Opinion
19-P-1190
08-03-2020
COMMONWEALTH v. MORRIS SANCHEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A District Court jury convicted the defendant of possession of a class D substance with the intent to distribute, two counts of carrying a firearm without a license, and two counts of possession of ammunition without a firearm identification (FID) card. On appeal, the defendant argues that (1) the judge erred in denying his motion to suppress, (2) the evidence at trial was insufficient to support his convictions, and (3) the Commonwealth's expert at trial was erroneously permitted to directly opine on the defendant's guilt. We affirm.
The remaining charges in the criminal complaint for receiving stolen property over $250, see G. L. c. 266, § 60, and two counts of possession of a large capacity firearm, see G. L. c. 269, § 10 (m), were nol prossed before the trial.
The same judge ruled on the motion to suppress and presided over the defendant's trial.
1. Motion to suppress. The defendant first argues that his motion to suppress was improperly denied because the police failed to ask the defendant for any practical alternatives to impounding and towing his vehicle. The defendant contends that the police officers' failure to make this inquiry rendered their decision to impound the vehicle unreasonable and, in turn, requiring all evidence recovered from the vehicle to be suppressed.
Because we discern no clear error, we accept the judge's subsidiary findings of fact made after an evidentiary hearing on the suppression motion. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 83 (2020). However, we conduct an independent review of the judge's ultimate findings and conclusions of law. See id.
The Commonwealth bears the burden of proving the lawfulness of a decision to impound a vehicle. See Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). "Impoundment must be undertaken for a legitimate, noninvestigative purpose, and must be 'reasonably necessary based on the totality of the evidence.'" Goncalves-Mendez, 484 Mass. at 83, quoting Oliveira, supra at 14. "The propriety of an impoundment turns on whether police reasonably could have concluded they had no lawful, practical alternative." Goncalves-Mendez, supra at 83.
Here, the police made the reasonable decision to impound the vehicle for a legitimate, noninvestigative purpose. After stopping the car for a stop sign violation, the police arrested the driver for operation with a suspended license and determined that the defendant, who was the registered owner of the car and the only passenger, was unlicensed and unable to drive the car. This placed the car on a street, in a location not chosen by its driver or the defendant as its registered owner. In such circumstances, the police "might be held responsible if the vehicle's location created a risk to public safety or left the vehicle vulnerable to vandalism or theft." Oliveira, 474 Mass. at 14. See Commonwealth v. Nicoleau, 90 Mass. App. Ct. 518, 520 (2016).
The defendant does not challenge the propriety of the initial traffic stop.
Since neither the defendant nor the driver could lawfully drive the vehicle away, the police were not required "to guard the vehicle or to wait with the unlicensed passenger until a licensed driver could be produced to take control of it." Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000). The defendant and the driver did not suggest a reasonable alternative to impoundment, and the police were not under an affirmative obligation to inquire of alternative dispositions to impoundment of the vehicle in these circumstances. See Commonwealth v. Eddington, 459 Mass. 102, 109 n.12 (2011) (no per se rule that police's failure to offer opportunity to make reasonable alternative arrangements for vehicle invalidates impoundment). Contrast Goncalves-Mendez, 484 Mass. at 85 & n.8 (where passenger could lawfully drive vehicle, police must offer this option before impounding vehicle).
The judge explicitly did not credit the defendant's testimony at the evidentiary hearing that he asked the police officers at the scene if he could contact his father to come and retrieve the vehicle, and that the police officers told the defendant he would be subject to arrest if he did not leave. We defer to the judge's credibility findings on these issues because she had the opportunity to observe and evaluate the witness. See Commonwealth v. McCowen, 458 Mass. 461, 469 (2010).
We recognize, of course, that the police are not precluded from making such an inquiry prior to impounding a vehicle. As the Supreme Judicial Court recently explained, "We discern no burden merely in asking the question; indeed, this practice would appear to further the goal of minimizing the inconvenience and risks to law enforcement officers that are associated with impoundment." Goncalves-Mendez, 484 Mass. at 85 n.8.
Moreover, as the judge concluded in ruling on the motion to suppress, the decision to tow the vehicle and conduct an inventory search was in accordance with the Lowell Police Department's tow and impoundment policy. That policy expressly provides that the police may tow a vehicle where the operator is arrested and no licensed passengers are present.
