Commonwealth v. Tavares K. Bonnett.

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

23-P-28

COMMONWEALTH

vs.

TAVARES K. BONNETT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Tavares K. Bonnett, was convicted in

Superior Court on two indictments for trafficking of drugs in

amounts between eighteen and thirty-six grams, one involving

fentanyl, a class A substance, and the other cocaine, a class B

substance. 1 See G. L. c. 94C, § 32E (b) (1) & (c) (1). On

appeal, the defendant argues that affidavits in support of

applications for warrants to search his car and a single-family

home in New Bedford did not establish a nexus between drug

dealing and either location, and thus his motion to suppress

evidence should have been allowed. The defendant further

1The jury also found the defendant guilty of unlawful
possession of both fentanyl and cocaine with intent to
distribute. On the Commonwealth's motion, the trial judge
dismissed those two convictions as duplicative of the
trafficking convictions.
contends that certain evidentiary rulings by the trial judge

were prejudicial error or error giving rise to a substantial

risk of a miscarriage of justice. We affirm.

Background. On September 7, 2019, the clerk-magistrate of

the New Bedford District Court issued two warrants authorizing

police to search a single-family home on North Street (North

Street address) and the defendant's car, a grey 2003 Mercedes-

Benz. The detective's affidavits supporting the applications

for those search warrants were substantially similar and set

forth information including the following.

A confidential informant (CI) told police that a man known

as "LG" was selling fentanyl from the North Street address. The

CI reported that the CI had personally contacted LG at a certain

telephone number, arranged to buy fentanyl, and then met LG at a

prearranged location at which LG arrived driving a grey Mercedes

with a certain license plate number. The CI described LG as a

Black male in his mid-forties with a bald head. From the

Registry of Motor Vehicles database, the affiant obtained a

photograph of the registered owner of the Mercedes -- the

defendant -- and showed it to the CI, who identified it as

depicting LG.

During surveillance, police saw the defendant on several

occasions leave the North Street address, get into the Mercedes,

and drive away. Police conducted two controlled buys in which

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the CI bought fentanyl from the defendant, the first nearly

three and one-half months before issuance of the search warrants

and the second within seventy-two hours before. During each

controlled buy, police saw the defendant leave from the North

Street address, get into the Mercedes, and drive to a

prearranged location for the sale. Each time, police provided

the CI with an amount of money, searched the CI before and after

the sale, monitored the CI during it, and determined that the

substance that the CI bought contained fentanyl.

Police executed the search warrants on the same day they

issued. From the Mercedes, police seized three cell phones and

a key. From the North Street address, police seized evidence

including fentanyl, cocaine, cash, a digital scale, a drug

ledger, and personal papers in the defendant's name.

The defendant moved to suppress evidence, arguing that the

affidavits in support of the search warrants did not establish a

nexus between drug dealing and either the Mercedes or the North

Street address. After a nonevidentiary hearing, the motion

judge denied the motion to suppress.

At trial, the Commonwealth presented evidence that when

executing the search warrant on the North Street address, police

seized from an upstairs bedroom a Versace eyeglasses case that

contained four plastic bags, each of which contained fentanyl,

cocaine, or a mixture of the two. Police also seized cut

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plastic bags, a digital scale, cutting agents, and a drug

ledger. From various places in the bedroom, police seized

personal papers in the defendant's name including his birth

certificate, Social Security card, tax documents, correspondence

from the Registry of Motor Vehicles, and a parking ticket. From

the defendant's wallet in his pants pocket, police seized 761

dollars in cash.

The defendant testified that he lived with his stepfather

in Taunton, had never even been upstairs at the North Street

address, and did not own anything that police found there. He

testified that he kept his personal papers in the Mercedes, and

someone had taken them and put them inside the North Street

address.

Discussion. 1. Denial of motion to suppress. The

defendant argues that the motion judge should have suppressed

the evidence found in his Mercedes and at the North Street

address because the search warrant affidavits did not establish

a sufficient nexus between drug dealing and either location. He

also claims that the CI's information was unreliable and thus

could not be used to support probable cause.

We review search warrant applications de novo. See

Commonwealth v. Gosselin, 486 Mass. 256, 264-265 (2020). That

review "begins and ends with the four corners of the affidavit."

Commonwealth v. Defrancesco, 99 Mass. App. Ct. 208, 211 (2021),

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quoting Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). A

search warrant affidavit "must demonstrate probable cause to

believe [1] that a particularly described offense has been, is

being, or is about to be committed, and [2] that [search] will

produce evidence of such offense or will help apprehend a person

who the applicant has probable cause to believe has committed,

is committing, or is about to commit such offense" (quotation

omitted). Gosselin, supra at 265, quoting Commonwealth v.

