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Appeals Court of Massachusetts.



Decided: September 16, 2021

By the Court (Massing, Sacks & Singh, JJ.2)


Following a jury trial in the District Court, the defendant was convicted of possession of a Class A substance with intent to distribute. On appeal, the defendant challenges the denials of his motion to suppress, his motion for a required finding of not guilty, and his motion for a new trial. He also claims that various trial errors gave rise to a substantial risk of a miscarriage of justice. We affirm.

1. Motion to suppress. The defendant sought to suppress evidence that State police troopers discovered while conducting a warrantless search of a vehicle he was operating. After an evidentiary hearing, the judge denied the motion, determining that the search was supported by probable cause.

“In reviewing a ruling on a motion to suppress, ‘we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts found.’ ” Commonwealth v. Larose, 483 Mass. 323, 326 (2019), quoting Commonwealth v. Buckley, 478 Mass. 861, 864 (2018). “Probable cause is a ‘fact-intensive inquiry, and must be resolved based on the particular facts of each case.’ ” Commonwealth v. Long, 482 Mass. 804, 809 (2019), quoting Commonwealth v. Holley, 478 Mass. 508, 522 (2017).

Here, the motion judge found that a passenger, after making multiple hand-to-hand drug transactions for over forty minutes with people both on foot and in cars, got into the defendant's vehicle.3 The troopers’ interaction with driver number one was sufficient to “dispel[ ] any doubt” that the passenger had committed a felony and justified the stop of the vehicle to effect the passenger's arrest. See Commonwealth v. Washington, 449 Mass. 476, 481 (2007) (police observations of defendants with suspected drug dealer at bar during undercover surveillance combined with direct evidence of participation in past drug deal with suspect gave rise to probable cause to stop defendants’ vehicle and arrest them). In the process of placing the passenger under arrest, the troopers saw plastic baggies scattered around the interior of the vehicle, including some in the driver's side door pocket. The baggies appeared to be similar to those used to package both the drugs that were seized after one of the hand-to-hand transactions and the drugs that were discovered on the passenger himself. This observation, coupled with evidence of the passenger's drug-selling activities, provided a nexus that established probable cause to believe that narcotics would be found in the vehicle. See Commonwealth v. Ortiz, 487 Mass. 602, 607 (2021) (collecting cases where “sufficient nexus exists between the activities at issue and the location police expect to find contraband”). Finally, as the troopers “were not required to [conduct the search] with [occupants] inside the vehicle,” it was proper to issue an exit order to the defendant. Commonwealth v. Young, 78 Mass. App. Ct. 548, 552 (2011) (police may order occupants out of vehicle in order to conduct lawful search). Because probable cause justified the initial stop of the defendant's vehicle and each step of the subsequent police conduct, the motion to suppress was properly denied.4

2. Sufficiency of the evidence. The defendant next contends that the trial judge erred in denying his motion for a required finding of not guilty because the evidence was insufficient to prove constructive possession.

We review to determine whether the evidence, viewed in the light most favorable to the Commonwealth, would permit a jury to find “the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Tejada, 484 Mass. 1, 4 (2020), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Constructive possession requires “proof of ‘knowledge coupled with the ability and intention to exercise dominion and control’ ” (citation omitted). Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019). Although the presence of contraband in the same vehicle as the defendant is insufficient by itself to prove possession, “[p]resence in the same vehicle supplemented by other incriminating evidence ․ may suffice to show knowledge or intent to control” (citation omitted). Commonwealth v. Sinforoso, 434 Mass. 320, 327 (2001).

A search of the vehicle that the defendant was driving uncovered twenty-six bags of narcotics and several empty plastic baggies in the driver's side door pocket. The narcotics were enclosed in a plastic container in the vehicle's center console. This evidence, proving the defendant's proximity and access to the narcotics, was supplemented by evidence of collateral conduct that “permitted the inference of an intention to exercise control over [the] contraband.” Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 (2013). The defendant picked up a man after that man had made between six and twelve hand-to-hand drug transactions.5 Moreover, evidence that the now-passenger had a plastic bag containing ten “smaller knotted plastic bags” hanging out of his pocket, and that he was in the defendant's vehicle for only “a couple of minutes” before they were stopped by the troopers supports the inference that the defendant was working in concert with the passenger, picking him up in order to resupply him with the narcotics discovered in the center console.6 See Commonwealth v. Vega, 54 Mass. App. Ct. 249, 253 (2002) (“An inference is not improper just because it builds on an inference, if the primary inference is reasonable”).

