Opinion
18-P-1719
06-18-2020
COMMONWEALTH v. JONATHAN LARA.
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 was convicted of heroin distribution, and of heroin possession with intent to distribute following a jury trial. On appeal he argues that (1) his motion to suppress was improperly denied, (2) a substantial risk of a miscarriage of justice resulted from the admission of inadmissible hearsay at trial, and (3) that a substantial risk of a miscarriage of justice resulted from the admission of improper opinion testimony at trial. We affirm.
1. Motion to suppress. The defendant first claims that the motion judge erred in denying his motion to suppress evidence, which was based on the theory that the stop was not supported by reasonable suspicion. He argues that the judge (1) wrongly determined that the police witnesses' training and experience allowed them to make certain inferences consistent with drug dealing when, in fact, the defendant's actions were consistent with innocent behavior and (2) erred in concluding that the stop took place in a high crime area. Absent these alleged errors, the defendant contends, the evidence was insufficient to establish reasonable suspicion for the police stop of the defendant.
The facts are as follows. Police observed a Nissan automobile with New Hampshire license plates driving in the Prospect Hill area of the city of Lawrence. That area was known for recent and significant illegal drug activity. The Nissan drove around in a small geographic area for about forty minutes, occasionally pulling over for brief periods of time. The driver was on a cell phone.
The facts are taken from the motion judge's findings, supplemented by the testimony of the lieutenant and the detective, whose testimony the judge explicitly credited. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018) (appellate court may look to uncontroverted evidence at suppression hearing that is consistent with judge's findings).
During this time police observed the defendant parked in a separate car on a parallel street, one block over from where the Nissan had stopped. The defendant, also on a cell phone, exited his car. The defendant walked a short distance to the street where the Nissan had stopped. As the defendant approached the Nissan, the Nissan made a U-turn, stopped, and the defendant got into the rear passenger seat. The Nissan pulled away, drove for under one minute, then dropped off the defendant. The defendant returned to his car. The police then stopped both cars. The judge determined that all of these facts were consistent with illegal drug activity, per the police witnesses' training and experience. On that basis, the judge concluded that the police had reasonable suspicion to stop the defendant's car, based on the totality of the circumstances.
"[W]e adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Buckley, 478 Mass. 861, 864 (2018), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Commonwealth v. Pugh, 462 Mass. 482, 495 (2012), quoting Commonwealth v. Wolcott, 77 Mass. App. Ct. 457, 471 n.12 (2010). "[T]he determination of the weight and credibility of the [suppression hearing] testimony is the function and responsibility of the judge who saw the witnesses, and not this court." Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980). In short, "[t]he clear error standard is a very limited form of review." Yesilciman, supra, quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984).
The judge appropriately relied on the police officer's training and experience in the reasonable suspicion analysis. Where an officer describes activity that he witnessed and testified that the activity is consistent with a drug sale based on his knowledge, education, training, and experience with drug sales, "[o]ne could reasonably infer from the officer's testimony that he had compared the observed activity with a general type of street-level drug sale with which he was familiar, and found it consistent." Commonwealth v. Kennedy, 426 Mass. 703, 706 (1998). Where a judge relies on an officer's training and experience, "testimony on an officer's 'inferential process,'" and "detail on what a typical street level drug sale looks like from beginning to end," are preferred. Id. at 706, citing Commonwealth v. Taglieri, 378 Mass. 196, 199-201 (1979).
Here, the lieutenant testified that he had worked as a police officer in Lawrence for twenty-four years at the time of the suppression hearing. He testified that he had received training regarding controlled substances. He testified that, at the time of the suppression hearing, he was "a lieutenant in charge of the [s]treet [n]arcotics [e]nforcement [u]nit" in Lawrence. He testified to his knowledge of drug packaging and sales based on his on-the-ground experience. Specifically, his testimony included detailed descriptions of how heroin is sold in Lawrence.
The defendant argues that, since the suppression hearing took place one and one-half years after the stop, the Commonwealth was required to delineate how much of the officer's training and experience took place before the stop, as this was the relevant inquiry. While it would have been preferable for the prosecutor to have established this, it is reasonable to infer that, given the officer's command position within the narcotics unit at the time of the hearing, and his lengthy employment with the police department, the bulk of the training and experience took place prior to the stop.
This testimony, especially the testimony regarding typical street-level heroin sales in Lawrence, allowed the judge to "reasonably infer . . . that [the lieutenant] had compared the observed activity with a general type of street-level drug sale with which he was familiar, and found it consistent." Kennedy, 426 Mass. at 706. The judge's inference was permissible. See id. at 705-706. Thus, the judge properly considered the lieutenant's training and experience in reaching the conclusion that the stop was supported by reasonable suspicion. See id. See also Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 780 n.2, 786 (2016) (probable cause predicated in part on testimony from "sixteen-year veteran of the Boston [P]olice [D]epartment and a member of its drug control unit" that "[b]ased on his training and experience, he believed he had witnessed a drug transaction").
