Opinion
14-P-126
06-16-2015
COMMONWEALTH v. SHAWN PEETE.
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, Shawn Peete, appeals from his conviction of possession of a Class B substance (cocaine) in violation of G. L. c. 94C, § 34. The defendant alleges that while held in confinement at the Massachusetts Correctional Institution at Concord in an awaiting-trial status, but among the general population, he was the subject of an illegal strip search that led to the discovery of a bag of cocaine in his sock. His pretrial motion to suppress was denied. The defendant also maintains that the judge erred in permitting correction officers to testify at his trial as to the identity of the substance as cocaine. For the reasons that follow, we affirm.
Background. The essential facts are not in dispute. On April 27, 2010, Sergeant Curran and Officer Graves randomly selected Peete and brought him into a windowless interview room to be searched for contraband. There is a written policy that permits the random selection of persons in the general population (pretrial detainees and inmates serving a sentence) for such searches, and correction officers receive training in how to conduct them. The officers first observed cigarettes in Peete's waistband as he removed his shirt. They then discovered a bag of white powder in his sock, at which time he had not yet fully disrobed. Following these discoveries, the officers continued the search, ordering Peete to remove his last article of clothing. They had him lift his genitals, and then bend at the waist and cough to expel any object that may have been hidden in his rectum.
Discussion. 1. Motion to suppress. In reviewing a ruling on a motion to suppress, the court accepts the motion judge's findings of fact absent clear error "but conduct[s] an independent review of his ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "A detention facility is a unique place fraught with serious security dangers," Bell v. Wolfish, 441 U.S. 520, 559 (1979), and accordingly corrections officers are granted significant latitude to maintain the safety of officers and inmates alike.
See Hudson v. Palmer, 468 U.S. 517, 524 (1984); Florence v. Board of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510, 1517 (2012); Commonwealth v. McCollins, 23 Mass. App. Ct. 436, 438 (1987); Santiago v. Russo, 77 Mass. App. Ct. 612, 615 (2010).
In the present case, although the correction officers intended to conduct a strip search when they brought Peete into the interview room, evidence was discovered before such a search occurred. Thus, we are not required to decide whether the probable cause standard under art. 14 of the Massachusetts Declaration of Rights that applies to strip and visual body cavity searches conducted by the police, see Commonwealth v. Thomas, 429 Mass. 403, 408 (1999), applies in a correctional setting. When the bag of cocaine was found in Peete's sock, he had not yet removed his last article of clothing, so a strip search had not yet occurred. See Commonwealth v. Prophete, 443 Mass. 548, 557 (2005).
"There is nothing in the record to suggest that the defendant was singled out for particular treatment." Commonwealth v. McCollins, supra.
2. Evidentiary issues. The defendant also claims that the trial judge erred in allowing Sergeant Curran to testify about the identity of the powder found in the defendant inmate's sock because he was not qualified to offer such testimony and statements made by Sergeant Curran and Officer Graves about field testing were inadmissible. The defendant raises no objection to the testimony of chemist Kenneth Gagnon, a supervisor at the State police crime laboratory, who was permitted to testify as a substitute expert and offered his expert witness opinion that the substance found in the defendant's sock was cocaine.
Even though the judge did not explicitly state that he found Sergeant Curran and Officer Graves were qualified to opine that the substance removed from the defendant's sock was cocaine, see Commonwealth v. Dawson, 399 Mass. 465, 467 (1987), such a finding is implicit in view of the record evidence that the witnesses had the requisite training and experience to offer such an opinion. See Commonwealth v. Salcedo, 405 Mass. 346, 350 (1989) (record implied judicial finding that witness was qualified as an expert).
Sergeant Curran testified that he "field tested" the substance found in the defendant's sock, and based on the results and his training and experience, believed it was cocaine. The defendant did not file a pretrial motion challenging the reliability of the field test, or Sergeant Curran's qualifications to perform it. See Commonwealth v. Fernandez, 458 Mass. 137, 151 (2010); Mass. G. Evid. § 702 (2015 ed.). The only objection was based on hearsay grounds. Since Sergeant Curran testified he performed the test and he was subject to cross-examination, the defendant's objection was unavailing. Even if we assume that the Commonwealth should have laid a foundation demonstrating that the field test in question was reliable, see Fernandez, supra at 151 & n.20, we are satisfied that the weight of the other evidence bearing on the identity of the substance as cocaine -- namely the drug identification testimony by the two officers, the testimony of chemist Gagnon, and the evidence of the circumstances under which the substance was discovered in the defendant's sock -- was so strong that any error that may have been committed was harmless.
Judgment affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 16, 2015.