COMMONWEALTH v. MEDINA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After finding a small quantity of drugs on an individual who had briefly entered and exited the defendant's car, the police arrested the defendant. They subsequently seized drugs and related evidence following a warrantless search of the car. After a jury trial, the defendant was convicted of trafficking in heroin, eighteen grams or more but less than thirty-six grams, G. L. c. 94C, § 32E (c), and distribution of heroin, G. L. c. 94C, § 32 (a). He now appeals, arguing that the motion judge erred in denying his motion to suppress the seized evidence, and that the trial judge violated his right to an attentive jury by failing to conduct a voir dire regarding a juror who appeared to enter a momentary doze on two occasions during the trial. We affirm.

Arrest and search. The following summary of the underlying facts is drawn principally from the motion judge's subsidiary findings, which are uncontested by the defendant. We supplement those findings slightly with unchallenged testimony from the motion to suppress hearing that the judge explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

On February 20, 2016, officers in a drug control unit were conducting surveillance in a commercial area in Boston known as a “hot spot” for drug trade. When officers in the unit noticed a person driving a rental car make several short telephone calls and “look[ ] around in a very obvious manner,” they followed him as he looped around the area multiple times and made two stops without emerging from the car. When the person finally got out of his rental car, he was approached by a Toyota Camry, which he entered as a passenger. The officers followed the Camry as it made a single loop of the area before depositing the person near his rental car. Believing they had just witnessed a “delivery type operation,” the officers immediately stopped the person and acted quickly to prevent him from swallowing a bag of heroin hidden in his mouth. Upon questioning by one of the officers, the person indicated that he had received the bag “[f]rom the guy in the Toyota that just dropped me off.” That officer then notified the members of the unit still trailing the Camry. The driver of the Camry, the defendant in this case, was promptly pulled over and arrested. The Camry was transported to a nearby police station, where it was searched “[p]retty much immediately.” Officers found money, cell phones, marijuana, and -- hidden in the interior ceiling on the driver's side of the vehicle -- sixteen individual bags of heroin.

The defendant argues that based on such facts police lacked probable cause to justify the search under the automobile exception. We disagree. A search is permissible under the automobile exception when “the police objectively have probable cause to believe a motor vehicle parked in a public place contains contraband, and provided that no unreasonable length of time elapses before the execution of the warrantless search.” Commonwealth v. Bell, 78 Mass. App. Ct. 135, 140-141 (2010), citing Commonwealth v. Eggleston, 453 Mass. 554, 558-559 (2009). Here, the putative buyer told police that he had just bought drugs from the defendant, confirming the officers' belief that they had observed a drug transaction. Even without seeing the hand-to-hand exchange inside the car, the officers had a solid basis to believe that the defendant was selling drugs out of his car.

Relying on Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651 (2005), the defendant argues that the police needed more to believe that additional drugs were located inside the Camry. We disagree. In Wade, there was a four-day delay between the issuance of a warrant and its execution. Id. at 650-651. It was in the context of that temporal break that we found an insufficient showing of probable cause that drugs would be present when the search was executed. Id. at 651-652. Here, by contrast, the defendant was stopped immediately after drugs were found on the buyer and before the defendant even had left his car.²

Jury trial. During the testimony of the final witness, defense counsel requested a sidebar to inform the judge that one of the jurors appeared to have dozed off. The judge responded that it was the first time he had noticed it. The prosecutor added, “I didn't notice it this time, I noticed it earlier, and then it was very brief because we stopped the case to open a window.” The judge suggested they bring the juror some water and break if it happened again. Both parties agreed. At the conclusion of the last witness's testimony, the judge returned to the issue to clarify the record, stating:

“I did not observe this juror in any kind of an extended sleeping. I did, I looked over once and saw what I think was a [momentary doze],3 but it did not last, at least by my observations, for more than five to ten seconds. That was my observation. And that's when I called the court officer over and that became the reason for everyone to get up. I'm not aware of any more extended dozing on the part of this or any other juror, and I've been keeping a pretty good eye on the jury throughout the trial. So my inclination is not to conduct a voir dire because I don't see any, any real basis for believing that she has missed any meaningful amount of testimony. But I will voir dire, counsel, if you think I should.”

Defense counsel confirmed that he had not witnessed any other moments of juror inattention, while the prosecutor reiterated that although he had not seen it the second time, he had observed an “extremely brief” moment during the fourth witness's testimony before they stopped to open a window. The judge repeated his offer to conduct a voir dire if either side requested one. Both sides declined, with defense counsel noting, “I have no concern, Your Honor. I'm not asking for a voir dire.”

The defendant argues that the judge nevertheless had a duty sua sponte to voir dire the juror, despite defense counsel's expressly declining the judge's offer to do so. According to the defendant, the judge's failure to conduct the voir dire constituted structural error. We are unpersuaded.

While “[a] judicial observation that a juror is asleep, or a judge's receipt of reliable information to that effect, requires prompt judicial intervention to protect the rights of the defendant,” Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009), “not every complaint regarding juror attentiveness requires a voir dire.” Commonwealth v. McGhee, 470 Mass. 638, 644 (2015), quoting Commonwealth v. Beneche, 458 Mass. 61, 78 (2010). See Dancy, supra (“the judge has discretion regarding the nature of the intervention and the remedies for any sleeping that has occurred. If the sleeping is observed at the outset or when the juror is beginning to ‘nod off,’ it is likely that a break or a stretch will suffice”). “The burden is on the defendant to show that the judge's decision in the matter was ‘arbitrary or unreasonable.’ ” Beneche, supra, quoting Commonwealth v. Brown, 364 Mass. 471, 476 (1973). The defendant has not met this burden. As noted, there was no evidence of anything more than two momentary dozes, and the judge stated on the record that he had not personally observed any extended sleeping, despite “keeping a pretty good eye on the jury throughout the trial.” In these circumstances, it was neither arbitrary nor unreasonable for the judge to respect the preference of both parties to avoid a voir dire. To suggest otherwise would be to adopt a per se rule of judicial intervention, which the case law does not require.

Judgments affirmed.

FOOTNOTES

2.   The delay between the defendant's arrest and the search of the Camry at the police station was not unreasonable. See Bell, 78 Mass. App. Ct. at 141-142 (warrantless search of car covered by automobile exception despite two and one-half hour delay between car's arrival at police impound lot and search). Because the search of the defendant's vehicle was justified under the automobile exception, we need not address whether it could have also been justified as a search incident to arrest.

3.   The transcript reads “monetary dose.” Read in context, this plainly was a typographical error.