving the first-floor apartment, ascending by the exterior stairs to the third-floor apartment, then returning moments later to the first-floor apartment.
Essentially the same factors govern the defendant’s two principal contentions: that there was no evidence of his participation in a joint venture to sell crack cocaine, and that the judge erred in admitting in evidence the 239 bags from the third-floor apartment. But the connection between the two apartments was amply demonstrated, both before the raid, by the observed traffic between the first- and third-floor apartments, and after, by the photograph and the crack cocaine in the upper apartment identical in packaging and purity to the “piece” sold from the first-floor apartment. See Commonwealth v. Pratt, 407 Mass. 647, 652 (1990); Commonwealth v. James, 30 Mass. App. Ct. 490, 495-497 (1991); Commonwealth v. Rivera, 40 Mass. App. Ct. 308, 312 (1996). Moreover, the evidence concerning the first-floor apartment: that it was heavily barricaded, that it was occupied only by four males, and that it was the locus for at least one sale of crack cocaine, through a hole in the door, no questions asked, together suggested that it was a base for retail sales of crack cocaine (compare Commonwealth v. Arias, 29 Mass. App. Ct.
The other issues argued are similarly without merit. The questions raised by the defendant about the custody of the bag of crack cocaine purchased in the controlled buy went to the weight of that evidence rather than to its admissibility. See Commonwealth v. White, 353 Mass. 409, 419-420 (1967), cert, denied, 391 U.S. 968 (1968); Commonwealth v. Viriya-hiranpaiboon, 412 Mass. 224, 230 (1992); Commonwealth v. Diaz, 15 Mass. App. Ct. 469, 473 (1983). There was no need to precede Sergeant Taylor’s testimony about the fluorescent powder by expert opinion testimony to lay a foundation under the principles of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The jury did not need to be educated on what makes such powder fluoresce, nor did the judge need to pass on the acceptance in the scientific community of the principles underlying “the ultraviolet tracing system.”
Judgment affirmed.
The validity of the search is not challenged in this appeal.
The defendant’s reliance on Giannelli & Imwinkelreid, Scientific and Expert Evidence at 473-474 and 478 (2d. ed. 1981), is misplaced, because the discussion there concerning ultraviolet spectrophotometry, a technique used to identify drugs, has nothing to do with the use of fluorescent powder for tracing purposes. The latter is commonly admitted in evidence without expert opinion. See Dibble v. State, 347 So. 2d 1096, 1097 (Fla. Dist. Ct. App. 1977); Rusher v. State, 270 N.E.2d 748, 749 (Ind. 1971); State v. Washington, 533 So. 2d 392, 393 (La. Ct. App. 1988); Maumee v. Geiger, 344 N.E.2d 133, 134 (Ohio 1976); Jackson v. State, 265 S.W.2d 829, 830 (Tex. Crim. App. 1954). See also Giannelli & Imwinkelreid, supra at 1119-1120, and cases cited therein.