We reject the defendant's argument that the policy impliedly requires the police to inquire about alternatives to towing a vehicle in these circumstances. The portion of the policy that the defendant relies on for that proposition generally provides that "when assistance is being rendered or requested of them," the police should inquire whether the owner or operator of a vehicle has a preference for the particular tow firm used. That language falls well short of imposing the affirmative obligation that the defendant urges us to recognize. See Ellerbe, 430 Mass. at 777 ("Given the apparent compliance of the officer with the department's procedures, the judge's finding to that effect, and the defendant's failure to point to a specific departure from the procedures or to any misunderstanding by the officer of the procedures that actually harmed her, we cannot conclude that the search was unlawful due to a failure to follow departmental procedures").
In light of the totality of the circumstances, the Commonwealth met its burden of demonstrating the lawfulness of the decision to impound the vehicle. See Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 634-635 (2005) (impoundment decision reasonable where driver was arrested, vehicle's owner who was passenger had suspended license, and vehicle was stopped on side of road at night).
While the defendant does not challenge the scope of the search following the decision to impound and tow the vehicle, we note that the subsequent search which yielded the contraband was lawful on two distinct bases. First, as the judge found, the police officer had probable cause to search the vehicle after one of the firearms was discovered in plain view. Indeed, at the driver's request, the police officer retrieved a backpack from the back seat of the vehicle and reviewed documents therein because the driver contended that they demonstrated his license was not, in fact, suspended. After determining the documents were unrelated to the status of the driver's license, the police officer "tossed" the backpack into the back seat of the vehicle and knocked over the soft-sided cooler, which was open, causing its contents, including a handgun, to spill out. Once the police officer observed that handgun in plain view, he was authorized to search the entire vehicle. See Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 645 (2001).
Second, the police were separately authorized to conduct an inventory search of the vehicle prior to its tow. Pursuant to the Lowell Police Department's tow and impoundment policy, such an inventory search includes examination of all containers (like the cooler) for property. A valid inventory search would have resulted in the police discovering the contraband in the cooler and, once that discovery was made, the policy required that the police document, preserve, and store the contraband.
Given that the impoundment decision was lawful and that the search of the vehicle was valid for both the reasons described above, the motion to suppress was properly denied.
2. Sufficiency of evidence. The defendant next argues that the judge erred in denying his motion for a required finding of not guilty made at the close of the Commonwealth's case-in-chief and renewed at the close of evidence at trial, because the evidence that he possessed the contraband in the cooler was insufficient to support his convictions.
"When reviewing the denial of a motion for a required finding of not guilty, 'we 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. Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018).
To prove constructive possession, "the Commonwealth must show that the defendant knew of the existence of the item, and had the ability and intent to exercise dominion and control over it." Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019). These elements can be proved by circumstantial evidence and the reasonable inferences drawn therefrom. See id. Mere presence in a vehicle where contraband is discovered is insufficient to support an inference of constructive possession; however, the defendant's presence, coupled with a "plus factor," i.e., "other incriminating evidence," may suffice. Id., quoting Commonwealth v. Ortega, 441 Mass. 170, 174 (2004).
Here, a reasonable jury could have inferred the defendant's knowledge of the two firearms, magazines, and marijuana, as well his ability and intent to exercise dominion and control of those items based on his presence in the vehicle coupled with the location of the items. The guns, magazines and marijuana were inside an unzipped cooler filled with beer and "fresh" ice that had not yet melted on a ninety-degree day. Moreover, the cooler was on top of the defendant's clothes and personal belongings in the back seat of the vehicle. As the defendant explained to the police, his clothing and personal belongings were inside the vehicle because he "just" left his girlfriend's house following an argument and he had to move out all of his possessions.
Given the defendant's presence in and ownership of the vehicle, the proximity of the cooler to the defendant's personal belongings, and the evidence suggesting that the cooler was recently filled and placed in the vehicle, a reasonable jury could find that the defendant constructively possessed the items inside the cooler. See Commonwealth v. Antonio, 45 Mass. App. Ct. 937, 938 (1998) ("inference of possession may be drawn from the close proximity between these personal belongings and the drugs"). Contrast Santana, 95 Mass. App. Ct. at 269 (no constructive possession of contraband in glove compartment where children's items were in vehicle but no evidence that defendant, who was sole occupant and not owner of vehicle, had children). Therefore, the evidence presented at trial was sufficient to support the defendant's convictions.
