Opinion
16-P-790
06-30-2017
COMMONWEALTH v. Germain ALMEIDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of one count of distribution of cocaine, subsequent offense. On appeal, the defendant argues that his motion to suppress was improperly denied and that the judge erred in excluding a written witness statement as hearsay. We affirm.
The trial was bifurcated. A jury convicted the defendant of the distribution charge, and he waived his right to a jury for the subsequent offense portion of trial.
Background. a. Motion hearing. The following facts were derived from evidence presented to the motion judge. In February, 2014, Springfield police were conducting an ongoing investigation into suspected drug activity at a certain residence. Detective Mark Templeman was a part of the investigation, and testified that he once purchased narcotics from Samantha Hoppe, a resident of the apartment. An unidentified person was also present in the apartment for this sale, known to the detective only as "T."
On the night of February 25, 2014, Detective Templeman called Hoppe and asked for "another hundred" from "T." When Detective Templeman entered the house, Hoppe told him she was unable to get in touch with "T" but had other contacts that she would call. He gave Hoppe $100 and observed her go outside, where a surveilling officer testified that he saw her enter a vehicle with the money in her hand.
"T" was also under investigation for distribution of crack cocaine.
Two other officers, operating in an undercover police vehicle, followed that vehicle as Hoppe rode in the passenger seat with the defendant driving. The vehicle drove around the block and then stopped back at the house under surveillance, with Hoppe then exiting the car. The two officers continued to follow the defendant and conducted an investigatory stop of the vehicle to obtain an identification of the driver. While the officers did not observe the defendant make any traffic violations, as part of the ruse, the defendant was told that he had been pulled over for speeding. The officers performed a records check after obtaining the defendant's license and registration, returned those documents, and allowed the defendant to leave. Using information gathered from this stop, police produced a picture of the defendant that was shared with officers involved in the investigation.
On March 6, 2014, Detective Templeman conducted another controlled buy at the house. He waited on a couch while Hoppe contacted a third party. Shortly thereafter, the defendant entered the apartment. Detective Templeman handed Hoppe another $100 and she entered the kitchen with the defendant, whom the officer recognized from the picture previously shown to him. Dectective Templeman observed the defendant accept the money from Hoppe and hand her several small objects. The defendant then left the apartment, and Hoppe gave Detective Templeman those small objects, later confirmed to be cocaine.
The defendant moved to suppress all evidence stemming from his initial identification by police, challenging the traffic stop as unsupported by reasonable suspicion or probable cause. After hearing the testimony of Detective Templeman, three of the surveilling officers, and the defendant's fiancee, the judge credited the testimony of the Commonwealth's witnesses and noted the importance of the collective knowledge doctrine to his ultimate decision to deny the motion.
b. Trial. The same four police officers who testified at the motion hearing testified for the Commonwealth at the trial. A drug lab expert also testified for the Commonwealth, while the defendant and his retained private investigator testified for the defense. The defendant's only challenge stemming from the trial was the judge's preclusion of a written witness statement prepared by Hoppe after meeting with the defendant's private investigator. At an earlier voir dire, Hoppe had invoked her Fifth Amendment to the United States Constitution right against self-incrimination, so defense counsel sought, given her now unavailability, to admit the statement by Hoppe. Her statement was signed and dated by both her and the private investigator; it suggested that the defendant was a customer of hers, and that each time he was seen with her he was purchasing from her, not selling to her, small amounts of drugs to feed his addiction born from a previous accident he had suffered. The defendant sought to admit this hearsay evidence as a statement against Hoppe's penal interest. Citing the lack of "corroborating circumstances" regarding the trustworthiness of Hoppe's statements, the judge excluded the statement.
Discussion. a. Motion to suppress. The defendant appeals the denial of his motion to suppress, arguing that the initial stop of his car was unwarranted and therefore anything stemming from that initial identification constituted fruit of the poisonous tree. We disagree.
"In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting from Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 133 S. Ct. 443 (2012). We "leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).
