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15-P-752                                              Appeals Court
15-P-753

   COMMONWEALTH     vs.    CARLOS ROSARIO (and a companion case1).


                       Nos. 15-P-752 & 15-P-753.

           Essex.         May 17, 2016. - October 26, 2016.

               Present:     Cypher, Blake, & Henry, JJ.


Controlled Substances. Practice, Criminal, Identification of
     defendant in courtroom, Required finding, Disclosure of
     evidence. Constitutional Law, Identification. Due Process
     of Law, Identification. Evidence, Identification, Chain of
     custody, Disclosure of evidence, Cross-examination.
     "School Zone" Statute.



     Complaints received and sworn to in the Lawrence Division
of the District Court Department on May 16, 2014.

    The cases were tried before Mark A. Sullivan, J.


     Daniel K. Sherwood for Carlos Rosario.
     Stephen E. Meltzer for Lylibeth Rosario.
     Quentin Weld, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.      In this consolidated appeal, the defendants,

Carlos Rosario and Lylibeth Rosario, appeal from their

    1
        Commonwealth vs. Lylibeth Rosario.
                                                                    2


convictions for distribution of heroin in violation of G. L.

c. 94C, § 32(a), and a drug violation near a school or park in

violation of G. L. c. 94C, § 32J.    In addition, Carlos2 was

charged with possession of heroin in violation of G. L. c. 94C,

§ 34.    The defendants filed a motion in limine to exclude any

in-court identification of the defendants, which was denied.

They argue that the trial judge committed error by admitting the

confidential informant's in-court identification in the absence

of any pretrial identification procedure.    They also argue that

the chain of custody was inadequate to connect the drug evidence

presented at trial to this case and, therefore, the evidence was

insufficient to prove the drug charges beyond a reasonable

doubt.    Lylibeth also argues that she was not given pretrial

notice of a map offered by the Commonwealth and admitted in

evidence that supported the school zone charge.    We affirm both

defendants' convictions.

     1.   Background.   On May 15, 2014, the Lawrence police

department's drug enforcement unit (unit) was conducting

supervised controlled buys with the assistance of a paid

confidential informant named William Demers.    Detective Carmen

Purpora searched Demers and the female who accompanied him for

money and contraband before each controlled buy and then gave


     2
       We refer to the defendants by their first names to avoid
confusion.
                                                                     3


Demers marked currency to complete the drug transactions.

Detective Purpora and Demers agreed that Demers would take off

his hat and place it by his side to signal that a drug

transaction had taken place.

    That morning, Demers and the unit completed two controlled

buys between 9:00 A.M. and 12:00 P.M.    At around 1:00 P.M.,

Demers and his female companion drove to the corner of Water and

Melrose Streets in Lawrence to conduct another controlled buy.

Demers, who was under surveillance by the unit, exited his car

and stood beside it for about ten minutes before he was

approached by Carlos.    Carlos initiated the drug transaction and

asked Demers to follow him to a house across the street at 129

Water Street.   Detective Purpora and Demers saw a woman standing

outside the house who was later identified as Lylibeth, Carlos's

mother.   Carlos, Lylibeth, and Demers walked inside the house to

the kitchen where Carlos asked Lylibeth to give Demers the

drugs.    Lylibeth left the room and returned a minute later with

a scale and a bag of heroin.    Demers gave twenty dollars to

Carlos for the bag of heroin then left.    Demers was in the house

for approximately three to four minutes.    After leaving the

house, Demers signaled to the unit that a drug transaction had

occurred.

    Following the controlled buy, Demers drove to a prearranged

location where Demers, the woman accompanying him, and his
                                                                    4


vehicle were all searched.   At that time, Demers handed

Detective Purpora a plastic bag containing a brown substance

that the detective believed was heroin.   Detective Purpora

radioed other officers and told them to place the defendants in

custody.   When Carlos was placed in custody, the police found

two additional plastic bags containing brown powder in his

possession.

