Opinion
19-P-1239
08-17-2020
COMMONWEALTH v. ANTHONY COLEMAN.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of possession with intent to distribute a class A substance (heroin), and distribution of a class A substance (heroin), both in violation of G. L. c. 94C, § 32 (b). On appeal he challenges (1) the denial of his motion to suppress and (2) the admission of opinion testimony at trial. We affirm.
The subsequent offense portion of these charges were nolle prossed.
1. Motion to suppress. The defendant argues that "the motion judge erred in denying [his] motion to suppress the evidence seized from the stop of his vehicle and the resulting search of it and his person." More specifically, the defendant argues that the judge should have allowed his motion because "[t]he Commonwealth failed to meet its burden to show that the warrantless stop was based on reasonable suspicion, that the exit order was justified, or that the arrest was based on probable cause." Because probable cause justified the stop and the police's ensuing conduct, we disagree.
"[W]e adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Buckley, 478 Mass. 861, 864 (2018), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). "We may affirm the denial of a motion to suppress on any ground supported by the record." Commonwealth v. Washington, 449 Mass. 476, 483 (2007), citing Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
"Probable cause to arrest exists where the facts and circumstances in the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed." Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 168 (2017), quoting Commonwealth v. Williams, 422 Mass. 111, 119 n.11 (1996). "The standard for probable cause 'is a relatively low threshold, requiring only sufficiently trustworthy information to instill in a reasonable person the requisite belief of criminality.'" Commonwealth v. Carrillo, 483 Mass. 269, 278 (2019), quoting Paquette v. Commonwealth, 440 Mass. 121, 132 (2003), cert. denied, 540 U.S. 1150 (2004).
"Probable cause for an arrest . . . brings with it the 'search incident to arrest' exception to the warrant requirement for a search." Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 175 (2019), quoting Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 53 (2000). Further, "[w]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 [of the Massachusetts Declaration of Rights] beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle." Commonwealth v. Johnson, 461 Mass. 44, 49 (2011), quoting Commonwealth v. Motta, 424 Mass. 117, 124 (1997).
The pertinent facts are as follows. Police Officers Peter Panacopoulos and Steve Emery, both experienced drug task force members, observed the defendant and a male passenger seated in a car parked in front of an address known for illegal drug activity. The officers watched the defendant and passenger engage in a brief drive, which the officers believed was for the purpose of a drug deal. After the defendant and passenger drove around the block in less than sixty seconds, the passenger exited the car across the street from where the officers had first observed them. Panacopoulos followed the passenger on foot. Emery followed the defendant in the officers' unmarked police car as the defendant drove away.
We recite the facts as the motion judge found them, supplemented by the undisputed testimony of the two police officers who testified at the suppression hearing. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018) (appellate court may look to uncontroverted evidence at suppression hearing that is consistent with judge's findings).
The defendant challenges only one of the judge's factual findings as clear error -- "the judge's finding that there was a 'short around-the-block ride,'" -- because the officers had not observed when the passenger had first gotten in the car. However, undisputed suppression hearing testimony indicated that the defendant's car was stopped when the officers first observed the defendant and passenger inside it. The defendant and passenger then drove around the block in less than sixty seconds, and the passenger exited the car across the street from where the officers first observed them. What happened before the officers observed the men does not change that the officers observed their car go from stopped in one place to stopped in almost the same place after a "short around-the-block ride." Therefore, the judge's finding is supported.
The passenger walked to the driveway of the address known for drug activity. There he approached a truck that was parked with its engine running, and with a female companion in the driver's seat. Panacopoulos noticed that the passenger's left hand was clenched. As the passenger got to the passenger side of the truck, Panacopoulos identified himself as a police officer. The passenger turned around and looked at the police officer, then opened the truck door with his right hand. He made a backward throwing motion with his left hand, sending some small items into the truck. Panacopoulos told both the companion and the passenger to keep their hands where he could see them and then called for backup. Once backup arrived, Panacopoulos searched the passenger and found what he believed to be drugs, including heroin. Panacopoulos also located several "twists" of what he believed to be heroin in the passenger area of the truck. The companion then told Panacopoulos that she "knew that the passenger was buying heroin."
