COMMONWEALTH v. DURAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of possession of a class B substance with the intent to distribute and operating a motor vehicle with a suspended license. On appeal, he challenges (1) the denial of his motion to suppress all evidence obtained following the stop of his motor vehicle, (2) the denial of his motion for a required finding of not guilty, and (3) the adequacy of the jury instructions. For the reasons below, we affirm both the denial of the motion to suppress and the defendant's convictions.

1. Motion to suppress. The defendant first argues his motion to suppress should have been allowed because the police did not have probable cause to believe he had committed or was committing an offense. On review, we accept the motion judge's findings of fact unless clearly erroneous, see Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018), supplementing them with uncontroverted facts adduced at the hearing that were explicitly or implicitly credited by the judge, in order to complete the sequence of the events. See Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 (2007). We conduct an independent review of the judge's application of the law. Commonwealth v. Clarke, 461 Mass. 336, 340 (2012).

On September 19, 2016, the police stopped and arrested the defendant after they saw him engage in what they believed was drug-related activity with William Hannigan. The police acted permissibly in arresting the defendant. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). At the time the officers stopped the defendant on September 19, the police had probable cause to arrest the defendant for two crimes that had occurred ten to fourteen days earlier: (1) the sale of crack cocaine to a confidential informant during a controlled buy, and (2) operating with a suspended or revoked license, which the police observed at the time of the controlled buy, when the registry of motor vehicles records showed that the defendant's license was suspended.² The fact that the police continued their investigation for ten to fourteen days before arresting the defendant did not render the arrest improper: “Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” Commonwealth v. Piso, 5 Mass. App. Ct. 537, 541 (1977), quoting United States v. Hoffa, 385 U.S. 293, 310 (1966). See Commonwealth v. Walker, 370 Mass. 548, 560 (1976), quoting United States v. Watson, 423 U.S. 411, 449 (1976) (Marshall, J., dissenting) (“Unlike probable cause to search, probable cause to arrest, once formed will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light”). Moreover, that the defendant was ultimately indicted for offenses occurring on September 19 is immaterial since “[t]he subjective beliefs of the police officers are not conclusive on this issue.”³ Commonwealth v. Hason, 387 Mass. 169, 175 (1982) (“The inquiry into probable cause is an objective one, requiring ․ a determination whether the facts would warrant a ‘reasonable’ person in believing the action taken to be appropriate”).

We likewise conclude that the police acted properly in their search of the defendant's vehicle, a Ford Flex, and the seizure of the drugs found inside. Under the “automobile exception” to the warrant requirements under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the police may conduct a warrantless search of an automobile where the vehicle is stopped in a public place and the police have probable cause to believe that it contains contraband or evidence of a crime. See Commonwealth v. Eggleston, 453 Mass. 554, 554 (2009); Commonwealth v. Raspberry, 93 Mass. App. Ct. 633, 642-643 (2018). Like the motion judge, we conclude that the information known to the police at the time they stopped the defendant, including the defendant's sale of drugs to the confidential informant ten to fourteen days earlier; their observations of the defendant's brief drive with Hannigan, consistent with drug-related activity; the defendant's reaching for or placing something on the vehicle floor before exiting the vehicle; and the defendant's implausible story suggesting that Hannigan's trip was a “gypsy cab” fare, cumulatively established probable cause to believe that the defendant was engaged in illegal activity. See Commonwealth v. Kennedy, 426 Mass. 703, 709 (1998) (police officer's opinion, based on training and experience, that behavior was consistent with drug deal relevant to probable cause determination); Commonwealth v. Motta, 424 Mass. 117, 121-122 (1997) (prior controlled buys of drugs provided probable cause to search vehicle); Commonwealth v. Concepcion, 10 Mass. App. Ct. 613, 616 n.2 (1980) (furtive gesture relevant in probable cause determination). There was no error in the denial of the defendant's motion to suppress.

2. Required finding of not guilty. The defendant argues that the trial judge erred in denying his motion for a required finding of not guilty based on the insufficiency of the evidence of both the defendant's constructive possession of the cocaine found in the Flex, and his intent to distribute it. We review the denial of a motion for a required finding of not guilty under the familiar Latimore standard, resolving issues of witness credibility in favor of the Commonwealth, Commonwealth v. Dilone, 385 Mass. 281, 286 (1982), and asking “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). “The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.” Commonwealth v. Fickling, 434 Mass. 9, 14 (2001), quoting from Commonwealth v. Lydon, 413 Mass. 309, 312 (1992).

“In order to prove that a defendant constructively possessed contraband, the evidence must be sufficient to permit the jury to infer that the defendant had knowledge of the contraband, as well as the ability and intention to exercise dominion and control over it.” Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 (2018). The Commonwealth may rely on circumstantial evidence to prove possession, see Commonwealth v. Garcia, 409 Mass. 675, 686 (1991), and while mere presence in an area where contraband is found is not sufficient to show the “requisite knowledge, power, or intention to exercise control over the [contraband], presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.” Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989), quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977).

Here, the evidence that the defendant possessed the drugs found in the car was not limited to his being the driver of that car; it also included his turning in the driver's seat toward the center console of the car while reaching back with his right hand, a gesture one experienced member of the police department's drug control unit believed to have been the defendant's placing something behind the driver's seat, as well as the “meaningless ride” with Hannigan, conduct consistent with the purchase and sale of drugs. The “incriminating evidence” supplementing that of the defendant's presence in the same vehicle in which the drugs were found was sufficient under Latimore to show possession of those drugs. See, e.g., Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013); Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 592-593 (2007); Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998).

