COMMONWEALTH v. GOMES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in Superior Court, the defendant Jose Gomes was convicted of possession of a class B substance (cocaine) with intent to distribute, pursuant to G. L. c. 94C, § 32A (c).² On appeal, the defendant contends that the judge (i) erroneously denied his motion to suppress because the defendant was subject to custodial interrogation prior to receiving a Miranda warning and (ii) failed to give a missing evidence instruction sua sponte. We affirm.

1. Motion to suppress. Shortly after 4:00 a.m., on May 24, 2014, New Bedford Police Officer Jaime Wotton received a report from the defendant's girlfriend that the defendant had arrived at her home intoxicated, refused to leave, and threatened her if she did not drop charges stemming from a G. L. c. 209A restraining order that she had obtained against him approximately three weeks earlier.³ Distraught and fearful, she asked Wotton to help her remove the defendant and provided the keys to her apartment. Believing he had probable cause that the defendant had committed witness intimidation, Wotton went with New Bedford Police Officer Daniel Sweeney to the girlfriend's residence. They found the defendant asleep in a second-floor bedroom where, in plain view, Sweeney observed a sandwich box from which protruded a sandwich-sized baggie containing approximately 120 smaller baggies of crack cocaine. The officers awakened the defendant and handcuffed him.

At the time of his arrest, the defendant wore only underwear. The officers asked him to put on a pair of jogging pants. The defendant initially refused, but upon the officers' insistence, he agreed to wear the jeans that were draped over a chair in the adjoining room. Officer Sweeney retrieved the jeans, checked the pockets for weapons, and found almost $4000 in currency and four small baggies of crack cocaine. The defendant was not read his Miranda rights until he was at the police station, where, during the booking procedure, he insisted that he was on the lease of the apartment in which he was arrested.

Miranda warnings are required for custodial interrogation. See Commonwealth v. Torres, 424 Mass. 792, 796 (1997). Custodial interrogation exists when “a person in custody is subjected to either express questioning or its functional equivalent.” Id. at 797, quoting Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). “Functional equivalent” encompasses “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (quotations omitted).⁴ Torres, supra, quoting Innis, supra at 301.

Here, the officers' request that the defendant wear jogging pants was not interrogation. The request was an effort to avoid a humiliating experience for the defendant that might have constituted a “substantial intrusion on [his] personal privacy rights” and might have been a violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights (citation omitted). Commonwealth v. Morales, 462 Mass. 334, 339-340 (2012). Indeed, Sweeney testified that he wanted to avoid embarrassment to the defendant and potential future complaints against himself.⁵

The defendant's reliance on Commonwealth v. Rubio, 27 Mass. App. Ct. 506 (1989), is misplaced. In Rubio, officers, who had searched the defendant's apartment and found narcotics, arrested the defendant and then showed the defendant a pocketbook containing cocaine in a manner that was tantamount to asking the implicit question: “Is this yours?” Id. at 513. By contrast, here, although Sweeney had seen the cocaine before effecting the arrest, the defendant was not confronted with it. Instead, he was simply asked to put on clothing to protect his privacy. The judge properly denied the defendant's motion to suppress.

2. Sua sponte instruction. The defendant argues that the judge should have given an instruction, sua sponte,⁶ allowing the jury to draw a negative inference from the police losing particular pieces of evidence: a Massachusetts identification card, two cell phones, and the sandwich box.

When a defendant seeks relief from the loss of potentially exculpatory evidence, the defendant has the initial burden “to establish a reasonable possibility, based on concrete evidence” that access to the lost evidence “would have produced evidence favorable to his cause” (quotations and citations omitted). Commonwealth v. Williams, 455 Mass. 706, 716-717 (2010). A “reasonable possibility, based on concrete evidence” requires more than speculation or surmise about whether the defendant might have uncovered something of exculpatory value. Commonwealth v. Heath, 89 Mass. App. Ct. 328, 334 (2016).

Here, the defendant offers only speculation that there is a “50/50 chance” that the identification card, cell phones, and box would have belonged to someone other than him and thus been exculpatory. Compare Heath, 89 Mass. App. Ct. at 335 (defendant submitted affidavit that officer was aggressor and missing video would have shown same). Accordingly, the defendant was not entitled to an instruction. See Williams, 455 Mass. at 720.

Judgment affirmed.

FOOTNOTES

2.   The defendant was indicted for trafficking in cocaine, pursuant to G. L. c. 94C, § 32E (b) (2), and was found guilty of the lesser included offense. He was found not guilty of possession of a class B substance (oxycodone), pursuant to G. L. c. 94C, § 34.

3.   In reviewing a judge's denial of a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error,” and conduct an independent review of her ultimate findings and conclusions of law. Commonwealth v. Weaver, 474 Mass. 787, 793 (2016), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

4.   An “incriminating response” is any response, inculpatory or exculpatory, which the prosecution might seek to use against the suspect at trial. Commonwealth v. Gonzalez, 465 Mass. 672, 675 (2013).

5.   We need not reach the question whether the arrest of a suspect who is wearing underwear allows officers to search adjacent areas ostensibly for clothing for the suspect to wear as an exigency exception to the warrant requirement. See United States v. Nascimento, 491 F.3d 25, 50 (1st Cir. 2007). Here, the officers had the express consent of the girlfriend, the apartment owner, to enter her home.

6.   Because the defendant failed to request this instruction below, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Foster, 48 Mass. App. Ct. 671, 677 (2000).