Commonwealth v. Luis Guillermo.

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

24-P-1278

COMMONWEALTH

vs.

LUIS GUILLERMO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, Luis

Guillermo (defendant), was convicted of trafficking in heroin

(100-200 grams) in violation of G. L. c. 94C, § 32E (c), and

distribution of heroin (a Class A substance) in violation of

G. L. c. 94C, § 32 (a). On appeal, the defendant argues

(1) that his trial counsel was ineffective for admitting and

failing to suppress his statement to police upon arrest;

(2) that the trial judge erroneously admitted an AFIS print card

in evidence; and (3) that the trial judge erroneously allowed a

police officer to interpret notes written in Spanish while

testifying. We affirm.
Background. The following evidence was introduced at

trial.

1. Surveillance and arrest. Worcester police officers

were conducting surveillance in the area of 106 Sterling Street

on October 23, 2014. They focused on a Nissan Maxima parked

outside the house at 106 Sterling Street. The officers saw a

man, later identified as Francisco Batista, leave the house and

enter the driver's seat of the Maxima. Batista drove the Maxima

to Wilson Street as the officers followed. The Maxima stopped

on Wilson Street, where an unidentified man walked out of a

house and entered the front passenger's seat. Approximately ten

seconds later, the man got out of the Maxima and returned to the

house. The Maxima drove away, and the officers followed until

they lost sight of the Maxima and returned to 106 Sterling

Street. Eventually, the Maxima also returned to 106 Sterling

Street. Another man, later identified as the defendant, then

walked out of the house and entered the front passenger's seat

of the Maxima. The officers followed the Maxima to Raymond

Street, where it parked behind a black pickup truck. The

defendant got out of the Maxima and entered the passenger's seat

of the truck. Both vehicles then drove to Esther Street, where

they both parked approximately 30 seconds later. The defendant

got out of the truck, got back in the passenger's seat of the

Maxima, and then both vehicles drove away. One officer

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characterized this brief drive as a "meaningless ride," and the

Commonwealth introduced expert testimony that "meaningless

rides" are typical of drug transactions.

Thereafter, the officers then chose to discontinue

surveillance of the Maxima. Meanwhile, other officers stopped

the truck and discovered the driver attempting to swallow a

plastic baggie containing approximately ten small bags of

heroin. These officers reported their observation to the

officers who had been following the Maxima, who then returned to

106 Sterling Street.

Ten to twenty minutes later, the Maxima drove past 106

Sterling Street, and the officers followed it to Diamond Street.

At this point a different pickup truck began following the

Maxima, and the officers decided to stop the Maxima. The

officers approached and ordered the occupants out of the car.

Mr. Batista was driving, and the defendant was in the front

passenger's seat. They were placed under arrest for

distribution of heroin. The officers did not read the defendant

his Miranda rights upon arrest, but did ask him "a couple brief

questions" including whether he had just come from 106 Sterling

Street, which the defendant denied.

The officers pat frisked the defendant. They discovered

approximately $400 in his pocket and about $900 in his wallet.

They also recovered approximately $400 in the passenger's side

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of the car. Inside the car, seven cell phones were "ringing

constantly." The officers also seized the keys from the

Maxima's ignition, which they brought back to 106 Sterling

Street and used to gain access to the 3rd floor apartment.

2. Evidence found inside 106 Sterling Street. Upon

entering Apartment 3 at 106 Sterling Street, the officers found

and detained two occupants. After securing the apartment, the

officers applied for a search warrant and obtained permission to

search it for evidence of drug dealing. During the search, the

officers discovered suspected drug packaging material in the

kitchen, a notebook containing what the jury could infer were

"crib notes" with the defendant's name on the back inside cover,

approximately $9,000 in additional cash throughout the home, a

"chunk" of heroin stored in a cabinet, as well as an additional

baggie of heroin and a shoebox with $1,371 in cash in the

defendant's bedroom closet. The police later developed

seventeen latent prints on various pieces of evidence seized

from the apartment.