Panacopoulos relayed to Emery -- who was still tailing the defendant -- that he found "product" on the passenger, which Emery knew from experience to mean "something that was arrestable." Meanwhile, Emery had seen the defendant drive through a stop sign without slowing, and briefly pull over to the left side of the road before returning to the right side and continuing to drive. A marked cruiser that Emery had summoned helped stop the defendant's car.
Emery identified himself to the defendant as a police officer, asked the defendant to exit his car, and arrested him. Police searched the defendant's person, on which they found money and a cell phone. They also searched his car, in which they found a folding knife and marijuana.
These facts, viewed together, supplied the police with probable cause to stop the defendant's car, issue an exit order, arrest the defendant, and search his person and his car under reasonable belief that he and the passenger had engaged in a heroin sale therein.
The officers' initial observation of the defendant and passenger driving around the block for less than sixty seconds -- after which the passenger exited the car essentially where the officers first saw them -- was the first indication of the possibility that a drug sale had taken place. Cf. Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 469-471 (2018) (observation of suspiciously short drive in car after which one person exits car is circumstantial evidence that drug sale occurred during drive); Commonwealth v. St. George, 89 Mass. App. Ct. 764, 767-769, 768 n.7 (2016) (same).
While it is true that, as discussed supra, the officers' observation may have begun when the passenger was already inside the defendant's car, and thus they did not see the entirety of a classic "ride to nowhere," the short ride they did see reasonably caught their attention, and it added to probable cause. See Carrillo, 483 Mass. at 278, quoting Paquette, 440 Mass. at 132 ("probable cause 'is a relatively low threshold, requiring only sufficiently trustworthy information to instill in a reasonable person the requisite belief of criminality'"); St. George, 89 Mass. App. Ct. at 767-768 n.7 (though "short trip" was not true "ride to nowhere," and was "not dispositive of criminal activity," it was nonetheless indicative that crime had been committed).
The most significant information supporting probable cause was Panacopoulos's indication to Emery that he located "product," after finding the passenger with what he believed to be heroin, and after the companion told him "she knew that the passenger was buying heroin." Cf. Commonwealth v. Alvarado, 420 Mass. 542, 551-552 (1995) ("facts leading to [passenger]'s arrest" for drug crime supported probable cause to arrest driver for drug crime); Commonwealth v. Benitez, 37 Mass. App. Ct. 722, 723 (1994) (probable cause for warrantless seizure and for denial of motion to suppress after police saw, among other things: driver hand object to passenger, passenger leave car holding plastic bag in closed fist, passenger enter his own car, and passenger place bag in his pants).
Finally, additional factors contributing to probable cause included: (1) the officers' extensive experience with street drug crime, see Commonwealth v. Kennedy, 426 Mass. 703, 706 (1998) (court may rely on officer training and experience in probable cause analysis where "[o]ne could reasonably infer from the officer's testimony that he had compared the observed activity with a general type of street-level drug sale with which he was familiar, and found it consistent"); (2) the fact that much of the series of events occurred near, and in the driveway of, an address known for drug activity, see Commonwealth v. Santaliz, 413 Mass. 238, 239-241 (1992) ("encounter occur[ring] in [front of an address] known to the police as a place of high incidence of drug traffic" contributed to probable cause); and (3) the defendant's driving leading up to his stop, which objectively and in the eyes of a trained officer suggested he knew police were tailing him and wanted to evade them and discard contraband). Cf. Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 851 (2013) (driver's "furtive movements and apparent concealment of an unknown object" contributed to establishing reasonable basis for exit order and subsequent search of car).
Viewing the totality of the circumstances in Emery's knowledge, of which he had reasonably trustworthy information at the time of arrest, we conclude that probable cause justified the warrantless stop of the defendant's vehicle and the police's ensuing conduct. See Johnson, 461 Mass. at 49; Abdul-Alim, 91 Mass. App. Ct. at 168; Sweezey, 50 Mass. App. Ct. at 53. The judge properly denied the defendant's motion to suppress.
2. Opinion testimony on ultimate issue. The defendant argues that "[t]he admission of Detectives Panacopoulos and Emery's expert opinions that [the defendant] conducted a drug transaction during his drive around the block was an abuse of the trial judge's broad discretion." Yet, the judge at no time exercised his discretion to admit this testimony. To the contrary, he specifically ruled that these witnesses would only be permitted to testify "about their direct observations" and that they would "not be qualified as experts."
