Opinion
No. 12–P–100.
2013-09-16
COMMONWEALTH v. Stephen THOMPSON.
By the Court (BERRY, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to suppress, and from his convictions of possession of cocaine with intent to distribute, and a school zone violation. Regarding the motion to suppress, the defendant argues that there was not probable cause to arrest him and that the strip search, which uncovered the narcotics, was unconstitutional. Regarding the convictions, the defendant makes five principal arguments: (1) that evidence lost by the Commonwealth was exculpatory and material; (2) that the drug analysis certificates were improperly admitted, even though the chemist testified at trial; (3) that the prosecutor made improper remarks in his opening and closing statements; (4) that the judge incorrectly allowed expert testimony from the percipient police witness; and (5) that the evidence was insufficient to support both possession with intent to distribute and the school zone violation. We affirm the conviction for possession of cocaine with intent to distribute. However, for the reasons discussed below, we reverse the school zone conviction.
1. Motion to suppress. The defendant argues that his motion to suppress should have been allowed, for two reasons.
First, he claims that there was no probable cause to arrest him. We disagree. Officer Smith, a four-year veteran of the vice squad, surveilled an area of Worcester known to officers for its high levels of drug transactions. See Commonwealth v. Kennedy, 426 Mass. 703, 704 (1998). He twice saw the defendant walk with an individual behind a Dunkin Donuts, but return to the front alone while counting money. A third individual, Maisonet—whom Officer Smith knew to be a drug addict, see Commonwealth v. Gomes, 453 Mass. 506, 511 (2009)—walked with the defendant to the front of a school. Maisonet handed something to the defendant, who in turn removed a plastic sandwich bag from underneath the rear of his pants and pulled out a smaller item, which he passed to Maisonet. Maisonet placed the object in his mouth; the defendant replaced the sandwich bag under the backside of his pants. Officer Smith stopped Maisonet and asked him to open his mouth. Under his tongue, Officer Smith saw a small bag of what he believed to be crack cocaine. Before Officer Smith extracted the bag, Maisonet swallowed the item and exclaimed, “It's gone. It was only a twenty piece.”
We do not address the defendant's third argument—that the police description of the defendant broadcast over the police radio was insufficient to identify the defendant to the arresting officers—because it is waived on appeal for failing to argue it before the trial judge. See Commonwealth v. Barnes, 399 Mass. 385, 393–394 (1987).
Based on these facts, there was probable cause to believe that the defendant was engaged in the sale of drugs. Therefore, the defendant was lawfully arrested.
A “twenty piece,” according to Officer Smith, is street lingo for a piece of crack cocaine worth twenty dollars.
Next, the defendant argues that the strip search, which ultimately uncovered a sandwich bag with three smaller bags of crack cocaine, violated the Constitution and the Worcester police department's written strip-search policy. We disagree. A strip search must be “justified by probable cause to believe that the defendant had concealed [evidence] on his person ... that would not otherwise be discovered by the usual search incident to arrest.” Commonwealth v. Prophete, 443 Mass. 548, 554 (2005). Officer Smith's observations provided sufficient justification, under Prophete, for the strip search. He saw the defendant reach in the rear of his pants (under his clothes) remove a sandwich bag, and hand a smaller item to Maisonet. The defendant replaced the bag in the same area beneath his clothing. Because of these specific observations by Officer Smith, and because the ordinary search did not reveal the sandwich bag, there was probable cause to believe that evidence of the crime was concealed between the defendant's buttocks. The strip search was therefore justified and constitutional.
The strip search also complied with the department's written policy.
The defendant principally argues that Sergeant Supernor could not have properly supervised the search from outside the windowless patrol wagon. Contrary to this argument, nothing in the department's regulations requires the supervisor to personally observe the search. The motion judge correctly denied the defendant's motion to suppress.
Based on the facts presented by Officer Smith, his supervisor, Sergeant Supernor, authorized the search, which was conducted in a windowless patrol wagon by two male officers. Neither officer touched any part of the defendant's body; one merely plucked the bag, which was exposed near the top of the defendant's buttocks.
2. The failure to preserve the sandwich bag. The defendant next argues that because the Commonwealth lost the sandwich bag, testimony about it should not have been admitted. When a defendant claims that the Commonwealth has lost potentially exculpatory evidence, the defendant bears “the initial burden of demonstrating the exculpatory nature of that evidence,” which must be established by “reasonable possibility, based on concrete evidence.” Commonwealth v. Williams, 455 Mass. 706, 718 (2010).
The defendant has not met this burden.
If the defendant meets this burden, the court then “balance[s] the Commonwealth's culpability, the materiality of the evidence, and the prejudice to the defendant in order to determine whether the defendant is entitled to relief” (footnote omitted). Ibid.
The defendant contends that the outside of the bag may have contained traces of biological or fecal matter, which would have supported his argument that the bag was fully secreted within his anal cavity rather than merely placed between his buttocks (as the police witnesses testified).
