Commonwealth v. Vincent Mitchell.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-650

COMMONWEALTH

vs.

VINCENT MITCHELL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant was found guilty

of possession of cocaine with intent to distribute and

possession of heroin with intent to distribute. 1 On appeal, the

defendant argues that the motion judge erred by denying his

motion to suppress, that there was insufficient evidence to

1 These were lesser included offenses of possessing,
distributing, or intent to distribute 100 to 200 grams of
cocaine, in violation of G. L. c. 94C, § 32E (b) (3), and
manufacturing, possessing, distributing, or intent to distribute
thirty-six to 100 grams of heroin, in violation of G. L. c. 94C,
§ 32E (c) (2). During the trial, the Commonwealth dismissed one
count of possession of a firearm without complying with G. L.
c. 140, § 129C (possession of a firearm without an FID card), in
violation of G. L. c. 269, § 10 (h), and one count of failure to
secure a firearm. The defendant was found not guilty of four
counts of possession of a firearm without an FID card, one count
of possession of ammunition without complying with G. L. c. 140,
§ 129C, in violation of G. L. c. 269, § 10 (h); and four counts
of failure to secure a firearm, in violation of G. L. c. 140,
§ 131L.
convict him, that a fingerprint card admitted at trial was

impermissible hearsay, and that the trial judge erred in denying

his motion to strike testimony of a substitute chemist. We

affirm.

Discussion. 1. Motion to suppress. a. Background. 2 In a

search of 9 Falulah Street, Fitchburg (apartment), on September

9, 2016, law enforcement officers found heroin, "crack" cocaine,

paraphernalia for packaging narcotics, paperwork that bore the

name of the defendant or one of his codefendants, James Jones,

and numerous guns. The warrant authorizing the search listed

"documents pertaining to the occupancy of James Jones." The

warrant itself did not list documents pertaining to the

occupancy of the defendant. However, the affidavit in support

of the search warrant did include the "documents showing the

occupants of 9 Falulah Street" and identified the defendant as a

resident of the apartment. The defendant moved to suppress

items seized during the search, including documents establishing

his residency. 3

2 "We summarize the facts as found by the motion judge . . .
supplemented by evidence in the record that is uncontroverted
and that was implicitly credited by the judge" (quotation and
citation omitted). Commonwealth v. Jones, 100 Mass. App. Ct.
600, 601-602 (2022).
3 One item seized was a television displaying the name "Vincent"

on the screen. Given that names might appear on gaming systems,
sports equipment, pet name tags, and more, "documents" may be
unnecessarily limiting.

2
A hearing was held at which Trooper Ryan Dolan testified

and one exhibit was admitted. The parties agree that the

exhibit included the search warrant, the return on the search

warrant, the application for a search warrant, and an affidavit

of Dolan in support of the application. Dolan testified that

the affidavit in support of the search warrant was attached.

After a hearing, the motion judge agreed that the seizure of the

papers inferentially showing the defendant's occupancy at the

apartment exceeded the scope of the warrant. However, the

motion judge found that because "the affidavit accompanied the

warrant," if the defendant had been present, "he would have

known that the police were searching for his papers and other

'records' used for the distribution of narcotics." Thus, the

motion judge denied the defendant's motion to suppress such

paperwork.

b. Whether the search exceeded the scope of the warrant.

To the extent that the defendant's brief could be read to argue

there was no evidence the warrant itself was present at the time

of the search, "the defendant has waived this issue because it

was not raised in his motion to suppress, see Mass. R. Crim. P.

13 (a) (2), as appearing in 442 Mass. 1516 (2004), or at the

hearing on the defendant's motion to suppress." Commonwealth v.

Santos, 95 Mass. App. Ct. 791, 794 (2019). The only issue

properly before us is whether the judge's determination that the

3
affidavit was attached to the warrant and present during the

search was clearly erroneous.

