Massachusetts Appeals Court Vacates Drug Distribution Convictions Over Prior Bad Acts Evidence — But the Decision Is Not Binding Precedent
The Massachusetts Appeals Court recently vacated two drug-distribution convictions after concluding that prosecutors introduced far too much evidence of alleged prior drug dealing against the defendant.
The case, Commonwealth v. Hendrick Ortiz Suarez, Appeals Court No. 25-P-427, is important for criminal defense lawyers because it addresses a recurring problem in drug prosecutions: when does evidence offered to prove “knowledge,” “intent,” “motive,” or a “pattern of operation” become, in practical effect, evidence that the defendant is simply the kind of person who commits drug crimes?
In Ortiz Suarez, the Appeals Court concluded that the line had been crossed. The Commonwealth introduced approximately one hundred pages of text messages appearing to arrange numerous other drug transactions, along with photographs of large amounts of money. Although the trial judge gave limiting instructions, the Appeals Court held that the volume and nature of the evidence created an unacceptable risk that the jury would use it for the forbidden purpose of propensity reasoning.
The convictions were vacated and the verdicts set aside.
There is, however, an important qualification.
Ortiz Suarez is a Rule 23.0 summary decision. It is not binding precedent.
What Does It Mean That Ortiz Suarez Is a Rule 23.0 Decision?
The Appeals Court expressly designated Ortiz Suarez as a Memorandum and Order Pursuant to Rule 23.0.
Rule 23.0 decisions occupy a different place in Massachusetts appellate law from published Appeals Court opinions.
As the notice appearing at the beginning of the decision explains, Rule 23.0 summary decisions are primarily directed to the parties. They may not fully address all of the facts or all of the reasoning underlying the panel's decision. They also are not circulated to the entire Appeals Court before issuance and therefore represent the views of the particular panel deciding the case.
Most importantly, a Rule 23.0 decision issued after February 25, 2008 may be cited for its persuasive value, but it is not binding precedent.
That means lawyers should be careful about how they describe Ortiz Suarez.
It would be inaccurate to cite the case as establishing a new binding rule of Massachusetts evidence law. A trial judge is not required to follow Ortiz Suarez in the same way the judge would be required to follow controlling authority from the Supreme Judicial Court or an applicable published decision of the Appeals Court.
But that does not make the decision meaningless.
A Rule 23.0 opinion may still be persuasive, particularly where the facts of another case closely resemble the facts considered by the panel. And here, the panel's analysis rests heavily on established published Massachusetts cases governing prior bad acts, unfair prejudice, and propensity evidence.
The practical way to use Ortiz Suarez, therefore, is to lead with the controlling published authorities and then cite Ortiz Suarez as a recent example of the Appeals Court applying those principles to an unusually large volume of alleged prior drug transactions.
That is a meaningful distinction.
The Charges Against Hendrick Ortiz Suarez
The case arose from an investigation in Salem on May 27, 2022.
Police were aware that a resident of Cedar Avenue had died earlier that day from what was believed to be a drug overdose. Police also knew the deceased and her husband, John DeVoe, as drug users. In addition, officers had received complaints about suspected drug activity in the neighborhood involving a white SUV making brief stops.
That evening, detectives saw a white Acura SUV with Florida plates briefly enter Cedar Avenue.
Later, Detective Robert Cunningham saw DeVoe ride his bicycle to a convenience store parking lot. A white Acura SUV appeared nearby.
Detective Wes Regan saw DeVoe approach the passenger side of the Acura. Regan observed DeVoe and the driver, later identified as Ortiz Suarez, reach toward one another through the window and exchange something.
Regan believed he had witnessed a drug transaction.
Police stopped the Acura.
Meanwhile, Cunningham stopped DeVoe. When Cunningham asked where the drugs he had just bought were located, DeVoe directed him to a purple cup on the ground. Police discovered what they believed to be crack cocaine and fentanyl.
Cunningham relayed that information to Regan, who arrested Ortiz Suarez.