While the defendant argues that the evidence more strongly suggests that the driver of the vehicle possessed the items in the cooler, we disagree. "[I]n this case, the evidence supports more than one reasonable inference and, therefore, it was for the jury to determine where the truth lies." Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 644 n.3 (2013).
To the extent that the defendant contends there was insufficient evidence of his intent to distribute the marijuana, we disagree. At trial, the Commonwealth proceeded on the theory that the defendant and the driver of the vehicle participated in a joint venture to sell marijuana. The evidence was sufficient to demonstrate intent to distribute under that theory given the digital scale recovered from the driver's pocket, cash totaling over $900 found in the two pockets of a pair of jeans seemingly belonging to the defendant, the police officer's observation that molding had been removed from the passenger side door of the vehicle consistent with a "hide" for contraband, the packaging of the marijuana in one larger and two smaller bags, and the presence of two firearms in the same cooler as the marijuana. See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 413 (2013). Contrast Commonwealth v. Humberto H., 466 Mass. 562, 567 (2013) (no probable cause that juvenile intended to distribute marijuana where no scale, cell phone, empty plastic bags, or cash recovered).
3. Expert testimony. The defendant also argues that the Commonwealth's expert, State Police Sergeant Edward Troy, was impermissibly permitted to comment on the defendant's guilt at trial.
The admission of expert testimony from narcotics investigators in drug cases is largely left to the discretion of the trial judge. See Commonwealth v. Miranda, 441 Mass. 783, 793 (2004). Where, as here, no objection was raised to such expert testimony at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Horne, 476 Mass. 222, 225-226 (2017).
Contrary to the defendant's assertion, Troy did not comment on the defendant's guilt. Rather, based on his training and experience, Troy testified on direct examination that a digital scale is "a tool of the trade in the distribution of narcotics," and, that firearms are the "most efficient" form of protection for someone engaged in the distribution of drugs as "a cash-carry business" where "it's common to get ripped off by people." That expert testimony was permissible as it was "directed to explaining things to the jury that were likely to lie outside of their experience," namely the significance of digital scales and firearms to the distribution of drugs. Commonwealth v. Lopez, 55 Mass. App. Ct. 741, 746 (2002).
The defendant takes issue with the fact that during this exchange, both the prosecutor and Troy referenced the marijuana "in this case." Although a formulation of the questions that asks whether an item is "consistent with" the distribution of drugs is preferred, as discussed infra, it is important here that Troy was not a percipient witness and did directly state an opinion that the defendant was involved in drug distribution. See Lopez, 55 Mass. App. Ct. at 746.
During redirect examination, Troy also explained that a drug dealer without a valid driver's license may employ someone else to drive his or her vehicle when transporting money or drugs because if pulled over, an unlicensed driver can be arrested and the vehicle can be towed and searched. While the defendant contends this testimony was mere conjecture or surmise, we disagree. This testimony was expressly based on Troy's experience as a narcotics investigator and did not exceed the bounds of that expertise.
Even if Troy's testimony did "cross[] the line between touching upon an ultimate issue and commenting on the defendant's guilt," we discern no prejudice in its admission. Commonwealth v. Woods, 36 Mass. App. Ct. 950, 952 (1994), S.C., 419 Mass. 366 (1995). Troy offered testimony solely as an expert and not separately as a percipient witness; therefore, his testimony lacked the "unique persuasive value" afforded to a witness who testifies in both capacities. Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 582 (1998). See Commonwealth v. MacDonald, 459 Mass. 148, 163 (2011) (distinguishing cases where expert was also percipient witness). Contrast Woods, 419 Mass. at 375 & n.13 (both police officers opined as to general practices of street drug dealers and also as to their belief that they observed drug transaction). Given the other evidence offered at trial tending to demonstrate the defendant's guilt, including his presence in the vehicle that he owned and the location of the contraband in the cooler, we are not persuaded that Troy's testimony challenged on this appeal materially influenced the guilty verdict.
Judgments affirmed.
By the Court (Vuono, Lemire & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 3, 2020.