Opinion
10-P-1849
11-02-2011
COMMONWEALTH v. RICHARD CUSHNIE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction on a charge of trafficking in marijuana over one hundred pounds, in violation of G. L. c. 94C, § 32E(a)(2), the defendant claims error in the denial of his pretrial motion to suppress evidence seized in a motor vehicle stop and search, and contends that the colloquy administered incident to the submission of stipulated evidence in a jury-waived trial was inadequate to safeguard his constitutional rights. We discern no cause to disturb the judgment, addressing the defendant's claims of error in turn.
Motion to suppress. The motion judge found that Trooper Smith leaned his head in through the driver's side car window in order to hear the defendant over the noise of passing cars on the adjacent turnpike, and because it was raining, so that his intrusion into the vehicle's interior was not for investigative purposes and thus did not constitute an impermissible warrantless search. Compare Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982), with Commonwealth v. Santana, 420 Mass. 205, 207-208 (1995). Though the defendant points to certain evidence that could support a different finding, the finding of fact on which the motion judge rested her conclusion is not clearly erroneous.
The defendant does not challenge the legitimacy of the stop, which the motion judge found was justified by operation of the vehicle in excess of the speed limit and a partially obscured license plate.
In any event, the search of the vehicle finds independent and adequate justification in the form of probable cause to believe that the defendant was transporting marijuana to Cambridge. The police received a tip from a confidential informant that the defendant would be delivering marijuana to Cambridge from New Mexico on a specified date, driving a gold Chrysler minivan. Investigation revealed that the defendant's wife was the registered owner of a gold Chrysler minivan, and that the defendant previously had been convicted on charges of distribution of marijuana. The trooper determined that the vehicle driven by the defendant at the time of the stop (which was a gold Chrysler minivan) was registered to the defendant's wife. The informant's basis of knowledge was established by the fact that the defendant was the informant's marijuana supplier, and important details in the information supplied by the informant were corroborated by the information discovered by the trooper during the stop but before he leaned through the car window. The informant's veracity was established by the fact that the information furnished by the informant was against his penal interest, see Commonwealth v. Alvarez, 422 Mass. 198, 204-205 (1996), and because information supplied by the informant in the past had led to arrests, convictions, and seizures of narcotics. See, e.g., Commonwealth v. Byfield, 413 Mass. 426, 431 (1992).
Waiver of jury trial. As the record makes plain, following denial of his motion to suppress, the defendant determined to proceed to a jury-waived trial based in significant part on stipulated evidence, in order to preserve an opportunity to seek appellate review of the ruling on his motion to suppress. Though the defendant asserts on appeal that the judge's colloquy was inadequate, measured by the suggestions set forth in Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289 (2009), the defendant (who was represented by counsel) raised no objection at the time it was administered. In any event, though much of the evidence was presented at trial by means of a stipulation, the principal witness for the Commonwealth, Trooper Smith, testified under oath and was available for cross-examination by the defendant. For these and the other reasons set forth in the Commonwealth's brief at pages twenty-four to twenty-seven, we are not persuaded that the colloquy was inadequate in the circumstances.
In any event, even were we to assume that the colloquy was inadequate in the circumstances, it did not give rise to a substantial risk of a miscarriage of justice. The evidence against the defendant held by the Commonwealth was overwhelming, and the defendant on appeal offers no suggestion that, without the stipulation, he could have blunted the force of any of the evidence the Commonwealth would have presented to establish his guilt.
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Judgment affirmed.
By the Court (Green, Hanlon & Carhart, JJ.),