Opinion
No. 15–P–1130.
11-30-2016
COMMONWEALTH v. Johanna VILLAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of trafficking in cocaine. On appeal, she claims that the motion judge erred in denying her motion to suppress and that the Commonwealth made an improper comment on her postarrest silence. We affirm.
1. Motion to suppress. The defendant claims that the motion judge erred in denying her motion to suppress evidence due to an insufficient nexus between the drugs sought and the red Toyota Camry identified in the search warrant, as well as lack of a justification for the "any person present" warrant. We disagree.
The affidavit presented in support of obtaining a search warrant "must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises." Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). Here, the motion judge credited the affidavit which described three properly conducted controlled buys. The first of the three buys was done through the brown Nissan Maxima. The subsequent two buys were conducted through the use of the red Toyota Camry. Prior to obtaining the search warrant for the red Toyota Camry, police had stopped and searched the brown Nissan Maxima; they recovered sixty-nine grams of cocaine. This information alone provided more than a sufficient nexus to search the red Toyota Camry.
The defendant's argument that there was no justification for the issuance of an "any person present" warrant also fails. In evaluating the issuance of an any person present warrant, "several facts are of particular relevance: the premises or area to be searched are small, confined and private; the nature of the criminal activity is such that the participants (in general) constantly shift or change so that it is, practically, impossible for the police to predict that any specific person or persons will be on the premises at any given time; and the items specifically described in the warrant as the target of the search are of a size or kind which renders them easily and likely to be concealed on the person." Commonwealth v. Smith, 370 Mass. 335, 344–345 (1976).
During one of the controlled buys involving the Toyota Canary, the driver conducting the transaction was accompanied by an Hispanic female. During the transaction with the brown Nissan Maxima, there was an Hispanic male in the vehicle with the man executing the transaction. Due to the nature of the transactions, being from within a vehicle and with multiple persons present on more than one occasion, there was probable cause to believe that any person physically present within the red Toyota Camry was involved with the illegal drug transactions. See id. at 339.
2. Postarrest silence. The defendant claims that the prosecutor improperly commented on her postarrest silence during closing argument in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. She also claims that the judge erred in failing to give an adequate curative instruction to correct this reference. We disagree.
The defendant's reliance on Doyle v. Ohio, 426 U.S. 610 (1976), is misplaced. In Doyle, the United States Supreme Court held that the due process clause of the Fourteenth Amendment prohibits use of a defendant's post-Miranda silence against him as impeachment evidence. Id. at 618. The Court determined the use to be fundamentally unfair due to the implicit assurance of the Miranda warnings that the defendant's silence will not be used against the defendant. Ibid.
Here, in contrast, the defendant did not remain silent after having been informed of her Miranda rights. "[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." Commonwealth v. Lodge, 89 Mass.App.Ct. 415, 418–419 (2016), quoting from Anderson v. Charles, 447 U.S. 404, 408 (1980). The defendant told officers that she took the cocaine and put it in her pocket because she did not want to get in trouble. The defendant made a motion in limine to exclude the statements from admission in evidence. Although these statements were not suppressed, the prosecutor stated that she and defense counsel had reached an agreement that the statements would not be introduced.
When the defendant testified at trial, she stated that the driver shoved the drugs into her pocket when police arrived, and that she did not tell police because she was afraid of the driver. In this manner, the defendant sought to take advantage of the Commonwealth's stated intention not to refer to the post-arrest statements and to exploit this by changing her story. "The defendant had a constitutional right to silence, not a right to tell a story and then avoid explaining crucial omissions by stating they were an exercise of the right to silence. The omission of facts from one statement that are contained in another statement is not silence within the meaning of Doyle. " Commonwealth v. Sosa, 79 Mass.App.Ct. 106, 113 (2011). As the defendant was not silent after having received her Miranda warnings, the prosecutor was within her right to impeach the defendant based on her post-Miranda statements.
The defendant does not argue that her postarrest statements would have been suppressed had the prosecutor not indicated her intention not to use them.
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Furthermore, there was no objection to the prosecutor's questioning as to the defendant's testimony regarding her story. However, after the prosecution's closing argument, the defendant objected to "a comment on [the defendant's] silence at the police station." The judge gave a curative instruction that was more than the defendant was entitled to because she was not in fact silent after having received her Miranda warnings. Because the defendant waived her right to remain silent by making statements post-Miranda, there was no improper use of postarrest silence and therefore no error. See Lodge, supra at 419.
Judgment affirmed.