COMMONWEALTH v. JIMENEZ MARTINEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Oliver F. Jimenez-Martinez, appeals from his convictions of trafficking heroin over eighteen grams, and possession of cocaine with intent to distribute. See G. L. c. 94C, § 32E (c) (1), and G. L. c. 94C, § 32A (b), respectively. Jimenez-Martinez contends on appeal that (1) evidence of drugs found in his car should have been suppressed, (2) the jury were improperly instructed regarding inferences that could be drawn from his ownership of the car, (3) the evidence was insufficient, and (4) uncharged acts were improperly admitted. We affirm.

Discussion. 1. Motion to suppress. Jimenez-Martinez contends that the police lacked probable cause to search his car because there was insufficient reason to believe that it contained additional drugs. Jimenez-Martinez argues further that there is clear error in the judge's findings on his motion to suppress, because the findings that Jimenez-Martinez “had arrived moments earlier but parked about 100 yards away,” and that this was “suspicious to police,” were not supported by testimony at the hearing.

“In reviewing the denial of a motion to suppress, we accept the motion judge's ‘subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law.’ ” Commonwealth v. Tavares, 482 Mass. 694, 699 (2019), quoting Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). “The judge's subsidiary findings may be supplemented with uncontroverted and undisputed evidence where the judge explicitly or implicitly credited the witness's testimony” (quotations omitted). Tavares, supra, quoting Jones-Pannell, supra.

The “police are permitted to search a vehicle based upon probable cause to believe that it contains evidence of a crime.” Commonwealth v. Davis, 481 Mass. 210, 220 (2019), citing Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997). “The issue of paramount importance is whether the police, prior to the commencement of a warrantless search, had probable cause to believe that they would find the instrumentality of a crime or evidence pertaining to a crime in the vehicle.” Davis, supra, quoting Commonwealth v. Johnson, 461 Mass. 44, 49 (2011).

Here, regardless whether the judge's findings about the location of the car and the officers' suspicion about it were in error,² there was probable cause to believe Jimenez-Martinez's car contained drugs. Officer Ferranti and another officer had previously observed an unidentified Hispanic man selling drugs from a different car with the same license plate, registered to the defendant, at least twice in the prior six months. Ferranti had used a confidential informant to perform two controlled purchases of drugs in the car from Jimenez-Martinez within the prior three months.³ Immediately before the defendant's arrest, the police observed Jimenez-Martinez meet with Steve Schofield, who admitted to the police that Jimenez-Martinez had just sold him heroin. The officers had observed Schofield's house on the basis of a report from a confidential informant; the informant reported that he had seen a person in a Volvo with the same license plate sell drugs to Schofield.⁴ Finally, before the police searched the interior of the car,⁵ a State police dog that sniffed the car's exterior gave a “head snap,” a preliminary, though not final, indicator of the presence of narcotic odor within the Volvo.

Once the police officers learned that Jimenez-Martinez had just sold heroin to Schofield, and the dog gave a preliminary signal, they had probable cause to believe they would find additional drugs in his car. The officers knew from prior observations and controlled buys that Jimenez-Martinez used his car to sell drugs.⁶ The police dog's preliminary indication that it smelled the odor of narcotics in the car further buttressed the fact that there was probable cause to believe there were additional drugs in Jimenez-Martinez's car.

2. Jury instruction. When the police officer opened the Volvo's door, the dog sniffed and gave the final signal that there was a narcotic odor in the center console. The police pried open an aftermarket panel in the console to recover heroin and cocaine. Evidence of the hide and the drugs found was admitted at trial.

Jimenez-Martinez maintains that the trial judge erred by responding to a jury question with an inaccurate instruction regarding knowledge of the drugs in the hide. The jury asked: “By owning the car does that mean by law that he knows the drug or hide is there? Please clarify.” The trial judge instructed that he had “no law on this point or any other additional point to give” the jury, and that “[t]o the extent that [the jury's] question raises an issue of fact,” “issues of fact are solely for the jury to decide, not for the court.” The defendant contends that the trial judge's instruction misstated the law because he did not explicitly state that ownership alone was insufficient to establish knowledge of the hide as a matter of law. See Commonwealth v. Romero, 464 Mass. 648, 658 (2013).

“Because he did not object to the instructions at trial, we review his claims to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice.” Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 822 (2019), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). To determine whether there was error, “we consider the charge, taken as a whole, and assess the possible impact of [an] alleged error on the deliberations of a reasonable juror, i.e., whether a reasonable juror could have used the instruction incorrectly.” Commonwealth v. Silva, 482 Mass. 275, 288 (2019), quoting Commonwealth v. Rosa, 422 Mass. 18, 27 (1996).

