Opinion
19-P-234
01-07-2020
COMMONWEALTH v. Hang HEAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of possession of marijuana with intent to distribute. He was acquitted of two counts of carrying a firearm without a license and two counts of unlawful possession of ammunition. On appeal, he claims error in the denial of his motion to suppress physical evidence (firearms, ammunition, marijuana, and cash) found in the car that he was driving when he was stopped by police for a motor vehicle infraction. The defendant also contends that the trial judge erred in allowing in evidence opinion testimony from a State trooper, and challenges the sufficiency of the evidence. We affirm.
The defendant's conviction on the charge of operating a motor vehicle with a suspended license was placed on file. On appeal, the defendant makes no argument with respect to this conviction.
1. Motion to suppress. a. Background. We summarize the motion judge's findings of fact, supplementing with additional facts supported by uncontroverted testimony from the suppression hearing. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
On the evening of August 14, 2016, Lowell Police Officer Christopher Osborn was on patrol when he observed a vehicle driven by the defendant fail to stop at a stop sign. He activated the blue lights and siren on his cruiser, after which the defendant pulled over and stopped. The owner of the car, Morris Sanchez, was sitting in the front passenger seat. He did not have a valid driver's license. When Officer Osborn approached the car, he detected an odor of unburnt marijuana and observed piles of clothing in the back seat. Upon request, the defendant produced his license and Sanchez produced a registration.
Officer Osborn returned to his cruiser, checked the status of the defendant's license, and learned that it was suspended. He called for back-up, and Officer Todd Fenlon arrived soon thereafter. Both officers returned to the car, and the defendant was arrested for operating with a suspended license. As the defendant was getting out of the car, Officer Osborn observed damage to the interior of the passenger side door, which he believed was consistent with a possible hiding place for contraband. Officer Osborn then pat frisked the defendant and retrieved a small digital scale.
Meanwhile, Sanchez was informed that his car would be towed, and he was told that he was free to leave. He quickly did so. Although Sanchez testified at the hearing that he asked the police if he could contact his father to retrieve the car, and was told he could not do so and that he would be arrested if he did not leave, the judge did not credit this testimony.
After the defendant was arrested, Officer Osborn reported his observations to his supervisor, who then arranged for a drug-detection canine unit to be dispatched to the scene. While the officers waited for the arrival of the drug-detection canine unit and a tow truck, the defendant told Officer Fenlon that his license was not suspended. He stated that he had paperwork in his backpack which would show that the license was valid, and asked Officer Fenlon to get his backpack, which was on the back seat. Officer Fenlon did so and, at the defendant's direction, unzipped a side pocket and removed a warrant recall slip. Officer Fenlon explained to the defendant that the warrant recall slip did not establish that his license was valid. Officer Fenlon then closed the backpack and tossed it onto the rear seat. The backpack struck a soft-sided cooler that was sitting on top of a pile of clothing. The cooler was open; it tipped over, and its contents -- ice, beer, and a handgun -- spilled out. Officer Fenlon immediately secured the handgun and then found another handgun inside the cooler. Officer Osborn asked the defendant if he had a license to carry the firearms, and the defendant stated that he did not. Upon further searching the car, Officers Osborn and Fenlon found cash and approximately one ounce of marijuana.
Based on these facts, the motion judge concluded that the stop was lawful, the defendant was properly arrested for operating a motor vehicle after his license had been suspended, and that, because neither the defendant nor Sanchez had a valid driver's license, the car was subject to the Lowell Police Department's tow and inventory policy. The judge further ruled that the defendant gave Officer Fenlon permission to retrieve his backpack. Thereafter, "[w]hen the backpack was returned to the car, the handguns were discovered in plain view." Although the judge did not specifically address the discovery of the marijuana, the defendant concedes that the marijuana was discovered when the cooler was tipped over. In addition, the judge determined that the decision to tow the car and conduct an inventory search complied with the department's written policy, and was not a pretext for an investigative search.
b. Discussion. The defendant argues that his motion to suppress should have been allowed for two reasons. First, he claims that it was unnecessary to have the car towed because Sanchez offered to contact his father to remove the car. If the decision to tow the car had not been made, he argues, the evidence would not have been discovered. However, the motion judge explicitly rejected Sanchez's testimony that he offered to contact his father. Instead, the judge implicitly credited Officer Osborn's testimony that Sanchez left the scene as soon as he was told that the car would be towed. Given these findings, which have not been challenged as clearly erroneous, the argument that the car should not have been towed fails.