Having reviewed the record from the motion to suppress, we accept the judge's findings of fact and will conduct our own review of the application of law to those facts. A police stop of a vehicle driving on a public road is a seizure and must comply with constitutional principles. See Commonwealth v. Rodriguez, 472 Mass. 767, 773 (2015). Therefore, the stop of the defendant's vehicle must have been justified by a "reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime." Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). Reasonable suspicion must be based on "specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a ‘hunch.’ " Ibid., quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Bearing in mind that, under the collective knowledge doctrine, when officers are engaged in a cooperative effort, the knowledge of one officer is imputed to the other officers, we conclude that the motor vehicle stop was supported by reasonable suspicion. See Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480-481 (2007). The long-running surveillance on the house where Detective Templeman was conducting a controlled buy suggested that Hoppe acted as an intermediary: taking the money from the buyer, exchanging that money with a third party for narcotics, and delivering those narcotics to the buyer. As such, the collective knowledge of Detective Templeman that Hoppe had received money from Detective Templeman, exited the residence with money in hand, and was seen entering the car driven by the defendant was sufficient to create a reasonable suspicion that the defendant and Hoppe had just committed a crime before he dropped her back off. The stop, notwithstanding the ruse, was therefore warranted, and we reject the defendant's argument that all evidence stemming from that identification should have been suppressed.
b. Preclusion of statements. The defendant argues that the written statement Hoppe gave to his private investigator should have been admitted as a statement against her penal interest. "An out-of-court statement ‘is admissible under the penal interest exception to the hearsay rule if (1) the declarant's testimony is unavailable; (2) the statement so far tends to subject the declarant to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the statement, if offered to exculpate the accused, is corroborated by circumstances clearly indicating its trustworthiness.’ " Commonwealth v. Carriere, 470 Mass. 1, 17 (2014), quoting from Commonwealth v. Charles, 428 Mass. 672, 677 (1999). The first two prongs of that weighing process need not be discussed, as the judge's decision hinged on the third prong. In weighing the trustworthiness of a statement against penal interest, a judge "should assess ‘both the credibility of the declarant and the credibility and the probativity of his statement.’ " Commonwealth v. Drew, 397 Mass. 65, 75 (1986), quoting from Tague, Perils of the Rulemaking Process, 69 Geo. L.J. 851, 971 (1981).
A preserved, purported trial error such as this is reviewed for prejudicial error. First, we determine whether an error was made, and if so, we consider "whether any error was harmless beyond a reasonable doubt." Commonwealth v. Tague, 434 Mass. 510, 515-516 (2001). We conclude that there was no error in the judge excluding this evidence, finding its trustworthiness was not corroborated. Factors to consider in determining whether a statement is corroborated include: "the timing of the declaration and the relationship between the declarant and witness; the reliability and character of the declarant; whether the statement was made spontaneously; whether other people heard the out-of-court statement; whether there is any apparent motive for the declarant to misrepresent the matter; and whether and in what circumstances the statement was repeated" (citations omitted). Drew, supra at 76.
In this case, similar to Drew, the only corroboration of Hoppe's statement, that the defendant was addicted to pain medication and was a buyer rather than a distributor, could come from the defendant. See id. at 77. Hoppe's statements were made on September 6, 2015, ten months after the defendant was indicted, and were made to the defendant's private investigator. Further, in a letter addressed to Detective Templeman and dated September 30, 2015, Hoppe wrote as follows : "I could use your help and I no [sic ] you could use mine on the Jermaine selling crack on ... Feb. 25 and on March 6. I no [sic ] the case is do [sic ] for trial very soon. My case is done but now I want to do a revise and revoke if you care to help me and get the other person, Jermaine.... I will tell you or whoever the whole truth." It was in the judge's discretion to determine whether Hoppe lacked trustworthiness and the record indicates an obvious contradiction between her two statements. Further, her letter to Detective Templeman offering to tell "the whole truth" fundamentally undercuts any reliability her statement to the private investigator may have had. Accordingly, there was no error in excluding her statement. See ibid.
She was incarcerated at the time of the letter.
The judge noted the contradiction that stemmed from this letter in considering the other statement's trustworthiness, noting that it "indicated just the opposite" of trustworthiness.
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Judgment affirmed.