Estabrook, 472 Mass. 852, 870 (2015). The motion judge properly

concluded that the affidavits in this case demonstrated probable

cause that the defendant sold fentanyl, that there was a timely

nexus between his sales and both the Mercedes and the North

Street address, and therefore there was probable cause that

police would find evidence of fentanyl distribution in both

locations.

The search warrant affidavits established that the

defendant was selling fentanyl. The CI reported personally

having bought fentanyl from the defendant. A search warrant

affidavit based on information from a confidential informant

must satisfy the Aguilar-Spinelli test, which requires an

affidavit to "establish the CI's basis of knowledge and

veracity." Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 81

(2020). Here, the Commonwealth concedes that the affidavits did

not establish the CI's veracity or basis of knowledge. However,

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"[i]ndependent police corroboration may make up for deficiencies

in one or both prongs of the Aguilar-Spinelli analysis." Id.

In this case, police corroborated the CI's information with two

controlled buys in which the CI bought fentanyl from the

defendant. 2 The fact that the first controlled buy took place

nearly three and one-half months before issuance of the search

warrants did not render the CI's information stale, because the

second controlled buy took place within seventy-two hours of the

issuance of the search warrant, and just before that second buy,

police saw the defendant leave the North Street address and

travel to its location in the Mercedes. See Commonwealth v.

Escalera, 462 Mass. 636, 644-645 (2012); see also Ponte, supra

at 83 ("Generally, [a] controlled purchase of narcotics,

supervised by the police, provides probable cause to issue a

search warrant" [quotation and citation omitted]).

The affidavits also established a timely nexus between the

defendant's fentanyl sales and both the Mercedes and the North

Street address. Just before each of the controlled buys, police

saw the defendant leave the North Street address and drive in

2 The affidavits also stated that the defendant's criminal
record listed many "arraignments," but did not say if any of the
arraignments resulted in convictions or involved the seizure of
contraband. As explained in Ponte, 97 Mass. App. Ct. at 82, a
subsequently decided case involving a search warrant issued on
the application of the same affiant as in the present case,
information about a suspect's arraignments "but nothing more"
adds little or nothing to probable cause.

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the Mercedes to each prearranged location, where he sold

fentanyl to the CI. That established probable cause to believe

that evidence of fentanyl distribution would be found in both

the Mercedes and the North Street address. See Defrancesco, 99

Mass. App. Ct. at 213 (use of car to arrive at drug sales

supported reasonable inference that the car contained evidence);

Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 482-483

(2020) (probable cause to search apartment in part because

defendant left from that apartment on two occasions to sell

drugs); see also Commonwealth v. Lewis, 103 Mass. App. Ct. 61,

63 (2023) (probable cause to search hotel room in part because

defendant left from that room to sell drugs on one occasion).

Because the search warrant affidavits established probable

cause that evidence of fentanyl distribution would be found both

in the Mercedes and at the North Street address, the motion to

suppress was properly denied.

2. Evidentiary rulings. The defendant finds fault with

several evidentiary rulings by the trial judge. To the extent

that the defendant objected to a piece of evidence, we review

its admission for prejudicial error. See Commonwealth v. Brum,

492 Mass. 581, 587 (2023). Where the defendant did not object

to evidence, we consider whether its admission constituted

prejudicial error that gave rise to a substantial risk of a

miscarriage of justice. See id.

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a. Police opinion testimony. The defendant argues that

three New Bedford detectives improperly testified in a

"conclusory" manner about how various items they seized were

related to drug distribution, contending that "there was no

need" for that testimony because a State trooper gave similar

testimony.

At trial the defendant did not object to that testimony,

and so we consider whether it was erroneously admitted and, if

so, whether the error gave rise to a substantial risk of a

miscarriage of justice. See Brum, 492 Mass. at 587. Detectives

explained how drugs were diluted with cutting agents and

packaged in corner-cut plastic baggies, and that notations in a

notebook were consistent with a drug ledger. One detective

noted that during the search police did not find any items

commonly used to ingest narcotics.

The detectives' testimony "properly inform[ed] the jury of

the significance of evidence generally" and was not "a direct

comment as to [the defendant's] guilt." Commonwealth v.

Grissett, 66 Mass. App. Ct. 454, 457-458 (2006). To the extent

that the testimony was cumulative, the judge did not abuse his

discretion in permitting it, particularly absent an objection.

Beyond that, where the defendant's theory was that he had never

even been upstairs at the North Street address and the items

found in the bedroom did not belong to him, the testimony did

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not prejudice his defense. Cf. Commonwealth v. Ortiz, 50 Mass.

