Opinion
20-P-853
08-24-2021
COMMONWEALTH v. Darvin ESTRADA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Darvin Estrada, appeals from his conviction after a Superior Court bench trial of trafficking at least 200 grams of heroin, G. L. c. 94C, § 32E (c ) (4). Concluding that the motion judge properly determined that there was probable cause to arrest the defendant and that the defendant was advised of his Miranda rights, that there was sufficient evidence for the judge to conclude that the defendant was aware he possessed heroin, and that there was no substantial risk of a miscarriage of justice in the failure to redact his statement to the police, we affirm.
1. Background. On September 26, October 2, and December 4, 2014, packages were delivered by Federal Express from Southern Guatemala to 220 River Street, Apartment 1 in Waltham. Each package listed a different sender and recipient, but each had the same phone contact for the recipient and the same billing number. On December 11, 2014, a fourth package meeting this description, this time addressed from Delfino Santos to Mario Santos, but with the same address, phone number, and billing number was intercepted by Homeland Security investigators on suspicion that it contained heroin.
State troopers decided to conduct a controlled delivery of the intercepted package, with one trooper posing as a Federal Express delivery person. The building in question was a mixed-use structure, with Chapin Grocery on the first floor, and residential apartments on the upper floors. Chapin Grocery routinely provided package services through which people could send and receive items to and from Guatemala.
That morning at approximately 8 A.M. , a male named "Chewy" entered the store and asked the store clerk to receive a package on his behalf. He told her the names of the individuals associated with the package, Mario and Delfino Santos, and said that he would pick up the package later that day. Later that morning, the trooper, disguised as a delivery person, entered the store and told the clerk that he had a package for Mario Santos. The clerk signed for it.
Shortly after, investigators entered the store and seized the package and the clerk's cellular phone. While they spoke with the clerk, the phone rang several times with the name "Darvin 2" on display. The phone number associated with Darvin 2 was the same number printed on the package.
Eventually, the store's landline telephone rang. The clerk answered, and the caller identified himself as Darvin (the defendant). He asked whether the package had arrived and told the clerk that he would pick it up.
At approximately 3:11 P.M. , the defendant arrived at the store. The defendant asked for the package and then said, "I'm not going to take it." The clerk asked, "Why, isn't it yours?" and he responded, "No, it's my friend's." The defendant asked for a bag, placed the package in a brown bag, and then took it. Once he left the store, investigators arrested him.
When questioned, the defendant stated that a person had asked him to pick up the package because the intended recipient was unable to collect it. He said that he was supposed to wait for further instructions. He said that he could not call the person who had asked him to retrieve the package and that he had never collected a package for this person before then.
The package contained several pill bottles. Inside those bottles was over 253 grams of heroin, worth approximately $40,000 to $45,000.
2. Motion to suppress. a. Standard of review. "In reviewing the denial of a motion to suppress, we ‘accept[ ] the judge's subsidiary findings of fact absent clear error, give[ ] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[ ] the correctness of the judge's application of constitutional principles to the facts found.’ " Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 158-159 (2019), quoting Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018).
b. Probable cause to arrest. "Probable cause to arrest exists when, 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. Wardsworth, 482 Mass. 454, 482 (2019), quoting Commonwealth v. Pridgett, 481 Mass. 437, 439 (2019). "The officers must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt.’ " Commonwealth v. Alves, 70 Mass. App. Ct. 908, 909 (2007), quoting Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).
Here, the defendant's actions were adequate to support a belief by the troopers that the defendant knew that the package contained illegal narcotics. The defendant called four times to ask about the package, including at least three times from the phone number on the package. See Commonwealth v. Sheline, 391 Mass. 279, 284-285 (1984) (repeated inquiries about delivery of package demonstrated that defendant "was anxious to receive it," and, "[f]rom the fact that the defendant was anxious to receive the package, the jury properly could have inferred that he knew what was in it"). The clerk was familiar with the defendant and associated the phone number with him. The defendant placed the package in a brown shopping bag, even though his car was parked directly in front of the store with the hazard lights on. See Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995) ("Evidence, such as ... attempts to conceal or dispose of contraband, do ... permit an inference of unlawful possession"). Accord Sheline, supra at 285 (defendant's action to avoid detection contributed to sufficiency). The defendant's action in repeatedly calling to determine the status of the package and then attempting to conceal it provided enough reason for the police to believe that, rather than being an innocent dupe, he knew the package contained illegal narcotics. See Johnson v. United States, 40 A.3d 1, 10-11 (D.C. 2012).