The defendant's reliance on Commonwealth v. Oliveira, 474 Mass. 10 (2016), is misplaced. In that case, the car was parked lawfully in a department store parking lot. Id. at 11. The defendant and the driver of the car were both arrested, the driver asked the police officers if he could phone his girlfriend, the registered owner of the car, to ask her to retrieve it. Id. at 12. The Supreme Judicial Court held that, on the totality of the circumstances, (the car was safely and lawfully parked in a parking lot and that the driver of the car had offered a lawful and practical alternative to having the car towed), the seizure of the car and the subsequent inventory search of the car were unjustified. Id. at 15-16. Here, the car was stopped on the road, not in a parking lot, and Sanchez, the owner of the car, did not have a valid driver's license. More importantly, as we have noted, the judge did not credit Sanchez's testimony that he had asked whether he could phone his father to come retrieve the car.
Second, the defendant argues that the plain view doctrine does not apply because the police did not discover the evidence inadvertently. "Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Commonwealth v. Balicki, 436 Mass. 1, 8 (2002), quoting Commonwealth v. D'Amour, 428 Mass. 725, 730-731 (1999). In addition, "in order for the plain view doctrine to apply, ‘[o]ur cases also have required that the police come across the item inadvertently.’ " Balicki, supra, quoting D'Amour, supra at 731. The defendant claims that Officer Fenlon intentionally knocked over the cooler and that, therefore, the marijuana was not discovered inadvertently. However, the motion judge found otherwise. By concluding that the firearms inside the cooler were discovered in plain view, the judge implicitly found that the cooler was inadvertently toppled when Officer Fenlon tossed the backpack onto the back seat. The tossing of the backpack was not a search. Consequently, there was no error in concluding that the marijuana (and firearms) were properly seized under the plain view doctrine.
The motion judge did not address the Commonwealth's alternative argument that the marijuana would have been inevitably discovered during the inventory search of the car. We need not address this argument because we conclude the seizure was lawful under the plain view doctrine.
2. Admission of expert opinion testimony. Prior to trial, the Commonwealth filed a motion in limine seeking permission to call Sergeant Edward Troy of the Massachusetts State Police as an expert witness on street-level distribution of narcotics. Defense counsel filed a motion to exclude the testimony. The motion challenged Sergeant Troy's qualifications on the grounds that, inter alia, his training and experience occurred prior to the decriminalization of marijuana in 2008. The Commonwealth's motion was allowed, and Sergeant Troy testified at trial. He expressed the opinion that possession of over an ounce of marijuana, $1,027 in cash, a digital scale, and two firearms, was consistent with the intent to distribute.
At trial, a scientist from the State Police crime laboratory testified that the marijuana seized weighed approximately one and one-quarter ounce. The police report indicated that $1,027 in cash had been retrieved.
"A trial judge has wide discretion to qualify an expert witness and to decide whether the witness's testimony should be admitted." Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). We conclude that discretion was not abused here. Sergeant Troy gave an opinion within his area of expertise. At the time of trial, he had been a State trooper for approximately thirty-two years and had spent thirteen years working in the Suffolk County narcotics task force, seven years conducting narcotics investigations in the Middlesex County District Attorney's Office, and several years in the Attorney General's Office investigating narcotics in relation to organized crime and gangs. Sergeant Troy had also undergone a number of courses and training related to the transportation, identification, and investigation of narcotics. In his years of street-level work, Sergeant Troy had made or been involved in thousands of drug-related arrests, made undercover purchases of narcotics, and become familiar with the packaging, value, and distribution of street-level narcotics.