App. Ct. 304, 307 (2000) (police testimony that defendant was

"runner" in drug sales improperly blurred line between

percipient and expert testimony, but no substantial risk of

miscarriage of justice). No substantial risk of a miscarriage

of justice arose.

b. "Dangerousness" of fentanyl. The defendant claims that

prejudicial error occurred when a detective testified that latex

gloves found at the North Street address were significant

because gloves "are commonly used . . . in the packaging process

of narcotics because of the . . . dangerousness of fentanyl." 3

Defense counsel objected, arguing at sidebar, "There's nothing

dangerous about touching cocaine." The judge overruled the

objection, noting that "this may be an area that would be better

3 In a single sentence in his brief, the defendant mentions
the trial judge's instructions to the jury about certain
exhibits containing narcotics. The baggies of narcotics were
displayed to the jury, and a photograph of them (was admitted in
evidence. The judge told the jury that it was his practice in
all drug cases not to allow narcotics into the jury room. Also
admitted as exhibits were two sealed bags, one containing the
eyeglasses case and the other containing used latex gloves.
After the clerk informed the judge that the evidence bag
containing the eyeglasses case had come open, the judge
explained to the jury that photographs of items containing
narcotics would go to the jury room instead of the items
themselves. The defendant did not object and was content with
the exhibits. Even assuming, without deciding, that the
defendant preserved at trial or raised on appeal any issue about
the judge's handling of exhibits containing narcotics, we
discern no error.

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served with cross-examination," and that he understood the

detective's testimony to mean that "the gloves went more to

the . . . fentanyl." Despite the judge's invitation, the

defendant did not return to the subject of the gloves on cross-

examination of the detective. We discern no abuse of discretion

in the trial judge's implicit determination that the detective

was qualified to opine about the significance of gloves in

narcotics investigations. See Commonwealth v. Sullivan, 76

Mass. App. Ct. 864, 874 n.11 (2010). Especially where the

defendant's theory was that the narcotics were not his, and he

did not dispute that the substances found at the North Street

address were illegal narcotics, there was no prejudice. 4

c. Use of the word "target." The defendant moved in

limine to preclude the Commonwealth from using the term "search

warrant" and from referring to the defendant as the "target."

The trial judge allowed the motion as to "target," but denied

the motion as to "search warrant." The defendant argues that

despite that ruling, the Commonwealth elicited testimony from a

detective that improperly referred to the defendant as the

"target" of the search warrant, and from a State trooper

describing generally how police conduct surveillance on a person

4 We also note that defense counsel suggested "an
instruction to say that we're not going to send this back to you
because it could be dangerous."

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who is the "target" of a drug investigation. 5 See Commonwealth

v. Grady, 474 Mass. 715, 719 (2016) (review for prejudicial

error when issue raised in motion in limine).

While the detective was testifying about stopping the

defendant's Mercedes, the prosecutor asked about police safety

concerns, and the detective replied, "[w]hen we're stopping a

target of a search warrant, a lot--." The defendant objected,

and the trial judge sustained the objection; the defendant moved

to strike, and the trial judge struck that answer. Both before

trial and again in his final charge, the judge instructed the

jury to disregard any evidence that was stricken. Jurors are

presumed to follow a judge's instructions, "including

instructions to disregard certain testimony." Commonwealth v.

Silva, 93 Mass. App. Ct. 609, 615 (2018), quoting Commonwealth

v. Williams, 450 Mass. 645, 651 (2008). The judge's prompt

striking of testimony referencing the defendant as the "target"

of the search warrant, along with his instructions, averted any

prejudicial error. See Commonwealth v. Cortez, 438 Mass. 123,

130 (2002).

5 To the extent that the defendant complains that the search
warrant affiant testified that a search warrant could be "going
for a home or a vehicle . . . [or] a certain individual" and
"this time it was for [the defendant]," that testimony did not
run afoul of the in limine ruling because it did not use the
word "target." The trial judge overruled the objection, and we
discern no prejudicial error.

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As for the trooper's testimony, he used the word "target"

three times, referring not to the defendant specifically but

rather to explain how police conduct surveillance on an

individual. The defendant objected only on the third occasion,

and the trial judge responded, "Another question, please." The

defendant did not move to strike the word "target." We discern

no substantial risk of a miscarriage of justice as to the first

two instances, and no prejudicial error in the trial judge's

handling of the third instance.

d. Photograph of cash and drugs. The defendant contends

that the trial judge abused his discretion in admitting in

evidence a photograph that depicted both the cash found on the

defendant's person and the baggies of narcotics found at the

North Street address. The defendant argues that because those

items were found in different locations, they should not have

been depicted in the same photograph.

The prosecutor repeatedly elicited testimony from police

witnesses explaining that items in the photograph -- the cash

and the narcotics -- were not found in the same location. The

detectives who found each of those items testified to where the

items were found. That was sufficient to authenticate the

photograph as a fair and accurate representation of both items.

