Opinion
No. 12–P–395.
2013-07-25
COMMONWEALTH v. Aldo SOTO.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Aldo Soto, was convicted by a jury of three firearm charges. On appeal, the defendant alleges error in five respects: (1) the denial of his motion to suppress, (2) an insufficient nexus between drug distribution and his vehicle, (3) duplicative convictions, (4) flawed jury instructions, and (5) the improper admission of certain testimony. We agree that one of the convictions was duplicative. We affirm the remaining convictions.
1. Background. The defendant was arrested on December 2, 2010, after the police observed a passenger, who was suspected of effecting a drug transaction, enter the defendant's vehicle. After stopping the defendant, the police ordered both occupants out of the vehicle, arrested them, and recovered a firearm from the center console of the car. The defendant was charged with various drug and firearm offenses. The defendant moved to suppress both the firearm and the statements he made while under arrest, arguing that the officers did not have probable cause to arrest him.
The motion was denied. The case proceeded to trial only on the three charges related to the firearm.
On appeal, the defendant does not challenge the portion of the order denying the motion to suppress his statements.
The Commonwealth filed a nolle prosequi on all the charges involving a class B substance (counts 1–3).
2. Discussion. a. Motion to suppress. The defendant claims the motion judge's denial of the portion of his motion to suppress related to the firearm was error because the officers did not have probable cause to arrest him. In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Here, the motion judge relied on seven factors to support her denial of the defendant's motion to suppress, three of which the defendant specifically challenges; the Commonwealth concedes that two of those contested factors are not supported by the record.
The finding that the registered owner of the vehicle was a convicted felon is also incorrect but not dispositive. See note 4, infra.
Specifically, the judge's conclusions that (1) the officers made drug arrests in Mission Hill, and (2) a participant of the alleged drug transaction stated, “Why didn't you arrest the other two guys,” before being placed under arrest are not supported by the record.
The facts supporting the Commonwealth's claim of probable cause are briefly summarized as follows. The police received complaints about ongoing drug transactions in the Mission Hill section of Boston and conducted surveillance of an alleged drug house. As Officers Steven Smigiliani and Joseph Keaveney were concluding their surveillance, they observed a male (one Scott Mason) pacing back and forth and then meeting with Elisaul Sanchez. After a brief encounter that continued from the street into a nearby store, the officers observed Sanchez leave the area and get into the defendant's idling white Acura. Prior to this time, neither Smigiliani nor Keaveney had seen the defendant's vehicle. Mason was then stopped by different police officers and an officer observed a plastic bag that he believed contained crack cocaine. Mason was arrested. The information of Mason's arrest was transmitted by radio to Officers Smigiliani and Keaveney, who then elected to pull over the defendant's vehicle. By the time the officers effected the stop, they had been informed that the registered owner of the vehicle was out on parole.
The information was only that the owner was out on parole, not, as the judge stated, a “felon.”
Immediately upon approaching the vehicle, the officers arrested both the defendant and Sanchez. See Commonwealth v. Wren, 391 Mass. 705, 707 (1984). The officer did not request identification from either party.
We note that it would have been more advantageous to the Commonwealth's case if the police had confirmed the identity of the defendant before arresting him. It is not unlawful and indeed, very common, to have another licensed person drive someone else's vehicle.
When applying the principles of probable cause to the facts in this case, we agree that probable cause—albeit thinly supported—nevertheless existed.
Police officers need not directly observe an exchange of drugs to possess probable cause. See Commonwealth v. Kennedy, 426 Mass. 703, 708–709 (1998). We acknowledge that the absence of such observation weakens the Commonwealth's case. Contrast Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011). However, the police officers' experience in drug transactions, see Commonwealth v. Hill, 49 Mass.App.Ct. 58, 60 (2000), the drugs found on Mason, the criminal record of the owner of the vehicle, see Commonwealth v. Rouseau, 61 Mass.App.Ct. 144, 152–153 (2004), and the presence of Sanchez in the passenger seat,
“[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Stephens, 451 Mass. 370, 385 (2008), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).
provided the officers with probable cause to stop the vehicle and arrest Sanchez.
The availability of the defendant to provide Sanchez with transportation from the scene of the suspected drug transaction also permits a reasonable inference in support of a probable cause determination. See Commonwealth v. Zanetti, 454 Mass. 449, 461–469 (2009).
See Commonwealth v. Santaliz, 413 Mass. 238, 241–242 (1992).
This case, however, goes beyond mere presence. The defendant's reliance on Commonwealth v. Levy, 459 Mass. at 111, and Commonwealth v. Griffin, 79 Mass.App.Ct. 124, 127–129 (2011), is misplaced. In Griffin, supra, the defendant was a mere passenger and no additional testimony linked him to drugs. This is distinguishable from the instant case, as the defendant here was not only the driver but made statements in relation to the gun found in the vehicle.