The judge also appropriately relied on the finding that the area was known for recent and significant illegal drug activity. "The fact that the officers were in a high crime area is unquestionably a factor to consider, albeit with caution; we recognize that so-called high crime areas are inhabited and frequented by many law-abiding citizens . . . ." Commonwealth v. Johnson, 454 Mass. 159, 163 (2009), citing Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001). Characterizing an area as one of "'high crime' may be relevant in determining whether a police officer's suspicion is reasonable, [but] the accuracy of the characterization in a particular case depends on specific facts found by the judge that underlie such a determination, rather than on any label that is applied." Commonwealth v. Jones-Pannell, 472 Mass. 429, 434 (2015), citing Johnson, supra.
Undisputed suppression hearing testimony, which the judge credited, supported the judge's finding that the area where the stop occurred was known for recent and significant illegal drug activity. Specifically, the lieutenant testified that "[a]t that particular time, that area was . . . hot with a lot of arrests [they] had made up in that area where customers were meeting their drug source." Additionally, "up in that area, [they had] had a lot of complaints . . . and made a lot of arrests in that area for that kind of a crime." The detective, for his part, confirmed that the police "specifically went to that area that day as a result of . . . a high volume of complaints."
Thus, the judge's finding that the area was known for recent and significant illegal drug activity was not clearly erroneous. See Johnson, 454 Mass. at 163 (judge's finding of "a high crime neighborhood replete with drug dealings, gangs, gun violence and property crimes" was supported by "undisputed testimony of the two police officers . . . that the particular area of Springfield where the patfrisk occurred was, at the time of the frisk, 'well known as a high gang area' with gun violence, citizen calls for shots fired, and heavy drug dealing"); Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007) ("judge appropriately considered the high-crime setting of the encounter" where officer "testified that the officers spotted the defendant in an area that had experienced a recent increase in incidents of firearm violence, and that they were patrolling the area for that reason . . . even though the record [did] not contain descriptions of incidents in which the testifying officer was personally involved").
The judge's factual findings, viewed together, amply supported his conclusion that the police had reasonable suspicion to stop the defendant based on the totality of the circumstances. Our inquiry is "whether the officer[s] had reasonable suspicion to believe that the defendant 'was committing, had committed, or was about to commit a crime.'" Commonwealth v. Matta, 483 Mass. 357, 365 (2019), quoting Commonwealth v. Martin, 467 Mass. 291, 303 (2014). "Reasonable suspicion 'must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom' rather than on a 'hunch.'" Matta, supra, quoting DePeiza, 449 Mass. at 371. "The facts and inferences underlying the [officers'] suspicion must be viewed as a whole when assessing the reasonableness of [their] acts." Matta, supra, quoting Commonwealth v. Sykes, 449 Mass. 308, 314 (2007). "That is, 'a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief that a person has, is, or will commit a particular crime.'" Matta, supra, quoting Commonwealth v. Meneus, 476 Mass. 231, 236 (2017).
Here, the judge found that the police saw a Nissan with out-of-State license plates drive around in a small geographic area for about forty minutes, occasionally pulling over briefly. The defendant parked his car on a parallel street, one block from where the Nissan eventually stopped. The defendant walked the short distance to the Nissan. When the defendant approached, the Nissan made a U-turn, and the defendant got in. The car drove for fewer than sixty seconds, then dropped off the defendant. These facts support a fair inference that a drug sale occurred in the Nissan. See Matta, 483 Mass. at 365, quoting Meneus, 476 Mass. at 236 ("combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief that a person has, is, or will commit a particular crime"); Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 346 (2010), citing DePeiza, 449 Mass. at 373 ("Viewed through the eyes of experienced police officers and as a whole, even seemingly innocent activities may take on a sinister cast and give rise to reasonable suspicion").
Further -- though only part of the larger holistic analysis -- the judge found that the police (1) made the observations above in an area known for recent and significant illegal drug activity, and (2) determined that these observations were consistent with illegal drug activity, per their training and experience. See Matta, 483 Mass. at 365, quoting Sykes, 449 Mass. at 314 ("facts and inferences underlying the [officers'] suspicion must be viewed as a whole when assessing the reasonableness of [their] acts").
