Opinion
15-P-504
03-01-2016
COMMONWEALTH v. EDWIN ALVARADO.
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
The defendant, Edwin Alvarado, appeals from his conviction in the Superior Court of distribution of cocaine, in violation of G. L. c. 94C, § 32A(c). He argues that the motion judge erred in denying his motion to suppress evidence and that the prosecutor improperly commented on the "beyond a reasonable doubt" standard in closing argument at trial. We affirm.
Motion to suppress. The defendant contends that the motion judge erred in denying the motion to suppress because the arresting officer saw only hand motions, not an exchange of an object for money, and that even together with the officer's experience and complaints of drug activity in the area, probable cause to arrest was not present. We disagree.
"Probable 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. Kennedy, 426 Mass. 703, 708 (1998), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). "Given the practical consideration of the small size of packages of drugs, which are capable of being concealed within a closed hand, we would critically handicap law enforcement to require in every circumstance that an officer not only witness an apparent exchange, but also see what object was exchanged, before making a search incident to an arrest." Kennedy, supra at 711. While the absence of such an observation weakens the Commonwealth's showing of probable cause, the combination of other factors may be "sufficient to overcome the officer's failure to actually see the object exchanged in the drug transaction." Ibid.
In reviewing a determination of probable cause, "[w]e look . . . at the 'whole "silent movie" disclosed to the eyes of an experienced narcotics investigator.'" Id. at 708, quoting from Santaliz, supra at 242. In this case, Cambridge police Detective Brian Hussey -- a fifteen-year veteran in his fifth year assigned to a unit specializing in drug and vice crimes -- received complaints about suspected drug trafficking in the area of the Jefferson Park housing complex. Hussey and other members of his unit initiated an investigation, which focused on a gold Nissan Maxima sedan with Pennsylvania license plates.
We state the facts as found by the motion judge, supplemented by undisputed evidence from the suppression hearing. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). "[W]e adopt the motion judge's factual findings absent clear error," and "[w]e independently determine whether the judge correctly applied constitutional principles to the facts as found." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). The defendant does not contend that the motion judge's factual findings were erroneous, but questions her application of the law to the facts.
Around 12:30 A.M., on March 29, 2013, while conducting surveillance of the complex, Hussey observed the Nissan with the Pennsylvania license plates pull into a parking spot in one of the parking areas of the complex. At 12:45 A.M., a minivan with a yellow school bus sign entered the same parking lot and parked a few spaces away from the Nissan. The defendant exited the passenger side of the Nissan, approached the minivan, and after a quick hand-to-hand exchange, returned to the Nissan. The minivan drove away. Hussey testified that he believed the exchange to have been a drug transaction. He radioed to other members of his unit to stop the minivan. After the stop and search of the minivan, Hussey and another officer approached the Nissan. Hussey arrested the defendant -- the passenger who had conducted the drug transaction -- and searched him incident to the arrest. Given Hussey's training and experience, the scenes in this "silent movie" were sufficient to establish probable cause for the arrest. See Kennedy, 426 Mass. at 708.
Hussey's colleagues stopped the minivan and conducted a patfrisk of the driver, its sole occupant. They discovered a plastic bag containing an off-white substance and a glass tube (used for smoking crack). The driver told the officers she had just bought the substance for forty dollars from "Dubs," which Hussey knew was the defendant's nickname.
Relying on the doctrine of target standing, the defendant argues that the police lacked justification to stop the minivan and pat frisk its occupant; therefore, he continues, the evidence obtained from that stop should not be used in the calculus of probable cause for his arrest and should have been suppressed at trial. "The Supreme Court has rejected target standing under the Fourth Amendment," and the Supreme Judicial Court "has considered target standing in relation to art. 14 of the Massachusetts Declaration of Rights in a number of cases since 1990, but to date [has] not adopted it." Commonwealth v. Santiago, 470 Mass. 574, 577578 (2015), and cases cited. We reject the defendant's claim that the police conduct in this case was so "distinctly egregious" that adoption of target standing is warranted. Furthermore, even before the stop of the minivan driver, the evidence provided probable cause to arrest and search the defendant.
The search produced an amount of cash consistent with the amount the minivan driver said she paid the defendant, as well as two cellular telephones. As the Commonwealth did not introduce the phones in evidence at trial, any question regarding suppression of the phones is moot.
Prosecutor's closing argument. The defendant contends for the first time on appeal that the prosecutor incorrectly commented on the "beyond a reasonable doubt" standard in closing argument by referring to "moral certainty" without mentioning "abiding conviction." In fact, both the prosecutor and defense counsel commented on the "beyond a reasonable doubt" standard. While "it was not good practice for the prosecutor to discuss the definition of 'reasonable doubt' in the closing argument," Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53-54 (2003), the prosecutor properly directed the jury to consider "the events" and "the exhibits." The prosecutor's remarks provided sufficient context to alleviate any risk that the jurors would interpret moral certainty "to mean that the certainty is based on a feeling, i.e., moral conviction rather than facts." Commonwealth v. Russell, 470 Mass. 464, 476 (2015) (citation omitted).
Defense counsel declared, "The burden is beyond a reasonable doubt. It's not beyond every doubt; it's to a moral certainty." The prosecutor stated, "It means that when you get back into that jury room, if you're convinced to a moral certainty, based on the events that you've heard, the exhibits you see, then the defendant is guilty."
In addition, after instructing the jury that opening statements and closing arguments are not evidence, and that the jurors must accept the law as stated by the judge, the judge gave a standard Webster charge. "In these circumstances, we conclude that any prejudice resulting from the prosecutor's comments, which were not objected to, was dispelled by the judge's instructions and did not create a substantial risk of a miscarriage of justice." Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 385 (2003).
The trial concluded before the issuance of Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015), which directed that its updated version of the Webster charge be used prospectively. Furthermore, the decision emphasized that "the traditional Webster charge has been and continues to be . . . constitutionally sufficient." Id. at 476.
Judgment affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 1, 2016.