Opinion
13-P-1001
05-25-2017
COMMONWEALTH v. Jason DEPINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of trafficking in cocaine and possession of marijuana with intent to distribute. His appeal concerns the denial of two pretrial motions and the procedural recreation of the lost transcript from the first day of the hearing on his motion to suppress. We affirm.
Background. We recite the facts as the jury could have found them. The defendant was driving a car with three passengers on the night of December 29, 2008, in the Dorchester section of Boston when the vehicle's loud exhaust system and "rejected" inspection sticker drew the attention of State Trooper Robert Bohn. The trooper was familiar with this neighborhood of Dorchester as a neighborhood high in crime, including gang conflict and narcotics and firearms violations. He began to follow the vehicle driven by the defendant, at which point the defendant began to slow down and pull to the side of the road. The trooper then activated his vehicle's blue lights, and the defendant stopped his vehicle next to trash barrels along a snowbank. The trooper approached the vehicle. As he did so, the defendant began to exit from the driver's seat while "looking to all sides." After being told to get back in the vehicle, the defendant hesitated, then reentered the car after the trooper repeated his order. The trooper then approached the vehicle and spoke with the defendant. The trooper requested his license and registration, as well as the identification of the three passengers, as none of the occupants was wearing a seatbelt. During this period, the defendant was being "overly friendly," while producing a registration that did not match the driver or any of the passengers and failing to produce a driver's license. The two passengers in the rear of the vehicle produced driver's licenses, while the passenger in the front seat failed to produce identification and only gave the trooper his name and date of birth after several requests. The trooper checked for outstanding warrants and criminal histories for the four men in the vehicle, which revealed all of them had lengthy criminal histories, including firearm and narcotics charges. While Trooper Bohn investigated the men's backgrounds, he noticed them repeatedly looking back at the trooper's vehicle in a nervous fashion. Based on the above interaction and several other factors, the trooper grew increasingly suspicious of criminal activity.
The factors cited were the defendant's vague statement that their destination was down the road, the fact that it was night and the trooper was outnumbered, and the fact that none of the people in the car was wearing a seatbelt (indicating the potential to flee).
At this point, the trooper directed the defendant to step out of the car. Another State trooper, James Gordon, and a plain-clothed member of the Boston police department had arrived by this time. As Trooper Bohn directed the defendant out of the car, Trooper Gordon observed the passenger in the rear driver's side seat kicking something forward on the floor, seemingly attempting to push it under the driver's seat. Trooper Gordon informed Trooper Bohn that the passenger was kicking something, at which point Trooper Bohn handcuffed and pat frisked the defendant.
During the patfrisk, the trooper felt a bulge roughly the size of a baseball in the defendant's pocket. Based on its size, shape, and jagged edges, the trooper believed it to be cocaine. He asked the defendant whether it was cocaine, to which the defendant replied, "yes." The trooper confiscated the package, which consisted of a large plastic bag with a number of smaller plastic bags inside it containing a white substance. Trooper Bohn then searched inside the car in the area where the passenger had been viewed kicking something and discovered a towel covering two plastic bags of marijuana. Unprompted, the defendant told the trooper that it belonged to him. As a result, he was arrested and subsequently convicted of trafficking in cocaine and possession of marijuana with intent to distribute.
The defendant raises three arguments on appeal. He challenges the denial of both his motion to dismiss and motion to suppress, and asserts error in the judge's settling of the record on the motion to suppress after the transcript from the first day of the hearing was irretrievably lost.
Discussion. 1. Motion to dismiss. The defendant moved to dismiss his indictments based on the destruction of the turret tape that contained the communications between Trooper Bohn and dispatch at the time of the stop of the defendant's vehicle. The Commonwealth did not deny that the tape had been destroyed, instead explaining that it was "destroyed pursuant to a police policy of keeping such tapes only for one year after the date of the recording." The defendant contends that dismissal was warranted because the turret tape was essential to his claim that the initial stop was pretextual, as opposed to a routine traffic stop. The judge noted that the defendant met his initial burden of demonstrating potential exculpatory value in the tape. In ultimately denying the motion, the judge concluded that relief was not warranted after balancing "the Commonwealth's culpability, the materiality of the evidence, and the prejudice to the defendant." Commonwealth v. Williams, 455 Mass. 706, 718 (2010).
We review the judge's denial of the defendant's motion to dismiss for abuse of discretion, giving great deference to the judge while determining whether she "made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).
In the judge's thoughtful written decision denying the motion, she made it clear that she properly considered the relevant factors: first, she held that the defendant met his initial burden that the turret tapes were potentially exculpatory; second, she balanced "the Commonwealth's culpability, the materiality of the evidence, and the prejudice to the defendant" in determining whether or not to dismiss the indictments. Williams, supra. She concluded the tape was potentially material, but also that there was no bad faith on the part of the Commonwealth and the loss of the tape resulted in "at most, some prejudice." After balancing those three factors, she determined that dismissal was not appropriate.