3. Motion for a new trial. The defendant filed a motion for a new trial alleging ineffective assistance of counsel at both the motion to suppress and trial stages of the proceeding. “To prevail on a motion for a new trial claiming ineffective assistance of counsel, a defendant must show that ․ ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer,’ and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defense.’ ” Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The trial judge declined to address the defendant's argument that trial counsel was ineffective at the suppression hearing, instead directing the defendant to raise “any remaining issues” with the motion judge or the Appeals Court and denied the defendant's motion.

At the outset, we note that it was error for the judge to pass on the legal arguments relative to the motion to suppress. See Commonwealth v. Richards, 485 Mass. 896, 911 (2020) (motion for new trial based on claim of ineffective assistance at pretrial motion stage is heard by trial judge, not motion judge); Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). However, because we are satisfied that trial counsel's alleged deficiencies did not prejudice the defendant (and treating the judge's order as effectively and comprehensively denying the defendant's motion for a new trial), remand is unnecessary. Cf. Commonwealth v. Tirrell, 382 Mass. 502, 510 n.10 (1981) (contravention of rule does not require remand where record supports judge's conclusion).

a. Ineffective assistance at suppression hearing. The defendant claims that trial counsel's failure to demonstrate how the defendant's presence in the vehicle would have obscured the trooper's view of the plastic bags in the driver side door pocket was fatal to his motion to suppress. But, prior to the view of the vehicle, the trooper testified that he saw “plastic bags essentially all over the place in the car.” In light of that testimony, any uncertainty as to the precise moment when the troopers were able to see the driver's side door pocket was not dispositive to the success of the defendant's motion. See Commonwealth v. Brady, 380 Mass. 44, 56 (1980) (“Effective assistance is not measured by trial counsel's willingness to indulge every available procedure no matter how futile”). Similarly, where the troopers had probable cause to arrest the passenger in the defendant's vehicle, it would have been futile for the defendant to raise a pretextual challenge to the stop. Contrast Commonwealth v. Lek, 99 Mass. App. Ct. 199, 203, 206 (2021) (requiring suppression of contraband discovered in pretextual inventory search).

Nor does the defendant's contention, that trial counsel failed to adequately challenge the trooper's credibility, hold merit. “Generally, fail[ure] to impeach a witness in a particular way does not constitute ineffective assistance[,]” Commonwealth v. Watt, 484 Mass. 742, 763 (2020), and any inconsistencies in the trooper's testimony that emerged during cross-examination were reconciled by the motion judge in her findings of fact. In any event, trial counsel questioned the trooper extensively and highlighted gaps in the trooper's memory.

b. Ineffective assistance at trial. We agree with the trial judge that “[t]he failure to raise ․ discrepanc[y in the trooper's trial testimony] ․ was not so prejudicial that it would likely have overcome the other powerful evidence.”7 See Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993) (failure to “probe every inconsistency which occurs to appellate counsel” is not ineffective assistance). Trial counsel was successful in eliciting testimony on cross-examination that highlighted the trooper's inability to remember the incident with precision, that the defendant did not own the vehicle, and that the defendant was not carrying narcotics on his person. That the cross-examination was not successful in impeaching the countervailing evidence of the defendant's guilt does not change the analysis. “[T]he basic trouble from the defense standpoint was weakness in the facts rather than any inadequacy of counsel (citation omitted).” Commonwealth v. Lepper, 60 Mass. App. Ct. 36, 50 (2003).

4. Conclusion. The judgment and the order denying the motion for a new trial are affirmed.

So ordered.



3.   The motion judge further found that an individual stopped by the police shortly after one of these transactions (driver number one) admitted to purchasing $40 of fentanyl from her dealer (i.e., the passenger).

4.   Because the ruling can be affirmed on this ground, we need not address the Commonwealth's argument on appeal that the search was additionally justified as a search incident to the passenger's arrest.

5.   Although the defendant did not own the vehicle he was operating, he was related to the owner, and he gave the police the same address listed on the registration. See Crapps, 84 Mass. App. Ct. at 444.

6.   The defendant briefly argues that the judge erred in instructing the jury on the definition of possession by indicating that knowledge and intent were alternative elements. It appears that the judge attempted to discuss the concepts of intent and knowledge in the abstract. As the defendant acknowledges, the judge later gave a correct instruction of possession, which included both elements. We are satisfied that the jury was adequately instructed.

7.   We discern no improprieties in the trooper's trial testimony, and thus no substantial risk of a miscarriage of justice. The trooper was plainly qualified, through his training and experience, to testify on the characteristics of street-level drug distribution. See Commonwealth v. Little, 453 Mass. 766, 769 (2009) (“Narcotics investigators may testify as experts to describe how drug transactions occur on the street”).

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