     Later that day, Detective Purpora brought the three plastic

bags of brown powder to the Lawrence police department.    There,

he logged the narcotics on an evidence sheet, placed the

narcotics into a heat sealed bag, put the sealed bag into a

yellow manila envelope, and placed that envelope into an

evidence locker.   At trial, Detective Purpora testified that the

manila envelope was labeled with the log number referring to the

case, 14-003794, the names of both defendants, and his name.

Log number 14-003794 also corresponds to a detailed police

report of the controlled buy.

     Sarah Clark, a scientist in the Massachusetts State police

forensic services group, testified that on August 5, 2014, she

analyzed the samples from the evidence seized at the controlled

buy and confirmed they contained heroin and cocaine.3



     3
       She also testified in detail regarding the lab's intake
procedure and the use of unique numbers to help identify the
cases that were in the drug vault.
                                                                      5


    Lawrence city engineer Theodoro Rosario testified that the

distance between the house at 129 Water Street and the Boys and

Girls Club at 136 Water Street is fifty feet, indicating that it

was within a school zone.

    2.     Discussion.   a.   In-court identification.   The

defendants' pretrial motion in limine to exclude their in-court

identification by Demers was denied.      They appeal, arguing that

the new standard for in-court identification established in

Commonwealth v. Crayton, 470 Mass. 228, 241 (2014), should be

applied:   "Where an eyewitness has not participated before trial

in an identification procedure, we shall treat the in-court

identification as an in-court show up, and shall admit it in

evidence only where there is 'good reason' for its admission."

    The Supreme Judicial Court announced a prospective rule in

Crayton to be applied in trials that commence after the issuance

of the opinion on December 17, 2014.      See id. at 241-242.

Because the defendants' trial took place before the issuance of

Crayton, the prospective rule does not apply and, instead, we

evaluate the alleged errors under the law at the time of the

trial.   See Commonwealth v. Bastaldo, 472 Mass. 16, 31 (2015).

    "We recognize that a degree of suggestiveness inheres in

any identification of a suspect who is isolated in a court room.

Nevertheless, such isolation does not, in itself, render the
                                                                     6


identification impermissibly suggestive."    Commonwealth v.

Napolitano, 378 Mass. 599, 604 (1979), abrogated by Crayton.

Prior to Crayton, long standing case law held that an in-court

identification was excluded only where "it is tainted by an

out-of-court confrontation . . . that is 'so impermissibly

suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.'"    Commonwealth v. Carr, 464

Mass. 855, 877 (2013), quoting from Commonwealth v. Choeurn, 446

Mass. 510, 520 (2006).    See Simmons v. United States, 390 U.S.

377, 384, (1968).    "An in-court identification was admissible in

the absence of any prior out-of-court confrontation."     Bastaldo,

supra.    Here, the first time Demers made a formal identification

of the defendant was in court during his testimony.     Demers'

only out-of-court encounter with the defendants took place

during the controlled buy.    Demers met Carlos on the street

outside of his home in broad daylight then proceeded to his

apartment where he spent three to four minutes with Carlos and

Lylibeth while completing the drug transaction.    Demers spoke

with both defendants and had an opportunity to view them from

both inside and outside the house for an extended period of

time.    There was nothing suggestive about the controlled buy

with the defendants that would create a substantial likelihood

of irreparable misidentification in court.
                                                                     7


    The defendants also argue that even if Crayton is not

applied, "[c]ommon law principles of fairness dictate that an

unreliable identification arising from . . . especially

suggestive circumstances . . . should not be admitted."

Commonwealth v. Jones, 423 Mass. 99, 109 (1996).    As discussed

above, there was nothing unreliable about Demers' opportunity to

observe the defendants.

    Other arguments regarding the in-court identifications

relied on by the defendants, "but not discussed in this opinion,

have not been overlooked.    We find nothing in them that requires

discussion."   Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

There was no error in the admission of Demers' in-court

identification.

    b.   Sufficiency of evidence.    The defendants moved for a

required finding of not guilty at the close of all of the

evidence.   Additionally, Carlos filed a posttrial motion for

required findings.   In reviewing the denial of a motion for a

required finding, we examine the relevant evidence in the light

most favorable to the Commonwealth and ask whether "any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt."    Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).

    i.   Chain of custody.    The defendants argue that there was

an insufficient chain of custody to connect the substance seized
                                                                     8


from the controlled buy to the heroin presented at trial.     In

reviewing the sufficiency of the evidence, we must determine

whether the evidence presented supports a finding that the

defendants knowingly or intentionally distributed heroin and

whether Carlos knowingly possessed heroin.