The defendant asserts that he was profiled and probable cause of his participation in drug activity was not established. “A person's proximity, without more, to others independently suspected of criminal activity does not establish probable cause to search that person.” Commonwealth v. Sampson, 20 Mass.App.Ct. 970, 971 (1985).
As the police had probable cause, at least as to the passenger, the search of the vehicle for additional contraband was permissible. See Commonwealth v. Madera, 402 Mass. 156, 161 (1988); Commonwealth v. Eggleston, 453 Mass. 554, 554 (2009). See also Commonwealth v. Elizondo, 428 Mass. 322, 324–325 (1998). Notwithstanding the premature arrest of the defendant, the seizure of the gun from the center console of the vehicle was proper.
b. Automobile exception. As we concluded that the police demonstrated probable cause to search the vehicle on the basis of a search incident to the lawful arrest of the passenger, we need not discuss the question whether the police met the requisite factors for a warrantless search under the automobile exception. See Commonwealth v. Stephens, 451 Mass. 370, 386 (2008).
c. Duplicative offense. In light of the reasoning of Commonwealth v. Johnson, 461 Mass. 44, 52–53 (2011), and the particular circumstances presented here, the convictions of both possession of ammunition under G.L. c. 269, § 10( h ), and possession of a loaded firearm under G.L. c. 269, § 10( n ), are duplicative. The judgment on the count of unlawful possession of ammunition must be vacated.
d. Excessive testimony. The defendant claims that the admission of evidence of the events that occurred prior to the stop was unduly prejudicial, as well as irrelevant.
At the outset, the prosecutor informed both defense counsel and the judge of her intention to present a vivid description of the events that occurred prior to the officer's stop of the defendant's vehicle. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992) (noting that investigating officer should be allowed “some explanation of his presence and conduct”). As no objection was made, we review the issue only to determine whether the testimony, if admitted in error, created a substantial risk of the miscarriage of justice. See Commonwealth v. Fowler, 431 Mass. 30, 42 (2000).
In light of our discussion, the judge could properly (as he did) deny the defendant's request for a specific jury instruction regarding these events.
In Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006), the Supreme Judicial Court held that “evidence of uncharged criminal acts or other misbehavior is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes” (emphasis added). Such evidence may properly be admitted to “set the stage.” See Commonwealth v. D'Ambra, 357 Mass. 260, 264 (1970). But see Commonwealth v. Rosario, 430 Mass. 505, 509 (1999) (risk of “high probability of misuse” of testimony to explain police action).
The Commonwealth presented seven police officers as witnesses, five of whom testified to the circumstances of the arrest. See Commonwealth v. Valentin, 55 Mass.App.Ct. 667, 673–674 (2002); Commonwealth v. Rupp, 57 Mass.App.Ct. 377, 383–384 (2003).
The testimony here, arguably excessive, perhaps could have unfairly prejudiced the defendant by connecting him to drugs,
even though the Commonwealth had dropped those charges.
As noted by defense counsel, approximately one-half of all the officers' testimony referred to drugs.
Defense counsel cross-examined the witnesses extensively in an attempt to distance the defendant from the prejudice of being a drug dealer or a coventurer.
We think that in all the circumstances, however, the testimony was not sufficiently toxic to cause us to reverse the defendant's convictions. “Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice”. Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986). In an apparent effort to distance himself from any drug activity, the defendant maintained that the only offense in which he might have been involved pertained to the gun.
Later, at the police station, the defendant stated, “[T]he gun's mine.” Deciding as we do, we need not consider whether under a joint venture theory an inference permissibly may be drawn that the defendant was a “lookout” or “getaway driver.”
At that time the gun was recovered, the defendant stated: “I got nothing on me, ... you already have what I had in the car, the gun.”
3. Jury instructions. Passing the question whether a challenge to the jury instructions has been properly preserved, see Commonwealth v. Randolph, 438 Mass. 290, 293–294 (2002), we are confident that the judge's instructions sufficiently informed the jury as to the relevant and pertinent legal concepts. See Commonwealth v. Loadholt, 456 Mass. 411, 426–427 (2010).
In any event, there was abundant evidence adduced that proved the items in question were ammunition, and there was equally strong evidence that the firearm was, in fact, loaded with at least five rounds of .38 caliber ammunition. In short, the judge's instructions were neither flawed nor inadequate.
4. Conclusion. On the count of the complaint charging the defendant with unlawful possession of ammunition under G.L. c. 296, § 10( h ), the judgment is vacated, the verdict is set aside, and that count of the complaint is to be dismissed. The remaining judgments of conviction are affirmed, but the sentences on those convictions are vacated, and the matter is remanded for such resentencing as the judge deems appropriate. See Commonwealth v. Ruggerio, 32 Mass.App.Ct. 964, 966 (1992).
So ordered.