c. Miranda warnings. "When in police custody, a defendant must be given Miranda warnings before being interrogated, and waiver of those rights must be knowing and voluntary." Commonwealth v. Diaz-Arias, 98 Mass. App. Ct. 504, 510 (2020). Where, as here, the defendant was read the Miranda warnings from a card or form, it is not necessary for the Commonwealth to admit the card or form into evidence or to provide the "exact rights ... recited." Commonwealth v. Mitchell, 47 Mass. App. Ct. 178, 181 (1999). Rather, the motion judge may credit an officer's testimony that the defendant was advised of his Miranda rights. Id.
The same is true where, as here, the Miranda warnings were given in another language. In Commonwealth v. Rendon-Alvarez, 48 Mass. App. Ct. 140, 141 (1999), the testimony established that "the defendant had been given the card to read the warnings in Spanish and, later, the warnings had been read to the defendant from such a card." This was adequate evidence for the motion judge to find that the defendant had been provided with his Miranda warning. Id. Here, an experienced special agent from the Department of Homeland Security testified that the state police form contained the "Miranda [w]arnings in Spanish," and that the form was correctly read to the defendant in Spanish at the beginning of the interrogation. Under Rendon-Alvarez, the judge could find based on this testimony that the defendant was provided his Miranda warnings in Spanish and then waived his rights.
Commonwealth v. Portillo, 462 Mass. 324, 328 (2012), is not to the contrary. There, the Supreme Judicial Court held that, "[w]here another language is spoken in a recorded statement, the prosecutor may not offer the recorded statement in evidence without an English-language transcript, and may not rely on the jury's understanding of the foreign language to ascertain the meaning of the recorded words." Id. Here, however, it was not necessary for the Commonwealth to offer the recorded interrogation into evidence for the judge to find that the Miranda warnings were provided. Rather, the testimony of an experienced law enforcement officer that the warnings were provided was adequate, notwithstanding the lack of a translation or even the recording. See Rendon-Alvarez, 48 Mass. App. Ct. at 141 ; Mitchell, 47 Mass. App. Ct. at 181.
3. Redaction of the defendant's statement. Because the defendant did not object to the admission of the defendant's statement without the redaction of the officers’ comments, review is waived, and we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72-73 (2005). "A substantial risk of a miscarriage of justice exists when we have a ‘serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005). "In a bench trial judges ... are less likely to be unduly swayed by potentially inflammatory evidence." Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 91–92 (2021).
The defendant would have been entitled, upon request, to the redaction of the officers’ statements to him that they did not believe him. See Commonwealth v. Spencer, 465 Mass. 32, 48 (2013). Here, however, the trial judge would have been aware that the officers did not believe the defendant, even if the officers’ statements had been redacted, and the judge would not have afforded weight to the officers’ opinion of this in either event. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008). Accordingly, there was not a substantial risk of a miscarriage of justice.
4. Sufficiency. "[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
The defendant repeatedly called to inquire about the delivery of the package containing the suspected heroin, showing that he was anxious to receive it. "From the fact that the defendant was anxious to receive the package, the jury properly could have inferred that he knew what was in it." Sheline, 391 Mass. at 285. The defendant disclaimed ownership of the package to the clerk and then concealed the package in a brown bag, demonstrating an intent to avoid detection. See id. (defendant's action to avoid detection contributed to sufficiency); Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 649 (2006), S.C., 450 Mass. 302 (2007) (fact that "defendant attempted to evade police capture after securing the package" contributed to sufficiency).
When investigators tested the package's contents, they found approximately $40,000 to $45,000 worth of heroin. See Commonwealth v. Aguiar, 370 Mass. 490, 500 (1976) ("The jury could use their commonsense knowledge that $57,600 worth of cocaine would not be sent ... to the defendant's address without the defendant's having some advance knowledge that he might be receiving a controlled substance"). Finally, three prior shipments had been made in the preceding months, all with the defendant's phone number and the same billing number, from the same country to the same grocery store. The defendant's repeated involvement in suspicious packages, especially in light of his denial to the investigators of retrieving packages previously, belied the claim that he was an innocent dupe. Accordingly, there was sufficient evidence that the defendant knowingly possessed heroin. See Sheline, 391 Mass. at 284-285 ; Aguiar, supra.
Judgment affirmed.