3. AFIS print card. The Commonwealth introduced an AFIS1

print card as evidence of the defendant's "known prints," in

1 AFIS stands for Automated Fingerprint Identification
System. It is a database that contains fingerprints taken upon
arrest, as well as those taken for the purpose of background
checks for employment or other non-criminal justice purposes.
U.S. Department of Justice, Federal Bureau of Investigation,
Criminal Justice Information Services Division, The Integrated

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support of its claim that the defendant's palm print was found

on drug packaging materials in the kitchen of the apartment.2

The AFIS card contained no identifying information3 beyond the

name "Luis Guillermo." In questioning the Commonwealth

fingerprint expert, the prosecutor described the prints on the

AFIS card as "inked prints," implying that they had been created

with ink on paper. The expert then testified that in the

booking process, the Worcester Police Department takes

fingerprints with a digital scanner called "live scan," "without

the mess of the ink." The expert did not know whether or not

the AFIS prints were created upon the defendant's arrest. The

trial judge admitted the AFIS print card over the defendant's

objection that it was inadmissible unless the Commonwealth

called the booking officer who took the defendant's prints.

4. The notebook. The blue notebook that police recovered

from the apartment contained hand-written notes in Spanish.

Automated Fingerprint Identification System (August 2008),
https://ucr.fbi.gov/fingerprints_biometrics/biometric-center-of-
excellence/files/iafis_0808_one-pager825.

2 Specifically, the Commonwealth's fingerprint expert
compared a latent print recovered from drug packaging material
to a print on the AFIS card and concluded that the latent print
was identified as the defendant's print.

3 The AFIS print card has spaces to record an
"identification number," as well as the subject's middle name,
and the signature and ID number of the official taking the
prints. All of those spaces were left blank.

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Officer Larry Williams, who is bilingual, translated certain

phrases from the notebook from Spanish to English.

Specifically, Officer Williams testified that one sentence in

the notebook read, "Piso was given one hundred.". He then

opined that this phrase could be a reference to "money or an

amount of drugs." Officer Williams also described a second

sentence as signifying that "Somebody was sent to get 50 grams

more." He then opined that this "would definitely be referring

to drugs." Defense counsel did not object to these translations

or opinions.

Discussion. 1. The defendant's answer to police

questioning. On cross-examination of the arresting officer,

defense counsel elicited testimony that he asked the defendant

whether he had just come from 106 Sterling Street, and that the

defendant said no. On appeal, the defendant argues that this

line of questioning, and his counsel's failure to seek

suppression of the defendant's statement, introduced inculpatory

evidence, and thus violated his constitutional right to the

effective assistance of counsel.

Our inquiry generally with respect to claims of ineffective

assistance of counsel is "whether there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer -- and, if that is

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found, then, typically, whether it has likely deprived the

defendant of an otherwise available, substantial ground of

defen[s]e." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

"When a defendant alleges that his attorney committed a

strategic error, . . . we consider whether trial counsel's

tactical choice was manifestly unreasonable at the time the

choice was made." Commonwealth v. Velez, 479 Mass. 506, 512

(2018). "A strategy is manifestly unreasonable if lawyers of

ordinary training and skill in the criminal law would [not]

consider [it] competent" (quotation and citation omitted). Id.

Where trial counsel's tactic was manifestly unreasonable, his

representation is ineffective if it created a substantial risk

of a miscarriage of justice. Commonwealth v. Randolph, 438

Mass. 290, 295-296 (2002).

"[T]he preferred method for raising a claim of ineffective

assistance of counsel is through a motion for new trial."

Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). The

defendant raises this claim of ineffective assistance on direct

appeal, based solely on the trial record. Such an ineffective

assistance claim necessarily lacks "any explanation by trial

counsel for his actions" and as such, must overcome the

"suggesti[on] of strategy contrived by a defendant viewing the

case with hindsight" (quotation and citation omitted).

Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). The defendant

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may overcome this suggestion if "the factual basis of the

[ineffective assistance] claim appears indisputably on the trial

record." Id.

The defendant's appellate counsel contends that "the

factual basis of the ineffective assistance claim appears

indisputably on the trial record" because the defendant's denial

that he was coming from 106 Sterling Street was "a damning lie"

and thus incriminating and prejudicial. We disagree.

In fact, the defendant later testified that after initially

leaving 106 Sterling Street, he got in the Maxima and drove to a

work site, where he stayed for about 20-25 minutes. He

testified that Batista returned in the Maxima and picked him up,

that they drove back towards 106 Sterling Street, and that the

police eventually stopped them. This chronology was consistent

with the defendant's statement to the arresting officer that he

was not coming from 106 Sterling Street. Moreover, it was

consistent with the officer's testimony describing the brief

pause in their surveillance of the Maxima when they drove back

to 106 Sterling Street.