This argument fails for two reasons. First, whether the bag contained such matter is purely speculative, yet Williams requires a “reasonable possibility, based on concrete evidence,” that the evidence is exculpatory. See ibid., quoting from Commonwealth v. Neal, 392 Mass. 1, 12 (1984). And second, common sense dictates that merely placing the bag the between the buttocks would not necessarily eliminate the potential accumulation of biological matter on the bag. So the fact finder would still be required to credit the defendant's testimony or the police officer's regarding the location of the bag. Although the $110 found on the defendant was also lost, the defendant's argument fails because the denomination of the bills was purely speculative. Therefore, the defendant has not demonstrated that the lost evidence was potentially exculpatory.
The distinction is not trivial. While a strip search or visual cavity search may proceed on probable cause to believe that evidence is still hidden on the body after a routine search, see Commonwealth v. Prophete, 443 Mass. at 553–554, a manual cavity search must be performed by a medical professional and only under the authority of a search warrant issued by a judge under a heightened standard of probable cause. See Rodriques v. Furtado, 410 Mass. 878, 888 (1991).
3. Drug analysis certificate. Although the chemical analyst testified (and was cross-examined), the defendant claims a Melendez–Diaz violation because the judge ruled that the certificate would be admitted only after the analyst had completed her testimony. There is no merit to this argument. The defendant had a full and fair opportunity to cross-examine the analyst, and Melendez–Diaz requires no more. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009), quoting from Crawford v.. Washington, 541 U.S. 36, 54 (2004) ( “[T]he [certificates] were testimonial statements, and the analysts were ‘witnesses' for purposes of the Sixth Amendment.... [P]etitioner was entitled to ‘be confronted with’ the analysts at trial”). The analyst here was subject to cross-examination (and was indeed cross-examined), so there was no Melendez–Diaz violation.
4. Opening and closing remarks by the prosecutor. The defendant claims that a series of remarks by the prosecutor in his opening and closing statements tainted the trial. First, he argues that the prosecutor improperly aligned himself with the jurors by repeatedly using “we” and “us.” “Although it is preferable that counsel avoid arguing in a form that seeks to engage the jury with him or her personally, such argument is not improper. It is merely a means of involving the jury and suggesting that the prosecutor and the jury review the evidence together.” Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011). Even in Commonwealth v. Burts, 68 Mass.App.Ct. 684, 688–689 (2007), where we expressed serious concern over the prosecutor's continual use of “we,” we ultimately held that there was no substantial risk of a miscarriage of justice. We reach the same result here.
Second, the defendant contends that the prosecutor discussed facts that were not in evidence during the opening and the closing. In his opening, the prosecutor stated that Officer Smith would testify to an exchange of what “looked like money.” This evidence did not materialize, but based on the facts of the case, it was reasonable for the prosecutor to expect Officer Smith to discuss such an exchange. See Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 51 (2003). There was thus no error.
In his closing, the prosecutor claimed, incorrectly, that Officer Smith observed the defendant engage in “transactions” and “exchanges” with two individuals.
Although the prosecutor should not have cast these meetings as “transactions” or “exchanges,” it was certainly a fair inference that these meetings were, in fact, drug transactions. Accordingly, we think that the defendant suffered no prejudice from these mischaracterizations, especially considering that the lynchpin of the case was the defendant's meeting with Maisonet, where Officer Smith did observe an exchange.
Officer Smith testified only that he saw the defendant meet with individuals in front of a Dunkin Donuts, walk with them behind the building, and then return alone while counting money.
Third, the defendant contends that the prosecutor's impermissible vouching for the Commonwealth's witnesses requires us to reverse. The prosecutor did improperly inject his personal belief of witness credibility, but the defendant suffered no prejudice. In the middle of the closing statement, defense counsel objected to the vouching. After a brief sidebar, the judge asked the jury to disregard the vouching, explaining that they are the sole arbiters of witness credibility. This forceful and specific curative instruction—in the middle of the Commonwealth's closing statement, no less—removed any potential prejudice to the defendant. See Commonwealth v. Bolling, 462 Mass. 440, 455 (2012).
The improper remarks during opening and closing statements, taken individually or cumulatively, did not create reversible error or a substantial risk of a miscarriage of justice.
5. Expert opinions from percipient police witness. The defendant next claims that the judge improperly admitted expert opinions from a percipient police witness. This argument stems from Officer Smith's testimony that he “radioed to other members of the vice squad that I had seen what I believed to be a drug transaction, and I asked for assistance ... in stopping the individuals” (emphasis added). The defendant argues that, in the emphasized portion of the statement, Officer Smith improperly expressed an opinion of the defendant's guilt.
In addressing this issue, our courts have permitted police officers using “consistent with” locution, but have disapproved the use of “belief” locution. See Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 580 (1998). Although Officer Smith did say “believed,” the remark must be analyzed in the context of his entire answer, for we will not read the underscored portion in complete isolation. When read in this light, it is clear that the crux of Officer Smith's answer was that he radioed for back up, and that the emphasized portion merely gave, in an offhand way, the reason for the call. Contrast Commonwealth v. Andujar, 57 Mass.App.Ct. 529, 531 & n. 2 (2003) (prosecutor asked what police witness believed he saw, and witness responded, “I believe they were street narcotic transactions”). There was, in short, no prejudice.