Noting the trooper's articulated reasons for stopping the car (loud exhaust and "rejected" inspection sticker), the lack of bad faith by the Commonwealth with respect to the destruction of the tape, and the recognition that dismissal is a "drastic remedy," we conclude that the judge did not abuse her discretion in denying the motion. Commonwealth v. Perito, 417 Mass. 674, 681 (1994).
We further note that the judge, deeming dismissal an extreme remedy, noted that "[t]he more appropriate remedy is to permit ... the defendant[ ] to cross-examine the government's witnesses regarding the tape that is no longer available."
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2. Motion to suppress. The defendant's motion to suppress the drug evidence seized from his person and the vehicle raised nine arguments. On appeal, he challenges the denial of his motion to suppress on only two of those grounds: that police were not justified in issuing the exit order to the defendant or in subsequently pat frisking him.
"On review of a motion to suppress, we do not disturb the judge's findings of fact unless they are clearly erroneous," Commonwealth v. Sicari, 434 Mass. 732, 746 (2001), but "conduct an independent review of the judge's application of constitutional principles to the facts found." Commonwealth v. Hoose, 467 Mass. 395, 400 (2014).
The defendant asserts that Trooper Bohn's decision to order him to exit the vehicle and subsequently subject him to a patfrisk was an unconstitutional and unjustified expansion of the initial traffic stop. Having reviewed the record, we find no error in the judge's findings of fact and will not disturb them. The pertinent facts of the case are detailed above, and we independently review their application to constitutional principles.
"When the police are justified in stopping an automobile for a routine traffic violation, they may, for their safety and the safety of the public, order the driver or the passengers to leave the automobile, but only if they have a reasonable belief that their safety, or the safety of others, is in danger." Commonwealth v. Torres, 433 Mass. 669, 673 (2001). The officer's safety concerns must be such that "a reasonably prudent man in the policeman's position would be warranted" in his safety concerns. Commonwealth v. Cruz, 459 Mass. 459, 466 (2011) (quotation omitted). In addition to safety, an exit order is justified if officers have developed a reasonable suspicion that the defendant was engaged in criminal activity. Id. at 467.
Here, Trooper Bohn was justified in initially stopping the vehicle driven by the defendant because of its loud exhaust and "rejected" inspection sticker. The inquiry as to whether the exit order and subsequent patfrisk were justified, however, is a more complex one. There is no single fact that, in isolation, unequivocally suggests that the safety of the trooper or others was compromised or that the defendant was engaged in criminal activity. Ultimately, however, we conclude that when viewing the situation faced by Trooper Bohn as a whole, the trooper's concern for his own safety and his belief that criminal activity was afoot were reasonable. Within the car were four men with lengthy criminal histories, including firearm and narcotics charges, and the trooper noted that the four men were acting nervously in the car. It was dark out at the time of the stop, and the trooper was aware that they were in a high-crime area. The vehicle was not registered to anyone inside the car, the defendant was vague and noncommittal when asked for his destination, and he appeared to be trying to avoid contact with police prior to being stopped by attempting to let the trooper's vehicle pass him. The defendant was unable to produce a driver's license, and nobody in the car was wearing a seatbelt. These circumstances, when considered as a whole and coupled with the trooper's fifteen years of experience with the State police, provided a reasonable basis for his safety concerns and belief that criminal activity was underway. See Cruz, supra.
As we have concluded that the exit order was reasonable on the basis of safety concerns, the trooper was justified in his subsequent patfrisk of the defendant. See Torres, supra at 676 ("The standard for a patfrisk is the same as the standard required to justify an order to the occupants of a vehicle stopped for traffic violations to leave the vehicle"). The defendant's motion to suppress was properly denied.
3. Motion to settle portion of record. The defendant's final assertion that the judge erred in settling the contents of the lost transcript requires little attention. The record indicates that the parties followed the appropriate procedure detailed in Mass.R.A.P. 8(c), (e), as amended, 378 Mass. 932 (1979), and the parties' statements were delivered to the same judge who heard the motion to suppress. The rule provides that the appellant's statement of evidence, coupled with the appellee's objections and proposed amendments, be submitted to the judge for final approval and settlement. This procedure was followed by the judge, and the defendant's argument that the judge erred in opting not to include portions of the defendant's attorney's notes lacks merit. The judge considered the notes but did not adopt them, explaining that she could not "determine the accuracy of the notes, except insofar as they match the court's own findings." There was no error.
Judgments affirmed.
Orders on motions to settle contents of lost transcript and motions for reconsideration affirmed.