Police found $516 and two cell phones during a patfrisk. Another phone was found during an inventory search of the vehicle.
Significantly, police found no drugs on Ortiz Suarez and no drugs in the Acura.
Ortiz Suarez was nevertheless charged and ultimately convicted after a jury trial of distributing a Class A substance and distributing a Class B substance.
The Appeals Court Upholds the Arrest
Ortiz Suarez first challenged the denial of his motion to suppress.
He argued that his association with DeVoe and the officers' observations did not establish probable cause to arrest him.
The Appeals Court rejected that argument.
The court relied on the circumstances surrounding the encounter: the brief exchange between Ortiz Suarez and a known drug user, complaints about drug transactions in the area, the involvement of a white SUV resembling the vehicle described in those complaints, Ortiz Suarez's denial that he had met anyone at the convenience store, and the experience of the investigating officers.
Most importantly, DeVoe told police that he had just purchased drugs, and police immediately recovered suspected drugs near him.
Taken together, the panel concluded, those facts supplied probable cause to arrest Ortiz Suarez.
The Appeals Court therefore affirmed the denial of the motion to suppress.
For defense lawyers, that part of the decision is a reminder that courts evaluate probable cause based on the combined information known to the police rather than isolating each observation. The fact that an officer did not actually see drugs pass between two people does not necessarily defeat probable cause when other facts immediately corroborate the officer's interpretation of the exchange.
But the Commonwealth encountered a much more serious problem with what happened at trial.
The Commonwealth Introduced Approximately 100 Pages of Other Alleged Drug Transactions
Before trial, prosecutors sought permission to introduce evidence recovered from Ortiz Suarez's phones.
That evidence included text messages allegedly documenting other drug transactions and photographs depicting large amounts of cash.
The defendant moved to exclude the evidence as improper prior bad acts.
The trial judge allowed the Commonwealth to introduce text messages and photographs from the two weeks preceding Ortiz Suarez's arrest.
The judge ruled that the evidence could be considered for several supposedly permissible purposes, including:
a pattern of operation involving street-level drug distribution;
financial motive;
knowledge of controlled substances; and
intent to distribute controlled substances.
The jury was instructed that it could consider the evidence only for those limited purposes and could not conclude that because Ortiz Suarez committed other acts, he must also have committed the charged offenses.
The problem was the sheer magnitude of what followed.
The Commonwealth introduced approximately one hundred pages of text messages apparently documenting numerous other drug transactions.
The trial was no longer simply about whether Ortiz Suarez sold drugs to DeVoe during the single transaction police claimed to have observed.
The jury was presented with evidence portraying Ortiz Suarez as someone repeatedly engaged in drug dealing.
That distinction ultimately required reversal.
Prior Bad Acts Cannot Be Used to Prove Criminal Propensity
Massachusetts evidence law starts with a fundamental rule: the Commonwealth ordinarily cannot introduce evidence that a defendant committed other bad acts merely to show that the defendant has a bad character or a propensity to commit crimes.
There are exceptions.
Evidence of other acts can sometimes be introduced for another relevant purpose, including motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.
But attaching one of those labels to the evidence does not end the inquiry.
Even when prior-act evidence has some legitimate relevance, the trial judge must still determine whether its probative value is outweighed by the danger of unfair prejudice.
That balancing was central to Ortiz Suarez.
The Text Messages Did Not Establish a Pattern of Operation
One significant portion of the Appeals Court's analysis involved the Commonwealth's claim that the text messages demonstrated a “pattern of operation.”
The Commonwealth itself conceded on appeal that the messages were not properly admissible for that purpose.
A true pattern of operation requires more than evidence that a defendant allegedly committed similar crimes in the past.
There must generally be some meaningful distinctiveness to the method involved: a unique technique, distinguishing characteristic, or sufficiently particular pattern connecting the acts.
The messages in Ortiz Suarez did not satisfy that standard.