There was no error. It may have been more precise for the judge to have instructed the jury explicitly that ownership was insufficient, standing alone, to establish knowledge as a matter of law. See Romero, 464 Mass. at 658. However, the judge's instruction accomplished the same thing by making it clear that knowledge was a factual question to be decided by the jury. Where an element of the charged offenses was decided as an issue of law, the judge said as much in his original jury charge (e.g., the judge had defined heroin and cocaine as controlled substances as a matter of law). Additionally, the judge's original instruction on knowledge made it clear that knowledge was a matter of fact (“A person's knowledge, like his or her intent, is a matter of fact ․”). Here, the record was replete with other facts suggesting knowledge -- this was not a case of ownership alone. A reasonable juror, considering “the charge, taken as a whole,” could not have understood the judge to suggest that ownership of the car meant, as a matter of law, that Jimenez-Martinez knew about the drug hide or its contents. Silva, 482 Mass. at 288.

3. Sufficiency. Jimenez-Martinez maintains that the Commonwealth failed to provide sufficient evidence of knowledge of drugs in the car to permit a reasonable jury to find that he constructively possessed the drugs beyond a reasonable doubt. See Commonwealth v. Santana, 95 Mass. App. Ct. 265, 267 (2019).

“To show 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 ․ These elements can be shown by circumstantial evidence, and by the reasonable inferences from such evidence” (citations omitted). Santana, 95 Mass. App. Ct. at 268. “[A] sufficiency of the evidence evaluation for constructive possession is necessarily fact-specific, and turns on the totality of the evidence.” Id. “Here the critical question is whether there was sufficient evidence of knowledge -- that the defendant knew of the presence of the cocaine [and heroin]. The [plus] factors that may have relevance to that inquiry include, among others, who owned or had control over the car, whether anyone else was present in the car, whether the contraband was in plain view or hidden, the demeanor of the defendant, including whether he took any evasive actions, and any additional facts that tend to show that the defendant knew of, or had control of, the contents of the car.” Id.

Of the above “plus factors,” the following were present. Jimenez-Martinez owned and had control over the car and no one else was present in it. See Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 638 (2005). The drugs were hidden but the aftermarket wiring leading to the hide was in plain sight. Additionally, police had just observed Jimenez-Martinez sell drugs to Schofield, which tends to suggest he had knowledge and control of the drugs in his car one hundred yards away. See Commonwealth v. Clark, 446 Mass. 620, 624-625 (2006). Cf. Commonwealth v. Washington, 50 Mass. App. Ct. 167, 169 (2000).

This case is unlike Commonwealth v. Movilis, 46 Mass. App. Ct. 574 (1999), on which Jimenez-Martinez relies for his argument that there was insufficient evidence of knowledge because the Commonwealth offered no testimony linking the heroin sold to Schofield and the heroin found in the defendant's car. In Movilis, the Commonwealth offered evidence that Movilis and another person were seen beside a table in a cafe on which sat a small quantity of cocaine, and had driven to the cafe in a car in which police discovered a hidden compartment containing more cocaine. Id. at 576. As here, there was no testimony suggesting any similarity in packaging or form between the small quantity of cocaine in the cafe and the larger quantity in the car. Id. at 577. The compartment containing cocaine in the car was hidden, and there was no evidence suggesting that Movilis was aware of the compartment. Id. at 579.

By contrast, in this case, the aftermarket wiring running to the compartment was “obvious[ ],” and an officer who opened the driver's side door noticed it “immediately.” The conspicuousness of the wiring leading to the compartment in this case is probative of Jimenez-Martinez's knowledge of the compartment and its contents, unlike the hidden compartment in Movilis. A rational trier of fact could have found that Jimenez-Martinez had knowledge of the compartment and its contents. Santana, 95 Mass. App. Ct. at 267.

4. Uncharged acts. Jimenez-Martinez argues that trial testimony regarding the drug task force's observation of Schofield's house and the defendant's sale of heroin to Schofield was unfairly prejudicial testimony about an uncharged prior bad act. We review evidentiary rulings involving prior bad acts for an abuse of discretion. Commonwealth v. Denton, 477 Mass. 248, 250 (2017).

In general, “[e]vidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). See Mass. G. Evid. § 404(b)(1) (2019). “However, such evidence may be admissible for some other purpose, for instance, ‘to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.’ ” Crayton, supra, quoting Commonwealth v. Walker, 460 Mass. 590, 613 (2011). See Mass. G. Evid. § 404(b)(2) (2019). “Even if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Crayton, supra. See Mass. G. Evid. § 404(b)(2).

