Opinion
14-P-1598
12-10-2015
COMMONWEALTH v. JAMIE LOUIS JEUNE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a jury trial in the District Court, the defendant, Jamie Louis Jeune, was convicted of possession with intent to distribute a class A substance (heroin), a class B substance (cocaine), and a class D substance (marijuana); corresponding school zone violations; carrying a firearm without a license; and carrying a loaded firearm. On appeal, he challenges the denial of his pretrial motion to suppress, the sufficiency of the evidence supporting his convictions, and certain evidentiary rulings. We affirm.
The defendant was also found responsible for a marked lanes violation. A charge of simple possession of a class D substance was dismissed at the Commonwealth's request.
1. Motion to suppress. The relevant facts, as set forth at the motion hearing, and credited by the judge, are as follows. Shortly after midnight on July 30, 2011, Cambridge police Officer Brandon Pasco observed a motor vehicle cross the double yellow line on Memorial Drive and initiated a stop. The vehicle continued forward for a couple of blocks before pulling over, during which time Pasco observed the driver's arms and shoulders move back and forth and downward and the vehicle swerve from side to side. Pasco called for back-up first, and then approached the vehicle. The defendant was sitting in the driver's seat and another individual was in the front passenger seat. Pasco asked the defendant to get out of the vehicle. As he did so, the defendant grabbed, with both hands, his right side while turning away from the officers towards the inside of the vehicle. Pasco and a second officer immediately grabbed the defendant, assisted him out of the vehicle, and placed him in handcuffs. Pasco then searched the area the defendant had grabbed and discovered quantities of cocaine and heroin. The passenger also got out of the vehicle, was searched and released, and then left the scene. At some point during the stop, the officers contacted the State police for assistance with a canine.
After the defendant was placed in handcuffs, Pasco observed a bulge at the exact point where the defendant had been reaching.
A trooper arrived with a canine who conducted a sniff of the vehicle. The dog showed a lot of interest in the interior of the vehicle and had a change of behavior near the trunk, but did not alert significantly to any particular area. In accordance with Cambridge police procedure, because nobody was available to drive the vehicle away from the scene, it was subject to an inventory search and tow. Upon opening the trunk, Pasco observed an open backpack containing a visible firearm and two glass containers of marijuana. After the search was complete, one of the officers completed a form related to the inventory and tow of the vehicle under the applicable Cambridge police department policy. The Commonwealth introduced in evidence the written policy and the completed "Cambridge Police Vehicle Tow & Inventory Form." At the close of the hearing, the judge found that the exit order and the search of the defendant were proper due to concerns for officer safety, and that the discovery of the contraband in the trunk was made in the course of a valid inventory search. We agree.
Before issuing an exit order during a routine traffic stop, a police officer must have an objectively "reasonable belief that the officer's safety, or the safety of others, is in danger." Commonwealth v. Stampley, 437 Mass. 323, 325-326 (2002), and cases cited. The standard was met here, where the vehicle did not immediately stop and Pasco observed the driver make suspicious movements toward the floor of the vehicle, which was swerving from side to side. See id. at 327. The subsequent search of the defendant was likewise justified due to the officer's reasonable concern that the defendant was concealing a weapon. See Commonwealth v. Robbins, 407 Mass. 147, 151-152 (1990); Commonwealth v. Torres, 433 Mass. 669, 674 (2001).
As to the propriety of the inventory search, the defendant impermissibly raises the issue for the first time on appeal. See Commonwealth v. Lodge, 431 Mass. 461, 473-474 (2000). Regardless, the search of the vehicle's trunk was consistent with the police department's written policy where, on the record before the motion judge, no driver was available to remove the vehicle from Memorial Drive, a heavily traveled roadway. See Commonwealth v. Ellerbe, 430 Mass. 769, 776-777 (2000). Nor was the inventory search an impermissible pretext for an investigative search. Notwithstanding the appearance of the drug-sniffing dog, with no apparent alternatives to towing, an inventory search of the vehicle was inevitable. See Commonwealth v. O'Connor, 406 Mass. 112, 115-119 (1989); Commonwealth v. Horton, 63 Mass. App. Ct. 571, 576-577 (2005).
The defendant points to the case of Commonwealth v. Ortiz, 88 Mass. App. Ct. 573 (2015). Unlike in that case, here, the initial stop of the vehicle and subsequent arrest of the defendant were not a pretext to the eventual impoundment of the vehicle.
2. Sufficiency of the evidence. In addition to evidence consistent with that presented at the motion hearing, at trial, the Commonwealth presented the testimony of a narcotics expert, who detailed evidence about the individual packaging of the cocaine and heroin, that $1,700 in cash were found on the defendant's person, that two cellular telephones were found in the vehicle, and that a scale and sandwich bags were found in the backpack along with the marijuana and the firearm. The defendant challenges the evidence of his constructive possession of the firearm and marijuana, and his intent to distribute the cocaine and heroin.
While presence alone is not enough to prove knowledge or the ability and intention to exercise control over an item, "presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.'" Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). "Proof of possession and knowledge may be established by circumstantial evidence and the inferences that can be drawn therefrom." Commonwealth v. Gouse, 461 Mass. 787, 795 (2012).
Here, despite the presence of another person in the vehicle, it was the defendant who was driving and who possessed the keys to open the vehicle's trunk. The narcotics expert testified that drug dealers commonly carry firearms for security. The backpack that contained the firearm also contained marijuana and other paraphernalia associated with drug dealing; drugs packaged for sale and a large sum of money were found on the defendant's person. A reasonable link was thus established between the defendant and the items found in the trunk. See generally Commonwealth v. Cannon, 449 Mass. 462, 470 (2007) (noting frequent connection between guns and drug dealing). The defendant also acted suspiciously during and following the vehicle stop. Viewed in the light most favorable to the Commonwealth, ample circumstantial evidence was presented to support the jury's inference of constructive possession of the items in the trunk. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The Commonwealth likewise presented sufficient evidence to infer intent to distribute the cocaine and the heroin. The narcotics expert testified that the form of packaging and packaging materials (scale and bags), the variety of drugs recovered, the firearm, the cellular telephones, the absence of items used to ingest those drugs, and the cash recovered from the defendant's person, all were consistent with an intent to distribute. See Commonwealth v. Myers, 82 Mass. App. Ct. 172, 178 (2012), and cases cited.
3. Evidentiary issues. The narcotics expert's testimony did not impermissibly move beyond the realm of the hypothetical. See Commonwealth v. MacDonald, 459 Mass. 148, 162-163 (2011). Nevertheless, even if the testimony crossed the line, due to the strength of the Commonwealth's case, we are satisfied that no prejudice or substantial risk of a miscarriage of justice occurred.
Nor, as a matter of fairness, was it error to preclude the defendant from presenting a Bowden defense as to the lack of deoxyribonucleic acid (DNA) testing on the firearm when the defense did not respond to an authorization sent by the Commonwealth that would have allowed it to conduct such testing. Regardless, no prejudice flowed to the defendant. Rather, had it been revealed that it was the defendant who refused the DNA testing, any admitted evidence on the issue would have favored the Commonwealth's case.
See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
Judgments affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 10, 2015.