Opinion
No. 13–P–74.
10-03-2014
COMMONWEALTH v. Harold MILLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a jury in the Superior Court for trafficking in cocaine, G.L. c. 94C, § 32E(b )(3). He asserts numerous errors which we consider in turn, referring to the factual background as necessary to inform our discussion.
The defendant was found not guilty of a related school zone violation.
Motion to suppress evidence. Exit order and patfrisk. The defendant's reliance on the trial transcript in support of his motion to suppress evidence is error, as we consider only the evidence before the motion judge. Commonwealth v. Taylor, 383 Mass. 272, 280 n. 9 (1981). It would, in any event, be unavailing for the defendant to correct this misstep. The record indicates that the “silent movie” observed by the police provided, at the least, reasonable suspicion to conclude that a drug transaction had occurred and justified a stop of the vehicle in which the defendant was a passenger. Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992) ; Commonwealth v. Kennedy, 426 Mass 703, 708 (1998). The fact that the officers did not see the actual transaction is not dispositive. Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011). The testimony of the experienced police officers, credited by the motion judge, recounting their observations of the suspected purchaser in the parking lot coupled with the defendant's interaction with the suspected purchaser in the back of the vehicle provided reasonable suspicion to stop the vehicle and issue the exit order. See ibid.; Commonwealth v. Stewart, 469 Mass. 257, 261 (2014). Both the exit order and the subsequent patfrisk were appropriate and justifiable protective measures, especially after the defendant admitted that he had a knife on his person. See Commonwealth v. Fraser, 410 Mass. 541, 544–546 (1991). However, even before officers gave the exit order, the suspected purchaser of drugs from the defendant attempted to swallow an object resulting in a white substance visible in his mouth and the retrieval of parts of a plastic baggy. At that point, the officers' reasonable suspicion ripened into probable cause to arrest the defendant. Commonwealth v. Stephens, 451 Mass. 370, 385–386 (2008). As such, the subsequent search, whether characterized as a patfrisk or search incident to the defendant's lawful arrest, was proper. The drugs recovered from the defendant's socks during the patfrisk were properly admitted in evidence.
The defendant also contends that the motion judge improperly denied his motion to suppress statements made at the police station after his arrest as fruits of an illegal stop. Because we hold that the stop and the arrest were proper, we reject this contention.
The order issued by the motion judge stated that the officers saw the defendant “engage in some kind of a transaction.” The police testimony may be summarized as activity consistent with a drug transaction according to the officers' training and experience.
As we conclude that the stop, exit order, patfrisk, and arrest of the defendant were all proper, we necessarily reject the contention that the large package containing one hundred grams of cocaine secreted in the defendant's groin area discovered while the defendant was being booked at the police station must be suppressed.
The fact that this sizable package was not discovered during the patfrisk is some evidence of the limited scope of the frisk at the scene.
Sufficiency of the evidence. Identity. The Commonwealth presented the laboratory technician who tested the substance seized from the defendant as a witness. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009). The defendant claims that the labeling of the drugs with the name “Howard” Miller rather than his actual name of “Harold” is a defect in the chain of custody that renders them inadmissible. We do not agree. “Alleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility.” Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992). The evidence established that the substances taken from the defendant were transferred to an evidence locker. Evidence control officers, the only persons with access to the locker, transferred the evidence to the laboratory, where the three samples received control numbers and, at that time, were labeled “Howard” Miller. The laboratory technician testified that these samples, identified by number, tested positive for cocaine. The arresting officer testified that he was “one hundred percent certain that those are the same ... drugs that [he] secured from [the defendant].”
Two packages were recovered from the defendant's sock at the time of the initial patfrisk; the third, much larger, package was discovered at booking.
The exact testimony was that after the evidence is transferred to the laboratory “we do not identify the sample by any other information other than a lab number.”
For the same reasons, the defendant's argument that there was not enough evidence to support the grand jury indictment is unavailing.
The defendant was given ample opportunity to argue to the jury that the mislabeling of the defendant's name amounted to “gross errors” representing a “failed investigation.” The jury were able to consider and reject that contention.
Judgment affirmed.