Nevertheless, at trial, the prosecutor reviewed each percipient police witness's training and experience in drug investigations and observations of the defendant's trip around the block. The prosecutor then asked Panacopoulos, "What did you believe had just occurred?" and the officer answered, "I believe a street-level narcotics transaction just occurred." The prosecutor later asked Emery, "Based on your experience, what did you believe had occurred?" and the officer answered, "We believed a drug transaction had occurred." At no point did the defendant object. Therefore, the testimony was admitted, not as a consequence of the judge's exercise of discretion, but only as a result of the defendant's failure to object. We review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002) (where issue not preserved for appeal, court determines whether claimed error produced substantial risk of miscarriage of justice).
The defendant argues that he "preserved review through a motion in limine, despite no contemporaneous objection." However, a contemporaneous objection is only excused where "the judge had already considered and rejected the same specific objection at the motion in limine stage." Commonwealth v. Grady, 474 Mass. 715, 719 (2016). Here, the judge did not reject the defendant's objection to the percipient police witnesses giving their opinions at trial. To the contrary, the judge agreed with the defendant that the percipient police witnesses should not be qualified as experts and should limit their testimony to their direct observations. Because what was "addressed and resolved at the motion in limine stage differ[ed] from what occur[ed] at trial," the defendant was required to object at trial to preserve his appellate rights. Id. at 720.
We first determine whether there was error. Id. at 298. The Commonwealth argues that the prosecutor's question, asking the police officers what they believed had just taken place, was aimed at explaining the subsequent actions of the police. While the prosecution may present evidence to "enabl[e] the jury to understand the complete occurrence," Commonwealth v. Ward, 45 Mass. App. Ct. 901, 903 (1998), it may not do so in a manner to elicit an opinion on the ultimate issue in the case. See Commonwealth v. Woods, 419 Mass. 366, 375 (1995). Despite the intent behind it, the prosecutor's question was likely to, and did, elicit an opinion on one of the ultimate issues in the case, whether a drug transaction had occurred during the ride around the block. Admission of the testimony was improper. See id. at 375 n.13 (in prosecution for drug distribution, admission of police witnesses' testimony, that interaction they observed between defendant and another individual constituted drug transaction, was error).
We now turn to the question of prejudice. See Randolph, 438 Mass. at 297-298. Despite the erroneously admitted testimony, there was ample properly admitted evidence for the jury to have found that a drug transaction had occurred. Immediately after the trip around the block, the passenger got out of the defendant's car clutching something in his hand. A police officer followed the passenger to a waiting truck. Upon the police officer identifying himself, the passenger threw something into the truck. The police then recovered three twists of heroin in the truck. The police also followed the defendant after the trip around the block and saw him slow down and pull over to the left side of the road before turning right. The defendant was stopped a short time later and had one hundred dollars in his possession, the approximate street value of three twists of heroin. Five minutes later, the police returned to the site where the defendant had pulled over to the left and found six additional twists of heroin which matched the appearance of the three twists in the passenger's truck. From this, the jury could have found that the defendant had sold three twists of heroin to the passenger and had discarded the six twists when he realized the police were following him.
Thus, in view of the strength of the Commonwealth's case, including the physical evidence of the drugs taken from the passenger, the cash recovered from the defendant, and the police officers' eyewitness testimony, it is unlikely that the improper testimony materially influenced the verdict. The unobjected-to opinion testimony here does not require reversal because we do not have "a serious doubt whether the result of the trial might have been different had the error not been made." Randolph, 438 Mass. at 297, quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
The defendant may well have refrained from objecting for tactical reasons. Prior to trial, when expressing his objection to the Commonwealth's expert witness, the defendant indicated that he expected the percipient police witnesses to be giving their opinions. During trial, he not only failed to object when the percipient police witnesses testified to an ultimate issue in the case, but he elicited the same opinions on cross-examination of each witness. When the judge expressed his concern about the testimony, indicating that it obviated the purpose of the expert witness, the defendant failed to request any remedy. Finally, in closing argument, the defendant sought to discredit the percipient police witnesses by highlighting the fact that they had prejudged the situation by assuming a drug deal from an innocuous trip around a block. See Randolph, 438 Mass. at 298 (in substantial risk of miscarriage of justice analysis, court considers whether defendant's failure to object was reasonable tactical decision).
Judgments affirmed.
By the Court (Sacks, Singh & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 17, 2020.