42 Mass. App. Ct. 518 | Mass. App. Ct. | 1997
In jury-waived proceedings in the Superior Court, the defendant was convicted of possession of cocaine with the intent to distribute as a second or subsequent offense. See G. L. c. 94C, § 32A(d). On appeal, he alleges that the Commonwealth’s evidence was legally insufficient and that, in any event, he was improperly convicted under the second or subsequent offender portion of § 32A(d). We affirm.
We briefly recite the pertinent facts, presenting them in the light most favorable to the Commonwealth. See Commonwealth v. Hilton, 398 Mass. 63, 64-65 (1986). On June 14, 1994, from their unmarked police car, Officers Delaney and
The officers immediately closed in on the maroon vehicle. As they approached, they saw the passenger quickly try to swallow something from a Garcia y Vega cigar tube. When asked to leave the car, he spat out what appeared to Officer Delaney to be a piece of crack cocaine. On analysis, the item turned out to be a nugget of crack cocaine. The cigar tube contained five additional rocks of crack cocaine, each the size of a pea. The nuggets were packaged in separate plastic bags.
Both the defendant and the passenger were arrested. The defendant had $90 on his person and a beeper on his belt.
Officer Delaney qualified as an expert on the practices of illegal drug merchants — he had been in the narcotics division of the police department for twelve years. He testified that the packets of rock cocaine were packaged for sale, that each had a street value of twenty dollars, that Garcia y Vega cigar tubes are commonly used to carry drugs by people involved in street level sales, and that in ninety-five percent of the (drug) cases in which he was involved people used a beeper — this was the commonplace method for arranging to purchase narcotics. Officer Meleady repeated in large part the facts as testified to by Officer Delaney. He also gave his opinion as to the encounter between the defendant and the male pedestrian — “I felt it very well could possibly be a narcotics transaction.”
1. Sufficiency of evidence. The defendant claims that there
2. Sufficiency of evidence for application of G. L. c. 94C, § 32A(d). The defendant was also convicted of trafficking as a second or subsequent offense under the provisions of G. L. c. 94C, § 32A(d). A requisite element of that offense is proof of one or more prior convictions. While the defendant does not seriously dispute that he was previously convicted of a qualifying offense (but see note 4 infra), he contends that the Commonwealth failed to prove by competent evidence that he had been represented by counsel during the prior proceed
The defendant is correct that the Commonwealth must establish either that the defendant was represented by counsel at the earlier trial, or else that he properly waived that right. There are, however, no particular requirements as to the form the evidence of such prior representation or waiver must take. See Commonwealth v. Deeran, 364 Mass. 193, 198 (1973) (no “constitutional requirements that waiver of counsel be proved in any particular way”). Cf. Commonwealth v. Quinones, 414 Mass. 423, 432 n.7 (1993).
Our cases have permitted proof of such representation or waiver to take a variety of forms. An entry on the complaint by the trial judge indicating that he found “this defendant not indigent” and “ [defendant did not want counsel” was deemed sufficient to prove waiver in Deeran for purposes of using the prior conviction to impeach the witness. 364 Mass, at 197. Likewise, in Commonwealth v. Delorey, 369 Mass. 323, 329-330 (1975), the court held that a finding by the trial judge that the defendant was able to pay for counsel was sufficient to find waiver. “By reason of that finding the defendant was not entitled to have counsel assigned to represent him at public expense,” and, having had a reasonable time to obtain counsel at his own expense, the legal effect of what occurred was that the defendant waived the right to be represented by counsel. In Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972), the court concluded that an unattributed reference to the name of the defendant’s attorney at his prior trial on the face of the complaint was sufficient to establish representation.
In light of these cases, the proof that the present defendant had been represented by counsel at his prior trial was sufficient to support the defendant’s conviction of a subsequent offense. The Commonwealth called a representative of the probation office who testified that his probation records indicated that on June 19, 1993, the defendant had pleaded guilty in the Superior Court to distribution of cocaine, G. L. c. 94C, § 32E, and that the defendant had been represented during those proceedings by “Attorney Klyman.”
The defendant argues that the probation officer’s testimony
Moreover, had the defendant objected on hearsay grounds, the probation office records from which the probation officer testified and on which the name of the defendant’s counsel was listed would undoubtedly have been admissible under the business records exception to the hearsay proscription. See G. L. c. 233, § 78 (creating business records exception for both criminal and civil cases); Furtado v. Furtado, 380 Mass. 137, 149 (1980) (probation office records admitted under rubric of business records exception).
Judgment affirmed.
The defendant later gave this as his address.
Officer Delaney was improperly permitted to testify over objection as to his opinion of the encounter between the defendant and the male pedestrian — “A drug deal just took place in front of 4 Quebec Street.” An expert may not offer an opinion as to the defendant’s innocence or guilt. Commonwealth v. Woods, 419 Mass. 366, 375 (1995) (“testimony that the de
At trial in the present case the defendant also was represented by Mr. Andrew Klyman.
In a cursory argument, the defendant also appears to allege that proof of the prior conviction was inadequate due to the confusion of dates on some of the Superior Court records and the failure to include certain docket numbers on some of the forms. However, the defendant’s argument is wholly unsupported by any citations to legal authority and does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Silva, 401 Mass. 318, 329 n.12 (1987).