For a search warrant to be valid under the Fourth Amendment

to the United States Constitution and art. 14 of the

Massachusetts Declaration of Rights, as well as G. L. c. 276,

§ 2, it must be supported by a showing of probable cause,

supported by oath or affirmation, and particularly describe the

property to be searched or seized. See Commonwealth v. Valerio,

449 Mass. 562, 566 (2007). While the typical remedy of a

warrant's failure to comply with the particularity requirement

is suppression, that is not always the case. Id. at 567. An

affidavit that is incorporated by reference to the warrant, and

physically attached to the warrant and present when the search

is executed "cures the particularity deficiency in the warrant

and, essentially, validates the warrant." Id. at 567-568.

"In reviewing a decision on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error but

conduct an independent review of [the] ultimate findings and

conclusions of law" (quotations and citation omitted).

Commonwealth v. Ramos, 470 Mass. 740, 742 (2015). "A finding is

clearly erroneous only when, although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

4
committed" (citation omitted). Commonwealth v. Carrasquillo,

489 Mass. 107, 117 (2022).

On this record, we cannot conclude that the motion judge's

finding that the affidavit was attached to the warrant and

present at the time of the search was clearly erroneous. The

motion judge credited the testimony of Dolan, who testified that

he wrote the affidavit and submitted it with the application for

the warrant. At the hearing, the search warrant return,

application for search warrant, and affidavit were all entered

as a single exhibit. Dolan described the exhibit as the

application for the search warrant and stated that the affidavit

was attached. While the testimony could have been more clear,

we cannot say that we are left with the definite and firm

conviction that a mistake was made when the judge inferred that

the affidavit was present at the time of the search. See

Carrasquillo, 489 Mass. at 117. Accordingly, the motion judge

did not err in concluding that seizure of documents bearing the

defendant's name was in the scope of the search warrant and

accompanying affidavit. 4

4 Even if the affidavit had not been present at the search, the
documents would still be admissible as they were in plain view
while police were properly searching for documents pertaining to
the occupancy of Jones. "Under [the plain view] doctrine, if
police are lawfully in a position from which they view an
object, if its incriminating character is immediately apparent,
and if the officers have a lawful right of access to the object,
they may seize it without a warrant." Commonwealth v. D'Amour,

5
2. Sufficiency of the evidence. The defendant argues that

there was insufficient evidence to link him to any drug

distribution operation at the apartment. 5 The defendant was not

present during the search. Thus, the Commonwealth proceeded on

a theory of constructive possession, which "requires proof that

the defendant had 'knowledge coupled with the ability and

intention to exercise dominion and control.'" Commonwealth v.

Than, 442 Mass. 748, 751 (2004), quoting Commonwealth v.

Sespedes, 442 Mass. 95, 99 (2004). Knowledge of the contraband

may be proven by circumstantial evidence. Than, supra.

a. Standard of review. In reviewing a sufficiency

argument, we look at the evidence in the light most favorable to

the Commonwealth to determine whether any rational trier of fact

could have found the essential elements beyond a reasonable

doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

"[T]he evidence and the inferences permitted to be drawn

therefrom must be 'of sufficient force to bring minds of

ordinary intelligence and sagacity to the persuasion of (guilt)

beyond a reasonable doubt.'" Id. at 677, quoting Commonwealth

428 Mass. 725, 730–731 (1999), quoting Commonwealth v. Santana,
420 Mass. 205, 211 (1995). All that is required to justify the
presence of the police in the home is a valid search warrant,
which we undisputedly have here. D'Amour, supra.
5 The defendant contests only the issue of possession; he does

not claim insufficient evidence of intent to distribute cocaine
and heroin.

6
v. Cooper, 264 Mass. 368, 373 (1928). A finding of guilty may

be warranted "even though the inference of guilt from the facts

established is not inescapable or necessary." Commonwealth v.