    Detective Purpora testified that he conducted two other

controlled buys on May 15, 2014, culminating with the one in

question.   He stated that the controlled buy from the defendants

took place at 129 Water Street at around 1:00 P.M.    However, the

evidence submission form, which was completed to accompany the

contraband to the laboratory, referred to the general time and

area where the controlled buys were conducted as 12:00 P.M. and

"50 Broadway Street."   The defendants view this as a fatal

defect.   Detective Purpora, however, had distinguished the three

bags seized from the defendants from the contraband seized at

the other controlled buys by writing the defendants' names on

the envelope containing the heroin.    Clark analyzed the contents

of the envelope with the defendants' names on it and confirmed

that the plastic bags seized were in fact heroin.    An item of

real evidence must be authenticated or identified as the thing

the proponent represents it to be.    See Commonwealth v. LaCorte,

373 Mass. 700, 704, (1977).   "If the object is one the witness

can particularly identify, it will be sufficient, see

Commonwealth v. Andrews, 403 Mass. 441, 462 (1988), if not, it
                                                                    9


becomes necessary for the witness to have placed an identifying

mark or label thereon or to otherwise create a 'chain of

custody' that will help authenticate the item."     Commonwealth v.

Herring, 66 Mass. App. Ct. 360, 365 (2006).     Detective Purpora

testified about where and how he seized the heroin.     He also

testified about the retention of the heroin and the delivery of

it to the Massachusetts State police forensic services group.

Finally, Clark testified as to its identity and quantity.     The

evidence is sufficient to permit a finder of fact to conclude

that the evidence seized was in fact collected from the

defendants during the controlled buy, that they knowingly

distributed the heroin, and that Carlos knowingly possessed it.

    "[A]lleged defects in the chain of custody usually go to

the weight of the evidence and not its admissibility."

Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992).

The judge allowed the defendant to suggest to the jury in his

opening statement, in cross-examinations of multiple witnesses,

and in his closing argument that the alleged defect in the chain

of custody should result in an acquittal.     This testimony was

sufficient to permit a finder of fact to conclude that the

defendants committed the charged offenses.

    c.   School zone violation.   Finally, Lylibeth argues that

the judge erred by allowing the Commonwealth to admit a map and

expert testimony about the map because the Commonwealth did not
                                                                     10


provide notice of its intent to do so.     The defendant preserved

the issue for appeal with a timely objection.     Therefore we

review the error, if any, to determine if it prejudiced

Lylibeth.     See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

    The Commonwealth did not provide the defendants with

pretrial notice of the map that was admitted in evidence through

the city engineer's testimony.     However, the defense had the

opportunity to extensively cross-examine the engineer about the

map certification process as well as the reliability of the map.

"Where a defendant is able to cross-examine a witness

extensively, prejudice is 'effectively' removed."     Commonwealth

v. Molina, 454 Mass. 232, 236-237 (2009).     Additionally, it is

unlikely the defendant could show prejudice in light of the fact

that she was on notice from the time of her indictment that the

Commonwealth intended to prosecute the school zone violation.

"There must be a demonstration of how the information would have

aided the defendant 'in preparing and presenting' [her] case."

Id. at 236, quoting from Commonwealth v. Stote, 433 Mass. 19, 25

(2000).     In measuring prejudice to a defendant when the

prosecution has delayed its disclosure of evidence prior to

trial, "it is the consequences of the delay that matter, not the

likely impact of the nondisclosed evidence."     Stote, supra at

23, quoting from Commonwealth v. Wilson, 381 Mass. 90, 114

(1980).     Furthermore, the Commonwealth outlined the anticipated
                                                                11


substance and basis of the engineer's testimony in their opening

statement and Lylibeth did not object.   We conclude there was no

error in the admission of the map and related testimony, but if

there was, it was not unfairly prejudicial.

                                   Judgments affirmed.