See Commonwealth v. Figueroa, 56 Mass. App. 641, 646 (2002); see

also Mass. G. Evid § 901(a) (2024). Once the photograph was

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properly authenticated, any argument regarding its reliability

went to the weight of the evidence, not its admissibility. See

Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).

Indeed, the defendant's counsel argued in closing that the

photograph of the cash and drugs together was "misleading," and

police took it to "bolster their case."

e. Father's Day card. The defendant argues that the

prosecutor improperly cross-examined him about a photograph of

the top of a dresser in the bedroom at the North Street address,

which depicted items including a partially obscured greeting

card bearing the words "Happy Father's." The defendant contends

that the prosecutor did not have a sufficient basis to ask him

to assume that it was a Father's Day card.

On cross-examination, the prosecutor showed the defendant

the photograph and asked about a framed photograph depicted on

top of the dresser. The defendant admitted that the framed

photograph was taken of him and Evette Vega at a wedding but

denied that he and she were ever in a romantic relationship.

Asked if he could see the words "Happy Father's" depicted on the

front of the greeting card on top of the dresser, the defendant

replied, "I can't make that out. My eyes are not that good."

The following exchange ensued:

Prosecutor: "Do you have any reason to know why Evette
Vega would have a Father's Day card on her dresser?"

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Defendant: "It's not my dresser. I don't know what she
has on her dresser. She has makeup on her dresser. I
don't know why she has that there."

Prosecutor: "Sure. Certainly not a Father's Day card for
you on that dresser; right?"

Defendant: "No."

Prosecutor: "Okay."

Defendant: "I'm not her father."

The defendant objected on the ground that the prosecutor

did not have a basis to ask the defendant to infer that the card

said, "Happy Father's Day." Assuming, without deciding, that it

was error for the prosecutor to ask the defendant to draw that

inference, the defendant cannot show prejudice. The photograph

was admitted as an exhibit at trial and it was for the jury to

determine what it said. In the context of the many other

personal documents linking the defendant to that bedroom and his

defense theory that he had never set foot upstairs in that

house, he was not prejudiced by the questions about the greeting

card.

3. Third-party culprit. During trial, the defendant moved

to introduce documents showing that two years before the

execution of these search warrants, another man living at the

North Street address had been convicted of a drug offense.

Specifically, defense counsel asked to introduce copies of a

prior conviction of the third party and a probation surrender

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notice. 6 The trial judge ruled that the defendant could not

introduce those documents without first calling the third party

to testify. The defendant did not do so.

A defendant is generally allowed to "introduce evidence

that tends to show that another person committed the crime or

had the motive, intent, and opportunity to commit it" (citation

omitted). Commonwealth v. Smith, 461 Mass. 438, 445 (2012).

See Mass. G. Evid. § 1105 (2023). But there are limits. The

documents that the defendant sought to introduce contained

hearsay. "If such [third-party culprit] evidence does not fall

within a hearsay exception, we have permitted its introduction

only if, in the judge's discretion, the evidence is otherwise

relevant, will not tend to prejudice or confuse the jury, and

there are other substantial connecting links to the crime"

(quotations and citations omitted). Commonwealth v. Bizanowicz,

459 Mass. 400, 418 (2011) (judge did not abuse discretion in

excluding police report documenting murder victim's landlord's

dispute with former tenant). The proffered evidence "must have

a rational tendency to prove the issue the defendant raises, and

the evidence cannot be too remote or speculative" (citation

omitted). Smith, supra at 445-446. "Without these safeguards,

6 Those documents were not marked as exhibits, and so they
are not before us. We cannot ascertain whether the conviction
was certified, or to what offense it pertained.

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the admission of feeble third-party culprit evidence poses a

risk of unfair prejudice to the Commonwealth, because it

inevitably diverts jurors' attention away from the defendant on

trial and onto the third party" (quotation and citation

omitted). Commonwealth v. Steadman, 489 Mass. 372, 383 (2022).

Contrary to the defendant's present claim, the judge did

not prevent the defendant from presenting evidence that the man

who had lived at the North Street address two years previously

could have been the third-party culprit. Defense counsel did

elicit from police witnesses that in the past police "ha[d]

dealt" with the former resident, who had been the subject of a

drug investigation in 2017. In closing argument, defense

counsel marshalled evidence to tie that former resident to the

North Street address. Given the turnover of products in a drug

distribution business, we discern no abuse of discretion in the

judge's precluding the defendant from introducing documentary

evidence of the former resident's criminal history two years

before. Based on the incomplete record before us, we cannot say

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that the documents proffered would have added anything more to

the defense.

Judgments affirmed.

By the Court (Massing,
Singh & Grant, JJ. 7),

Clerk

Entered: July 29, 2024.

7 The panelists are listed in order of seniority.

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