Anselmo, 33 Mass. App. Ct. 602, 604 (1992), quoting Commonwealth

v. Gagnon, 408 Mass. 185, 200-201 (1990).

No one particular item must prove beyond a reasonable doubt

that the defendant was guilty. Commonwealth v. Kapaia, 490

Mass. 787, 792 (2022). Instead, "while the pieces of evidence

outlined infra might not individually 'be sufficient to sustain

a conviction, together they formed a "mosaic" of evidence such

that the [fact finder] could [reasonably] conclude, beyond a

reasonable doubt, that the defendant'" possessed the narcotics.

Id., quoting Commonwealth v. Jones, 477 Mass. 307, 317 (2017). 6

b. Facts. The judge heard evidence that before execution

of the search warrant, the State police conducted surveillance

of the apartment for approximately three weeks. Law enforcement

observed multiple people who appeared to be drug users coming to

the house, staying a "short amount of time," and leaving. The

police used an informant to conduct three controlled buys inside

6 The defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and at the close of all of the
evidence. Because the defendant did not introduce evidence, the
Commonwealth's case did not deteriorate and the question is
whether the Commonwealth introduced sufficient evidence "to
satisfy a rational trier of fact of each element of the crime
beyond a reasonable doubt" (citation omitted). Commonwealth v.
Amado, 387 Mass. 179, 186 (1982).

7
the apartment. During this surveillance, Dolan observed the

defendant and his two codefendants leave the apartment.

During the search of the apartment, in the first bedroom on

the left, described by an officer as the "operations room of

. . . the [drug] distribution business," the police found

surveillance monitors, a television displaying the defendant's

first name on the screen, drug packaging materials, cash,

heroin, and cocaine. In the closet of the bedroom, the police

found a safe bolted to the floor. The door to the safe, which

was ajar, contained more cocaine and heroin, two firearms and

ammunition, and cash. The door to this room had a deadbolt lock

on it. 7 At the time of the search, the other codefendant, Eddie

McCloy, was in this first bedroom.

Detective Lieutenant Kenneth Heffernan, the unit commander

of the State police crime laboratory, analyzed five latent

fingerprints he found on the safe, four on its interior, as well

as one on the exterior. He uploaded enhanced photographs of the

fingerprints to the Automated Fingerprint Identification System

(AFIS), the fingerprint repository run by the State police.

7 The first bedroom was the only room that contained narcotics.
In total, the police found 106 grams of cocaine and sixty-three
grams of heroin in the first bedroom. In a second bedroom, the
police found a needle, several corner baggies, and two cell
phones on the bed; in a third bedroom, the police found two
cellphones, codefendant Jones, who had $4,325 on him, and $1,923
in a small black medical bag; and in the kitchen, the police
found two kitchen scales and packaging baggies.

8
Heffernan retrieved the defendant's fingerprint record from AFIS

and compared those fingerprints to the fingerprints found on the

safe. He opined that the four of the fingerprints on or in the

safe were "an identification" to fingerprints on an AFIS

printout bearing the defendant's name. The final print was

inconclusive. Heffernan testified that he compared the prints

on the safe to codefendant Jones and excluded him as the source.

While the 2014 fingerprint card bore the defendant's name and a

unique identification number, it did not contain the defendant's

signature. Heffernan stated that he matched the fingerprints to

the identification number on the card, not the name, as

arrestees can occasionally provide false identification.

Heffernan also testified that it was not possible to determine

when a fingerprint was placed on an object.

Detective Sergeant Christopher Bellofatto of the Fitchburg

police department testified that he arrested a man in 2014 who

identified himself as the defendant, and that he took that man's

fingerprints and uploaded them into AFIS. Bellofatto was asked

to identify the person he arrested in 2014. He then identified

codefendant Jones, not the defendant. 8

8 The record does not establish why the Commonwealth did not
prove that the defendant's fingerprints at the time of his
arrest in this matter were "an identification" with the
fingerprints found on the safe.