That left the messages with a narrower possible relevance. According to the court, they potentially demonstrated Ortiz Suarez's knowledge of the substances involved, a financial motive, and an intent to engage in drug transactions.
But even that legitimate relevance had to be weighed against the extraordinary prejudicial effect of presenting the jury with approximately one hundred pages of other alleged drug dealing.
One Hundred Pages of Alleged Drug Transactions Overwhelmed the Charged Crime
This is the most important part of the decision.
The Appeals Court recognized that the trial judge had attempted to control the prejudice.
The judge limited the messages to those occurring during the two weeks before the charged offense. The judge also twice instructed jurors that they could not use the evidence simply to conclude that because Ortiz Suarez had committed other acts, he must have committed the crimes charged.
Those precautions were not enough.
The Appeals Court focused on the quantity and proportionality of the evidence.
The approximately one hundred pages of messages appeared to document a multitude of other drug transactions. That evidence substantially overshadowed the single drug transaction actually charged in the case.
The danger was obvious.
The more the jury heard about other alleged drug transactions, the more likely it became that jurors would reason:
This defendant sells drugs regularly. Therefore, he probably sold drugs on this occasion too.
That is precisely the propensity inference the prior-bad-acts rule is designed to prevent.
The panel concluded that the excessive volume of the messages substantially increased that danger.
This is an important point for defense lawyers challenging prior-bad-acts evidence.
Sometimes the issue is not simply whether some evidence has a permissible evidentiary purpose. The amount of otherwise relevant evidence can itself create unfair prejudice.
Evidence that might be tolerable in a carefully limited form can become inadmissible when prosecutors present it in a manner that overwhelms the conduct actually being tried.
Photographs of Cash Presented a Separate Problem
The Appeals Court also rejected the admission of photographs from Ortiz Suarez's phone showing large amounts of money.
The Commonwealth argued that the photographs demonstrated a financial motive to sell drugs.
The panel was not persuaded.
The photographs had no demonstrated connection to the alleged sale to DeVoe.
The fact that someone possesses or photographs money does not meaningfully establish that the person committed a particular drug transaction.
The Appeals Court concluded that the photographs were far more likely to encourage the jury to view Ortiz Suarez as someone with a criminal lifestyle or “criminal personality” than to prove a legitimate disputed issue in the case.
Their limited probative value was therefore outweighed by the danger of unfair prejudice.
Limiting Instructions Cannot Always Cure Propensity Evidence
The Commonwealth had another argument available: the judge told jurors what they could and could not do with the evidence.
Limiting instructions matter. Courts generally presume jurors follow them.
But Ortiz Suarez illustrates an important limit to that principle.
There comes a point at which the prejudicial nature of evidence becomes too great to solve merely by telling jurors not to use it for the most obvious purpose.
Here, jurors were confronted with roughly one hundred pages of messages suggesting repeated drug transactions and photographs of large amounts of money while deciding whether Ortiz Suarez committed one particular drug sale.
The Appeals Court concluded that limiting instructions were insufficient to overcome the prejudice created by that evidence.
The convictions therefore could not stand.
The Convictions Were Vacated, But the Case Is Not Over
The Appeals Court vacated both judgments, set aside the verdicts, and returned the case to the District Court.
That does not amount to an acquittal.
Because the court upheld the denial of the motion to suppress and reversed based on trial error, the Commonwealth may retry Ortiz Suarez if prosecutors choose to do so.
The distinction is important.
Ortiz Suarez succeeded in obtaining reversal of his convictions because of the improper admission of evidence, but the Appeals Court did not hold that the Commonwealth lacked sufficient grounds to prosecute him.
How Much Authority Does Ortiz Suarez Have in Another Massachusetts Case?
Because this is a Rule 23.0 decision, lawyers should resist overstating it.
The case does not establish binding precedent that one hundred pages of prior-act evidence are always too many. It does not create a numerical limit on text messages, photographs, or prior transactions. And it does not require every Massachusetts trial judge confronting similar evidence to reach precisely the same result.