Furthermore, there is no basis for concluding, as the defendant claims, that Sergeant Troy's expertise was diminished by the decriminalization of the possession of marijuana in quantities less than one ounce. In any event, the question whether Sergeant Troy's opinion was based on "outdated" information goes to the weight of his opinion and not to his qualifications. See Commonwealth v. Crouse, 447 Mass. 558, 569 (2006) ("Where an expert has been determined to be qualified, questions or criticisms as to whether the basis of the expert's opinion is reliable go to the weight, and not the admissibility, of the testimony"). See also Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) ("Of course, if the judge rules the opinion evidence admissible, that ruling is not final on the reliability of the opinion evidence, and the opponent of that evidence may challenge its validity before the trier of fact").
Lastly, contrary to the defendant's assertion, Sergeant Troy's testimony was grounded in the evidence and did not exceed the scope of expert testimony by expressing a point of view on the issue of guilt or innocence. See Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457-458 (2006) ("Opinion testimony may ‘touch’ on an ultimate issue in the case, ... if couched appropriately, but such testimony can never directly speak to, or express a point of view, on the issue of guilt or innocence").
3. Sufficiency of the evidence. The defendant claims that his motion for a required finding of not guilty on the charge of possession of marijuana with intent to distribute should have been allowed because the Commonwealth failed to prove that he knew the marijuana was in the car and that he intended to exercise control over it. We conclude otherwise.
The Commonwealth's theory at trial was that the defendant and Sanchez were working together to sell marijuana. The evidence presented was largely the same as that presented at the hearing on the motion to suppress. The marijuana and firearms were in a cooler on the back seat of the car. The police found approximately $958 in the pockets of a pair of blue jeans in the back seat, which the Commonwealth conceded most likely belonged to Sanchez. An additional $80 was found in the "sunglasses compartment" in the front seat area of the vehicle. The defendant had a digital scale in his pocket, and the car smelled of fresh marijuana.
"In reviewing the denial of a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth in order to determine whether the evidence was sufficient to satisfy a rational trier of fact of each element of the offense beyond a reasonable doubt." Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting Commonwealth v. Brown, 401 Mass. 745, 747 (1988). Because the defendant was not in actual possession of the marijuana, the Commonwealth rested on a theory of constructive possession. To prove constructive possession, the Commonwealth must show the defendant's knowledge of the presence of the contraband, "coupled with the ability and intention to exercise dominion and control." Sespedes, supra. "The Commonwealth may prove that the defendant had knowledge of the contraband by circumstantial evidence, if the evidence warrants a reasonable inference to that effect" (citation omitted). Id. A defendant's presence in the area of the contraband, when "supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency" (quotation and citation omitted). Commonwealth v. Acosta, 416 Mass. 279, 284 (1993).
Here, the defendant was not merely present in an area where drugs were found. Rather, he was in a car that smelled of unburnt marijuana, large amounts of cash were found in the clothing on the back seat and sunglasses compartment, and more significantly, the defendant had a digital scale in his pocket. See Commonwealth v. Richardson, 479 Mass. 344, 362 (2018) (holding that evidence including "digital pocket scale" sufficed to show possession with intent to distribute); Commonwealth v. Nelson, 90 Mass. App. Ct. 594, 597 (2016) (evidence in addition to proximity to cocaine, including scale, established sufficiency of evidence of constructive possession); Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 413 (2013) (evidence sufficient to prove constructive possession and intent to distribute included "most particularly, a digital scale"). It is of course possible, as the defendant argued at trial, that Sanchez was selling marijuana without the defendant's knowledge. However, the Commonwealth "does not need to exclude every reasonable hypothesis of innocence so long as the record as a whole supports a conclusion of guilt, beyond a reasonable doubt." Commonwealth v. Carmenatty, 37 Mass. App. Ct. 908, 910 (1994). These facts were sufficient for the jury to find the defendant's guilt beyond a reasonable doubt.
Judgment affirmed.