9
Papers seized in the apartment bore the defendant's name.

In a drawer in a bureau in the first bedroom, police found a job

application with the defendant's name on it with an address on

Rollstone Street. Also in the first bedroom, the police also

found one rent receipt in the name of "Vincent Martel" dated

January 6, 2016, and four receipts in the name of "C. James." 9

Elsewhere in the apartment, the police found a telephone bill

addressed to the defendant at the apartment dated August 19,

2016, which overlapped with the beginning of the police

investigation of the apartment. Police also found a Comcast

collection notice addressed to the defendant at the Rollstone

apartment dated July 5, 2016.

c. Sufficiency of the evidence of possession. Viewed in

the light most favorable to the Commonwealth, there was

sufficient evidence to permit a rational trier of fact to

conclude that the defendant constructively possessed the cocaine

and heroin with the intent to distribute.

"A defendant's 'residential status at a premises is a

relevant inculpatory factor to be considered in determining

whether he can be regarded as being in constructive possession

of contraband found on the premises, since it indicates more

than mere presence.'" Commonwealth v. Clarke, 44 Mass. App. Ct.

9 No party provided the receipts in the name of C. James so we do
not know the dates of those receipts.

10
502, 505 (1998), quoting Commonwealth v. Handy, 30 Mass. App.

Ct. 776, 781 n.5 (1991). See Commonwealth v. Lee, 2 Mass. App.

Ct. 700, 704 (1974) (constructive possession of cocaine found in

apartment supported by evidence that male defendant was seen

coming and going from apartment and his personal papers were

found therein as well as men's clothing).

Here, in the first bedroom in the apartment, police found a

safe, which also contained narcotics, covered in clothes. That

safe had four of the defendant's fingerprints on the interior

and exterior. Police also found the television displaying the

defendant's first name and paperwork in his name located in a

bureau in the first bedroom.

Other paperwork found elsewhere in the apartment connected

the defendant to the apartment. This included a telephone bill

that overlapped with the police surveillance of the apartment

and a rent receipt bearing the defendant's first name. The

defendant was seen at the apartment during the three weeks of

police surveillance. While it is true that police found

paperwork addressed to the defendant at a different address,

that was a cancellation of a Comcast account that was older than

the telephone bill. The judge reasonably could have inferred

that the documents with the Rollstone address, which were dated

earlier in time, were the defendant's prior residence, and the

telephone bill, which was closer in time, showed his address at

11
the time the search warrant was executed. Given this mosaic of

evidence, the judge could reasonably conclude, beyond a

reasonable doubt, that the defendant was in possession of the

narcotics. Kapaia, 490 Mass. at 792.

The defendant's challenges to pieces of the mosaic fail

because he does not view the evidence in the light most

favorable to the Commonwealth. For example, the defendant

argues that the documents do nothing more than show "mere

(intermittent) presence." In the light most favorable to the

Commonwealth, however, the documents show that the defendant

resided in the apartment and in the first bedroom. The

defendant's argument that there was insufficient evidence that

the fingerprints from 2014 on the printout from AFIS belonged to

him fails for the same reason. Notwithstanding that Bellofatto

identified Jones as the arrestee six years earlier, the judge

was not required to credit that view of the evidence. The

Commonwealth is entitled to reasonable inferences and the judge

could infer that the person arrested and fingerprinted in 2014,

who gave as his name the defendant's name, was the defendant. 10

10The defendant challenges some of the fingerprint evidence.
"[W]e consider even improperly admitted evidence" in determining
questions of sufficiency. Commonwealth v. Uriah U., 100 Mass.
App. Ct. 281, 286-287 (2021). In any event, we conclude the
evidence was not admitted improperly. See section 3, infra.