We reach the same conclusion for the defendant's argument regarding the identification of the substance swallowed by Maisonet. Officer Smith saw the defendant remove a small item from the sandwich bag, and he saw Maisonet place that item in his mouth. When recovered from the defendant, the sandwich bag had three small rocks, one of which was determined to be cocaine by a chemical analyst. Because drugs were found on the defendant, this case is unlike Commonwealth v. Lovejoy, 39 Mass.App.Ct. 930, 931–932 (1995), where we reversed because the officers testified that they observed an individual swallow crack cocaine, yet they found no drugs on the alleged dealer or on the buyers.
6. Sufficiency of the evidence—possession charge. The defendant argues that the evidence of possession with intent to distribute was legally insufficient. We disagree. Although there may have been no direct evidence of a drug transaction, the circumstantial evidence was more than sufficient to support the conviction.
Specifically, Officer Smith twice observed, in a high crime area, the defendant walk with an individual behind a Dunkin Donuts and return alone while counting cash. A third individual, Maisonet, approached the defendant. Officer Smith saw Maisonet hand something to the defendant, who (after suspiciously scanning the area) removed a sandwich bag from the backside of his pants, extracted a smaller item, and handed that item to Maisonet. Maisonet put the item in his mouth—an item that Officer Smith believed to be cocaine when he later confronted Maisonet.
The item in Maisonet's mouth also looked like the three small packages found in the sandwich bag that was removed from the defendant. A chemical test revealed that one of the three chunks was cocaine. Based on this evidence, a rational jury could conclude that the defendant possessed the cocaine with intent to distribute.
Unlike at the suppression hearing, Officer Smith did not testify that he knew Maisonet to be a drug addict or that Maisonet exclaimed, “It was only a twenty piece.”
This evidence does not, as the defendant suggests, create an equal but inconsistent inference of possession for personal use. Commonwealth v. Croft, 345 Mass. 143, 145 (1962). The search of the defendant revealed no drug paraphernalia, see Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) (absence of smoking paraphernalia and packaging of drug consistent with distribution), and the small amount of drugs discovered does not mitigate the evidence of distribution, see Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 731 (1992) (dealer's inventory may have been reduced by sales before the arrest). There was more than enough circumstantial evidence to permit the jury to infer an intent to distribute. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (“A person's ... intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference form all the facts and circumstances developed at trial”).
7. Sufficiency of the evidence—school zone violation. Finally, the defendant argues that there was insufficient evidence that the school near which the drug transaction took place was one of the types of schools enumerated in G.L. c. 94C, § 32J. We agree. A conviction under G.L. c. 94C, § 32J, requires that a drug offense be committed “within one thousand feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school whether or not in session.” G.L. c. 94C, § 32J, as amended by St.1998, c. 194, § 146.
Under this statute, “the Commonwealth is required to produce sufficient evidence to establish that the school is one of the types enumerated in the statute” (footnote omitted). Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 730 (1992).
This is the version of the statute in place during the events of this case. In a recent amendment, the Legislature reduced the school zone from within 1,000 feet of a school to within 300 feet. St.2012, c. 192, § 30.
In Gonzales, the only evidence used to support the school zone violation was a police witness identifying the nearby school as “Worcester Academy.” We reversed, reasoning that “testimony only as to the name of the school (‘Worcester Academy’) does not give any indication whether the school falls within one of the statutory categories and, therefore, does not satisfy the Commonwealth's burden of proving this element beyond a reasonable doubt.” Ibid. See Commonwealth v. Vasquez, 33 Mass.App.Ct. 950, 950 (1992) (name of school alone, the “Woodland Street School,” was not legally sufficient). This case is no different. Officer Smith testified that the defendant sold drugs to Maisonet on the sidewalk in front of a school “called Worcester Central Catholic, or Saint Peter's.” He did not state that he had personal knowledge that this was an elementary school, or that he had seen children arriving on buses or walking with books. See Gonzalez, supra at 730 n. 1. See also Commonwealth v. Williams, 54 Mass.App.Ct. 236, 245 n. 11 (2002) (evidence sufficient where police witness, who once worked as a crossing guard at the school, testified that school's name was “St. Patrick's Elementary School,” and that children ages five to ten, including his godchildren, attended the school); Commonwealth v. Laro, 68 Mass.App.Ct. 556, 559 (2007) (evidence sufficient where witnesses testified that school was a parochial school and that they saw children carrying books arrive on school buses). Nor did Officer Smith adopt, as the Commonwealth asserts, the prosecutor's characterization of the school as the “Saint Peter Central Catholic Grammar School.” The substance of this question sought to flesh out the defendant's proximity to the school, not to establish that the school met the criteria of G.L. c. 94C, § 32J. With Gonzalez as controlling precedent, we must conclude that the evidence of the school zone violation was legally insufficient.
The defendant did not raise this argument in his motion for a required finding of not guilty, but “findings based on insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867–868 (1986).
8. Conclusion. The judgment on the indictment charging possession with intent to distribute is affirmed. The judgment on the indictment charging a school zone violation is reversed, the verdict is set aside, and judgment is to enter for the defendant.
So ordered.