Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2559
NICHOLAS DELAROSA,
Petitioner, Appellant,
v.
LYNN BISSONETTE; THOMAS F. REILLY, ATTORNEY GENERAL,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Leslie W. O'Brien on brief for petitioner.
Thomas F. Reilly, Attorney General, and Annette C. Benedetto,
Assistant Attorney General, Criminal Bureau, on brief for
respondents.
July 14, 2004
Per Curiam. In 1997, Nicholas Delarosa was convicted in
Massachusetts state court of, inter alia, trafficking in over 200
grams of cocaine. His possession of some drugs was clearly
established, but of importance was whether he had also controlled
drugs found inside an apartment after his arrest. At trial,
Officer Joselito Lozada of the Springfield Police Department
testified about the events that had led up to the stakeout
resulting in Delarosa's arrest. Lozada explained that he had
received a call from an informant: "I received information that
there was going to be a delivery made at approximately 9 p.m. . .
. And we knew what apartment [Delarosa] was in. He had just
recently moved from one apartment to another."
Delarosa objected to the testimony on the ground that it
was hearsay. The trial court admitted the testimony--not for the
truth of the matter asserted, but to explain the subsequent actions
of the police officers in their conduct of the stakeout. The court
gave an accompanying limiting instruction to the jury, explaining
that the testimony was "being offered to explain why people took
certain actions. It's not to substitute for your judgment as to
what actually happened." This instruction was not a model of
clarity, but the defendant made no request for a more lucid one.
In this federal habeas action, Delarosa claims that the
introduction of this testimony violated the Confrontation Clause,
U.S. Const. amend. VI, and that the trial court's limiting
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instruction was insufficient to remedy this error. The district
court denied relief and this appeal, based on a certificate of
appealability, followed. It is unnecessary to concern ourselves
with the proper degree of deference to be given to the state court
rulings and to the magistrate and district court judges in this
case, because by any test the writ was properly denied.
"The [Confrontation] Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the
truth of the matter asserted." Crawford v. Washington, 124 S. Ct.
1354, 1369 n.9 (2004). Here, the statement was offered to show why
the officer acted as he did and not for the truth of the statement.
Even if the trial court's instruction was insufficient to make this
limitation clear to the jury and even if the objection to its
wording was not forfeited for lack of objection, the state's
powerful evidence linking the petitioner to the apartment made any
possible error harmless beyond a reasonable doubt.
Specifically, the state provided ample evidence that
Delarosa had control over the drugs in question: he had keys to the
apartment; he had paid the rent of the apartment for a number of
months; he had been seen going in and out of the building a number
of times over the course of the day, as well as in previous months;
and the cocaine found in his car was of similar quality--and
packaged in the same way--as that found in the apartment. The few
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contested sentences of Officer Lozada's testimony added little, if
anything, to this other information.
Affirmed.
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