12
The defendant also contends that the evidence did not

support a finding beyond a reasonable doubt that the defendant's

fingerprints were the ones inside the safe, and that it was

impossible to know when they were left on the safe. However, no

one particular item must prove beyond a reasonable doubt that

the defendant was guilty. Kapaia, 490 Mass. at 792. Instead,

the judge could have reasonably concluded that the fingerprints

belonged to the defendant and they can be part of the mosaic of

evidence demonstrating that the defendant constructively

possessed the narcotics. See Commonwealth v. Lao, 443 Mass.

770, 779 (2005) ("If, from the evidence, conflicting inferences

are possible, it is for the [fact finder] to determine where the

truth lies, for the weight and credibility of the evidence is

wholly within their province").

Finally, the defendant's reliance on Commonwealth v.

Humphries, 76 Mass. App. Ct. 702, 702-703 (2010), is unavailing.

There, a defendant's drug convictions were reversed because the

defendant was not present at the time of the seizure, and the

only evidence linking him to the apartment where the drugs were

found was an identification card and an envelope addressed to

him. In contrast to the case here, both documents in Humphries

had a different address than the place where the drugs were

found and no other personal effects of the defendant were found

in the vacant bedroom. Id. at 703.

13
Accordingly, there was no error in denying the defendant's

motion for a required finding of not guilty.

3. Hearsay. The defendant argues that the trial judge

erred in admitting into evidence a fingerprint card for the

defendant from 2014 that had been uploaded into AFIS. He argues

that the fingerprint card was hearsay and that the Commonwealth

did not lay sufficient foundation for it to be admitted as a

business record. We disagree.

a. Standard of review. Where, as here, there was no

objection, our review is limited to determining whether an error

occurred and, if so, whether it created a substantial risk of a

miscarriage of justice. Commonwealth v. Aviles, 461 Mass. 60,

72 (2011). "A substantial risk of a miscarriage of justice

exists when we have 'a serious doubt whether the result of the

trial might have been different had the error not been made.'"

Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting

Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

b. Business record. "General Laws c. 233, § 78, as

amended by St. 1954, c. 87, § 1, provides in part that a record

made in the regular course of business 'shall not be

inadmissible . . . because it is hearsay.'" Commonwealth v.

Driscoll, 91 Mass. App. Ct. 474, 476-477 (2017). 11 A judge is

11"[A] document is admissible as a business record if the judge
finds that it was (1) made in good faith; (2) made in the

14
not required to make preliminary factual determinations

regarding foundation, as the decision to admit the record

implies those requisite findings. Commonwealth v. Andre, 484

Mass. 403, 410 n.13 (2020). "[I]t is presumed that the judge as

trier of fact applies correct legal principles." Commonwealth

v. Colon, 33 Mass. App. Ct. 304, 308 (1992).

Fingerprint cards can be admissible as a business record.

Commonwealth v. Fulgiam, 477 Mass. 20, 40-41 (2017). AFIS

printouts are generally "reliable" "based on the officers' duty

to ensure the [AFIS] cards are created with accurate

information, and the arrestees' legal obligation to provide

accurate information." Id. at 41. Although it is best practice

to verify that the person being fingerprinted is who he claims

to be, "the presence or absence of independent verification

bears on the weight of the record rather than its admissibility

under the business records exception." Id. at 41-42. 12

Here, a proper foundation for admission was laid. Based on

the testimony of Bellofatto about the process of fingerprinting

an arrestee and how those fingerprints are uploaded into AFIS,

regular course of business; (3) made before the action began;
and (4) the regular course of business to make the record at or
about the time of the transaction or occurrences recorded."
Driscoll, 91 Mass. App. Ct. at 479, quoting Beal Bank, SSB v.
Eurich, 444 Mass. 813, 815 (2005).
12 While the AFIS printout is missing the defendant's signature,

that also goes to the weight of the evidence. Fulgiam, 477
Mass. at 42.