Here, the challenged testimony was admissible to establish Jimenez-Martinez's knowledge of the drugs in the center console of his car, which was an element of the crimes with which he was charged.⁷ The trial judge gave a limiting instruction that the testimony was for background information only, and the Commonwealth argued that the “five second meeting” with Schofield was relevant for determining whether Jimenez-Martinez had knowledge of the drugs. In short, the evidence of uncharged acts was offered and used for an appropriate, nonpropensity purpose.

Finally, unfair prejudice did not outweigh the probative value of the testimony. See Mass. G. Evid. § 404(b)(2). Jimenez-Martinez's conduct immediately preceding his arrest was highly probative of his knowledge of the drugs, and there is little danger of unfair prejudice where the judge provided a limiting instruction and the Commonwealth's closing argument suggested only permissible, nonpropensity uses for the evidence.

Judgments affirmed.

FOOTNOTES

2.   Jimenez-Martinez contends that, because the motion judge sustained an objection to Officer Ferranti's testimony that another officer observed Jimenez-Martinez's Volvo turn onto Sartell Road, there was no testimony suggesting that Jimenez-Martinez arrived in a vehicle and parked on the side of the road. However, “hearsay is admissible in a motion hearing relating to suppression.” Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 168 n.2 (2001). See Mass. G. Evid. § 1101(d) (2019) (“The law of evidence does not apply with full force at motion to suppress hearings”). Moreover, when evaluating a motion to suppress, “the knowledge of one [police officer] ․ [is] the knowledge of all.” Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 325 n.5 (2015), quoting Commonwealth v. Zirpolo, 37 Mass. App. Ct. 307, 311 (1994). Accordingly, the motion judge could have considered Officer Ferranti's struck testimony that “another detective had observed Mr. Jimenez-Martinez ․ operate on Woodland Road onto Sartell Road.”But even if that testimony had properly been struck as hearsay, the motion judge could have made the same factual findings based on Officer Ferranti's testimony about his own observations regarding the direction Jimenez-Martinez walked from to arrive at Schofield's driveway, and the location of Jimenez-Martinez's car when Officer Ferranti approached Jimenez-Martinez.

3.   The motion judge found that police had observed the different car with the same license plate used for “a drug transaction 2 years earlier. Officer Ferranti recognized the defendant as the seller in that sale and in another sale.” This was clear error, because Officer Ferranti's uncontroverted and implicitly credited testimony referred to four observed drug transactions that had occurred in the prior six months. See Tavares, 482 Mass. at 699. The error, however, was harmless because Officer Ferranti's testimony about a greater number of observations in a more recent time frame provides stronger support for a finding of probable cause than the facts found by the judge.

4.   Although Jimenez-Martinez does not contest the reliability of the informant's tip, we note that Officer Ferranti testified that the informant was someone with whom he had worked before, who was familiar with what a “street-level drug transaction looked like,” and that the informant provided detailed information about the car he observed. See Commonwealth v. Arias, 481 Mass. 604, 618-619 (2019).

5.   After he called for a drug-sniffing dog but before the dog arrived, Officer Ferranti opened the driver's side door of the Volvo and noticed aftermarket wiring that he believed to be part of a drug hide. We do not consider whether that observation was the product of a search supported by probable cause, because the police dog's subsequent exterior sniff was not a result of that earlier search, and the police thereafter searched the car with probable cause. See generally Wong Sun v. United States, 371 U.S. 471 (1963).

6.   The defendant's reliance on Commonwealth v. Wade, 64 Mass. App. Ct. 648 (2005), is misplaced. In Wade, we stated that there was no “timely nexus” between the defendant's sale of cocaine to an informant, and the search of his car some five days later, because police had no reason to believe he used his car to store drugs or that he “carried an inventory of drugs ready for delivery.” Id. at 651-652. Here, police searched the car almost immediately after observing the sale to Schofield.

7.   Jimenez-Martinez contends that, because his defense at trial was that he did not know about the drugs in the center console (and not that the drugs were for personal use), the Commonwealth should not have been permitted to introduce evidence of his sale to Schofield. However, the Commonwealth was permitted to introduce evidence on all of the elements it was required to prove. “Our jurisprudence has no requirement that the Commonwealth show ‘need’ for evidence of prior bad act evidence. The only requirements are relevance and a showing that the probative value of the evidence outweighs its prejudicial impact.” Commonwealth v. Copney, 468 Mass. 405, 413 (2014).