Viewed under the Latimore standard, the evidence of distribution was also sufficient to overcome the defendant's motion for a required finding of not guilty. “The two basic elements for conviction of possession with the intent to distribute cocaine are (1) knowingly possessing the drug and (2) intending to transfer it physically to another person.” Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 355 (2010) (intent to sell may be inferred from evidence of sale). “[I]n certain situations, an illegal drug transaction may be inferred from other circumstances even if what is transferred is not actually seen.” Commonwealth v. Soto, 45 Mass. App. Ct. 109, 112 (1998). On this point, in addition to the evidence outlined above in support of possession, a reasonable fact finder could consider the defendant's implausible explanation of the “meaningless ride” with Hannigan; the police's subsequent discovery of money but few drugs in the defendant's possession, and drugs but little money in Hannigan's possession; the absence of any paraphernalia associated with drug use on the defendant or in the Flex; and the evidence that the Flex was a rental car, along with testimony that drug sellers often use rental cars in order to make deliveries while protecting their identities. Taken together, this evidence was sufficient to allow a rational fact finder to find that the defendant had the intent to distribute the contraband found in the Flex. See Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471 (2018) (sufficient evidence of distribution included defendant's participation in “ride to nowhere,” brevity of interaction between defendant and vehicle's driver, and money recovered from defendant's person and recovery of drugs from vehicle's driver). The judge did not err in denying the motion for a required finding of not guilty.

3. Jury instructions. The defendant's final argument is that the trial judge erred by failing to instruct the jury on the element of intent. “We evaluate jury instructions as a whole and interpret them as would a reasonable juror.” Commonwealth v. Kelly, 470 Mass. 682, 697 (2015), citing Commonwealth v. Trapp, 423 Mass. 356, 361, cert. denied, 519 U.S. 1045 (1996). In instructing the jury, “[w]e do not require that judges use particular words, but only that they convey the relevant legal concepts properly.” Id. As the defendant did not object to the instructions as they were given, we determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013). “An error creates a substantial risk of a miscarriage of justice unless [the reviewing court is] persuaded that it did not ‘materially influence’ the guilty verdict. In making that determination, we consider [1] the strength of the Commonwealth's case against the defendant, [2] the nature of the error, [3] whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the jury's result might have been otherwise but for the error,’ and [4] whether it can be inferred ‘from the record that counsel's failure to object was not simply a reasonable tactical decision.’ ” Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 240-241 (2012), quoting Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 425 (2003).

We discern no error in the judge's instructions. The judge's final instructions on the offense at issue were taken from the Criminal Model Jury Instructions for Use in the District Court § 7.800 (2009 ed.) (Distribution of a Controlled Substance). The instruction, both as written and as read by the judge to the jury, identified intent as an element of the offense: “the second element the Commonwealth must prove is possession with intent to distribute.” While the model instruction included a subsidiary section, which the judge did not read, providing the jury with guidance in determining whether any drugs that the Commonwealth proved were in the defendant's possession were for personal use or for distribution, the omission of the subsidiary instruction did not result in a failure to instruct on the required elements of the charge. Cf. Commonwealth v. McCray, 93 Mass. App. Ct. 835, 845 (2018) (joint venture instruction inadequate where requisite intent for accomplice omitted “dangerous weapon” aspect of assault and battery charge). The instruction as the judge gave it was adequate on the issue of intent. See Commonwealth v. Wood, 90 Mass. App. Ct. 271, 285 (2016); Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 808 (2008). Even had the failure to instruct more comprehensively on intent been error, viewing the instructions as a whole, including the fact that during the trial and before final instructions, the jurors were twice instructed specifically on intent,⁴ we are not persuaded that the error would have materially influenced the verdict. See Eberle, 81 Mass. App. Ct. at 240-241.

Judgments affirmed.

FOOTNOTES

2.   The Commonwealth argues that based on their awareness that the defendant's driver's license had been suspended at the time of the controlled buy ten to fourteen days before the September 19 stop, the police had probable cause to believe that he was again operating with a suspended license on September 19. The defendant argues that by the time of the stop, the information about the defendant's license suspension was too stale to provide probable cause. In light of our conclusion that the police had probable cause to arrest the defendant on other grounds, we do not decide this issue.

3.   Officer O'Brien stated at the motion to suppress hearing that the defendant was placed under arrest at that point for “operating after suspension.” However, Detective Duran stated that the reason “for stopping him was I believed he had just engaged in a drug transaction,” and “the probable cause for this arrest report is from what I saw between Mr. Hannigan and [the defendant] and also [the defendant]'s revoked driver's license.” The officers were authorized to arrest the defendant for operating with a suspended license under G. L. c. 90, § 21. Moreover, even if probable cause to arrest for distribution of controlled substances was not established at the time of the initial arrest, an issue we do not decide here, it certainly existed once the police received a report from the officers who had apprehended Hannigan after he left the defendant's car that Hannigan possessed cocaine. See Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 665-666 (2016) (probable cause to arrest where known drug dealer engaged in conduct experienced officers believed to be drug exchange in area known for drug dealing).

4.   The instructions that the judge read to the jury at earlier points in the trial included as an element “[t]hat the defendant had the specific intent to distribute, manufacture or dispense the controlled substance.”