15
and the testimony of Heffernan about the process of retrieving

the AFIS printout and comparing the fingerprints on the AFIS

card to the fingerprints on the safe, the trial judge could have

reasonably concluded that the AFIS printout was made in good

faith, and in the regular course of business. Similarly, the

judge could have found that it was the regular course of

business to make the record at or about the time of the

transaction or occurrences recorded. Finally, the record was

made before the action began, as the fingerprint images were

added into AFIS two years prior to the defendant's arrest. As a

result, the judge did not abuse his discretion in admitting the

2014 fingerprint record. See Andre, 484 Mass. at 411. Given

that there was no error, there was no substantial risk of a

miscarriage of justice. Randolph, 438 Mass. at 303.

4. Chemist's testimony. At trial, a substitute chemist

testified in place of the testing chemist and identified the

substances found in the apartment as illegal narcotics. The

defendant objected to the substitute chemist's testimony,

claiming that while he was provided the certificate of analysis,

he had not received the underlying data that supported the

expert's opinion, which the Commonwealth was required to produce

pursuant to Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444

Mass. 1501 (2005). The judge initially sustained the objection,

requiring the Commonwealth to lay further foundation. After

16
doing so, the Commonwealth renewed its questioning regarding the

chemist's opinion, and the defendant once again objected,

claiming there was a written report that he believed to be

mandatory discovery. The judge overruled the objection.

On appeal, the defendant argues that he was denied a

meaningful opportunity to cross-examine the substitute chemist's

opinion on the chemical composition of the narcotics because the

reports from which the drug certificates were produced were not

provided during mandatory discovery. "[D]iscovery matters are

committed to the sound discretion of the trial judge" (citation

omitted). Commonwealth v. Gelfgatt, 468 Mass. 512, 519 n.11

(2014). "We will uphold discovery rulings unless the appellant

can demonstrate an abuse of discretion that resulted in

prejudicial error" (citation omitted). Id. 13

Rule 14 (a) (1) (A) (vi) of the Massachusetts Rules of

Criminal Procedure, as amended, 444 Mass. 1501 (2005), requires

mandatory discovery for a defendant of "[i]ntended expert

13The defendant contends that his constitutional right to cross-
examine the witness was denied, which is a constitutional error
that must be reviewed for harmless error. However, the
defendant had ample opportunity to cross-examine the substitute
chemist, who was cross-examined on two separate days of trial.
Because the judge did not limit the defendant's opportunity to
cross-examine the substitute chemist, there was no
constitutional error. See Commonwealth v. Williams, 456 Mass.
857, 873 (2010) ("a judge may limit the scope of cross-
examination as long as he or she does not completely bar inquiry
into a relevant subject").

17
opinion evidence . . . includ[ing] the identity, current

curriculum vitae, and list of publications of each intended

expert witness, and all reports prepared by the expert that

pertain to the case." See Commonwealth v. Crapps, 84 Mass. App.

Ct. 442, 447 n.7 (2013). "A certificate of chemical analysis

falls within the ambit of the Commonwealth's rule 14 discovery

obligations." Commonwealth v. Butler, 87 Mass. App. Ct. 183,

186 (2015).

The testimony at trial did not show that there were any

additional reports that the Commonwealth failed to disclose.

The defendant admitted that he received the required certificate

of analysis. The Commonwealth contends, and the chemist's

testimony reflects, that she was using the terms "report" and

"certificate" interchangeably. And the defendant is not arguing

that the chemist failed to turn over the underlying graphs or

reports, but instead a report that would have been subject to

mandatory disclosure, such as the certificate of analysis.

Because there is no evidence of a report that was not produced,

we discern no error. See Commonwealth v. Sanders, 451 Mass.

290, 296 (2008) (evidence was insufficient to support

defendant's claim that Commonwealth violated discovery

18
obligation when "there [was] no evidence in the record that such

a report existed").

Judgments affirmed.

By the Court (Wolohojian,
Henry & Hershfang, JJ. 14),

Clerk

Entered: August 14, 2023.

14 The panelists are listed in order of seniority.

19