Viewing the totality of the circumstances, the judge correctly determined that the stop of the defendant's car was supported by reasonable suspicion that a drug sale had taken place. See, e.g., Cabrera, 76 Mass. App. Ct. at 346 (reasonable suspicion present where detectives "observed two motor vehicles from outside the Boston area meet at a known rendezvous for drug transactions [and] . . . the vehicles proceeded in concert to a location out of public view . . . . There, one individual from each vehicle met and went inside a building for less than a minute").
2. Hearsay. At trial, the lieutenant testified that, after the Nissan was stopped, the passenger appeared to put something in her mouth and swallow it. He told the woman that they could take her to a hospital or she could attempt to regurgitate it. The woman then regurgitated. The prosecutor then asked, "What, if anything, was she able to regurgitate?" The lieutenant answered, "She regurgitated one bag that she said she had just bought." The defendant contends that the lieutenant's answer constituted inadmissible hearsay. The prosecutor, however, "did not frame the questions to elicit hearsay testimony from the [lieutenant]." Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 330 n.6 (2002). Further, the defendant did not object to the hearsay statement. The statement was not the subject of a motion in limine, and it went unaddressed and unmentioned throughout trial.
On appeal, the Commonwealth argues that the statement could have been admissible as an excited utterance. Given our disposition of this issue, we need not address this theory.
Therefore, "[t]he defendant [in essence] complains that the judge failed to strike, sua sponte, a gratuitous hearsay statement by a witness." Pimental, 54 Mass. App. Ct. at 330. "The defendant cites no authority for the proposition that a trial judge is required to strike, sua sponte, hearsay evidence to which there was no objection." Id. "Absent objection, jurors are entitled to give hearsay such probative effect as they deem appropriate." Id., at 330 n.5, citing Abraham v. Woburn, 383 Mass. 724, 727 n.1 (1981).
In any event, the defendant was not prejudiced by the hearsay statement. The jury could well have inferred that the drugs the woman was attempting to swallow were purchased from the defendant by the sequence of events just prior to the stop. Additionally, there was evidence that the drugs regurgitated by the woman were packaged similarly to the other drugs recovered from the defendant's car. Finally, there was evidence that, just after he was stopped, the defendant told the police that he knew the occupants of the Nissan, "he knew the girl, and that he did sell her heroin." As the substance of the hearsay statement was cumulative of other properly admitted evidence, there is no substantial risk of a miscarriage of justice. See Pimental, 54 Mass. App. Ct. at 330-331.
3. Opinion testimony. Finally, the defendant challenges police witness testimony at trial that Lawrence is a "source city" for drugs and that drugs seized from the defendant's vehicle were packaged consistent with distribution. "It is well established that 'trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases.'" Commonwealth v. Little, 453 Mass. 766, 768 (2009), quoting Commonwealth v. Miranda, 441 Mass. 783, 793 (2004). "The judge's decision to allow this type of evidence 'will be reversed only where the admission constitutes an abuse of discretion or error of law.'" Little, supra at 768-769, quoting Commonwealth v. Johnson, 410 Mass. 199, 202 (1991).
"Narcotics investigators may testify as experts to describe how drug transactions occur on the street." Little, supra at 769, citing Miranda, 441 Mass. at 794. Additionally, the Supreme Judicial Court has "repeatedly held that there is no error in allowing 'a police detective to testify that in his opinion the amount of [drugs] possessed by the defendant was not consistent with personal use but was consistent with an intent to distribute.'" Little, supra, quoting Johnson, 410 Mass. at 202.
Here, the lieutenant provided exactly this kind of testimony. He testified to his considerable experience, training, and knowledge involving street drug investigations, transactions, and packaging in Lawrence. He testified that people come to Lawrence to buy drugs because many people who live in Lawrence are involved in drug distribution. He further testified that the amount and manner of packaging of the drugs in the defendant's car indicated an intent to distribute.
We discern no abuse of the judge's broad discretion in permitting the lieutenant to testify as an expert on these issues. See Commonwealth v. Cordero, 477 Mass. 237, 244 (2017) (permissible for officer to testify "that Holyoke was a 'major drug source city' and that a 'good percentage of the drugs coming into Berkshire County' came from there"). See also, e.g., Commonwealth v. Grady, 474 Mass. 715, 722-723 (2016) (detective provided expert testimony on amount and manner in which drugs are generally packaged for street-level distribution).
Moreover, the defendant did not object to this part of the trial testimony. We "review an unpreserved error so as to avoid a substantial risk of a miscarriage of justice only when the appellant clearly demonstrates that a serious and obvious error did in fact occur, which is not the case here." Pimental, 54 Mass. App. Ct. at 331 n.7, citing Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 604 (2000).
Judgments affirmed.
By the Court (Maldonado, Singh & Englander, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 18, 2020.