Accordingly, based on the trial record, we conclude that

the basis of this ineffective assistance claim does not

"appear[] indisputably on the trial record." Diaz, 448 Mass. at

289. Therefore, we decline to reach it.

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2. AFIS print card. The defendant asserts that the

admission of the AFIS print card over his objection was

prejudicial error. We disagree.

First, we note that while trial counsel objected to the

"known print card" being admitted into evidence, he did not

state a specific evidentiary basis for his objection. Rather,

trial counsel objected because the booking officer who took the

defendant's prints had not testified. The trial judge

characterized this as a "chain of custody issue" and trial

counsel then objected on that basis.4 On appeal, the defendant

claims that his trial counsel objected to the admission of the

print card on the grounds of authentication, hearsay, and

relevance.5 For its part, the Commonwealth concedes that the

prosecutor did not lay the proper foundation to admit the print

card as a business record but notes that the defendant did not

4 The best practice is to state a specific ground for an
objection in order to preserve the issue for appeal, unless the
basis for the objection is apparent from the context. Mass. G.
Evid. § 103(a)(1)(B) (2025).

5 Given the lack of biographical information on the AFIS
print card beyond the name "Luis Guillermo" and the possibility
that it was not created during booking by the Worcester Police
Department, it seems plausible that the card was not properly
authenticated as belonging to the defendant and therefore was
irrelevant in the absence of testimony from someone who could
link the prints on the card to the defendant, e.g., the officer
who booked the defendant and took his prints. See Commonwealth
v. Welch, 487 Mass. 425, 440 (2021), citing Mass. G. Evid.
§ 901(a).

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object on this ground at trial, and argues that the admission of

the print card should therefore be reviewed only to determine

whether it created a substantial risk of a miscarriage of

justice. In any event, the parties agree that the AFIS card was

admitted in error.

Accepting for the sake of argument that the print card was

erroneously admitted, and that the defendant is entitled to

review under the more favorable prejudicial error standard, we

conclude that the error was not prejudicial. "An error is not

prejudicial if it did not influence the jury, or had but very

slight effect." Commonwealth v. Cruz, 445 Mass. 589, 591

(2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).

Very simply, the evidence that the defendant was

distributing heroin was overwhelming. Accordingly, we conclude

that the admission of the print card did not influence the jury

or had but very slight effect.

A police officer testified that he witnessed the defendant

engage in at least one meaningless ride with a person who had

ten packets of heroin immediately after the defendant left his

truck. Shortly thereafter, the officers arrested the defendant

and found $1,300 on his person and another $400 in the

passenger's side of the car, where he had been sitting. They

also found seven cell phones that were "ringing constantly."

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Then, when they searched his apartment, they found drug

packaging material, a notebook containing possible "crib notes"

with the defendant's name on the back inside cover,

approximately $9,000 in cash, and a "chunk" of heroin. Finally,

the officers found additional heroin and a shoebox with $1,371

in cash in the defendant's bedroom closet.6 In light of this

overwhelming evidence that the defendant was involved in a

heroin trafficking operation, we conclude that testimony linking

the palm print on the plastic bag in the kitchen to the

defendant through the AFIS card at most "had but very slight

effect" (citation omitted) on the jury's verdict. Cruz, 445

Mass. at 591.

3. Notebook translation. For the first time on appeal,

the defendant challenges the admission of testimony about the

contents of the notebook found in the apartment. Because the

defendant did not make a timely objection to this testimony, we

review it only to determine whether its admission was error and

if so, whether it created a substantial risk of a miscarriage of

justice. See Commonwealth v. Brown, 479 Mass. 600, 609-610

(2018). The substantial risk standard requires the court to

determine "if we have a serious doubt whether the result of the

6 The Commonwealth presented evidence that the heroin found
in the apartment weighed in excess of one hundred grams.

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

(citation omitted). Commonwealth v. Desiderio, 491 Mass. 809,

810 (2023).

Assuming without deciding that the judge erred by admitting

Officer Williams's translations, we examine whether any such

error created a substantial risk of a miscarriage of justice.

The defendant testified and offered his own translation of the

words that Officer Williams translated. The defendant's own

translation was substantially the same as the officer's save for

the officer's reference to "50 grams." Again, in light of the

overwhelming evidence against the defendant, this single

additional reference to "50 grams" did not create a substantial

risk of a miscarriage of justice.

Judgments affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.7),

Clerk

Entered: October 30, 2025.

7 The panelists are listed in order of seniority.

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