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Commonwealth v. Rosario

Appeals Court of Massachusetts, Essex

October 26, 2016

COMMONWEALTH
v.
CARLOS ROSARIO (and a companion case [1]).

          Heard: May 17, 2016.

         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.

          Present: Cypher, Blake, & Henry, JJ.

          CYPHER, J.

         In this consolidated appeal, the defendants, Carlos Rosario and Lylibeth Rosario, appeal from their 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, Carlos[2] 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 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 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 ...


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