Its value is persuasive.
For example, a defense attorney facing a prosecution in which the Commonwealth seeks to introduce extensive text messages depicting numerous uncharged drug transactions could rely principally on the published cases governing prior bad acts and unfair prejudice and then point to Ortiz Suarez as a recent application of those principles.
The argument would not be that the trial court is “bound” by Ortiz Suarez.
The better argument is that the same danger identified by the panel is present: the evidence offered to prove intent or knowledge has become so extensive that the jury is effectively being asked to judge the defendant's alleged history instead of the charged crime.
That is where Ortiz Suarez is most useful.
Why Ortiz Suarez Matters for Massachusetts Criminal Cases
The significance of Ortiz Suarez extends beyond drug prosecutions.
Modern criminal cases frequently involve enormous quantities of digital evidence. A cellphone extraction can contain years of text messages, photographs, social media communications, search history, and other information.
The availability of that evidence does not make all of it admissible.
The Commonwealth must still establish a legitimate evidentiary purpose. The trial judge must still weigh probative value against unfair prejudice. And courts must remain alert to the danger that a trial about a particular alleged crime can quietly become a trial about the defendant's character.
Ortiz Suarez demonstrates that volume matters.
A limited number of communications relevant to knowledge or intent may present one evidentiary question. One hundred pages describing a multitude of similar uncharged acts present another.
When the prior-act evidence becomes more prominent than the crime for which the defendant is actually on trial, the risk of propensity reasoning becomes particularly serious.
That principle comes from established Massachusetts evidence law even though Ortiz Suarez itself, as a Rule 23.0 decision, is persuasive rather than binding authority.
Frequently Asked Questions
Is Commonwealth v. Ortiz Suarez binding precedent in Massachusetts?
No. Commonwealth v. Ortiz Suarez, Appeals Court No. 25-P-427, was issued as a summary decision pursuant to Massachusetts Appeals Court Rule 23.0. It may be cited for its persuasive value, but it is not binding precedent.
Can lawyers cite a Rule 23.0 Appeals Court decision?
Yes. Rule 23.0 decisions issued after February 25, 2008 may be cited for persuasive value. Lawyers should make clear, however, that the decision is a summary decision rather than binding appellate precedent.
Why did the Appeals Court vacate the drug convictions?
The court concluded that the jury should not have been presented with the extensive prior-bad-acts evidence introduced at trial. Approximately one hundred pages of text messages appeared to document numerous other drug transactions, and photographs showed large amounts of money. The Appeals Court concluded that the risk of unfair prejudice outweighed the evidence's probative value.
Did the Appeals Court rule that the police illegally arrested Ortiz Suarez?
No. The Appeals Court affirmed the denial of the defendant's motion to suppress. It held that the information available to police, including the observed exchange and DeVoe's statement that he had just purchased drugs, established probable cause.
Can the Commonwealth retry Ortiz Suarez?
Yes. The Appeals Court vacated the judgments, set aside the verdicts, and remanded the case to the District Court so that the Commonwealth may retry Ortiz Suarez if it chooses.
Massachusetts Criminal Defense and Prior Bad Acts Evidence
Evidence concerning uncharged conduct can dramatically change a criminal trial. What begins as evidence supposedly offered to establish knowledge or intent can become an indirect invitation for jurors to convict because they believe the defendant has committed similar acts before.
Massachusetts law does not permit that shortcut.
Commonwealth v. Ortiz Suarez is not binding precedent, and its Rule 23.0 status should always be disclosed when the case is cited. But the decision offers a useful recent illustration of an established principle: even evidence possessing some legitimate relevance may have to be excluded when its quantity, similarity, and prejudicial force threaten to overwhelm the crime actually being tried.
For anyone facing drug distribution charges or another Massachusetts criminal case in which prosecutors seek to introduce evidence of alleged prior misconduct, the admissibility and scope of that evidence can be a critical issue requiring careful litigation before trial.