COMMONWEALTH v. Russhane CAMPBELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant, Russhane Campbell, of one count of possession with intent to distribute a class B substance (“crack” cocaine) in violation of G. L. c. 94C, § 32A (a), and two counts of possession of class B substances (Adderall and Suboxone) in violation of G. L. c. 94C, § 34. On appeal, the defendant argues that the motion judge erroneously denied his motion to suppress the crack cocaine found in his car and asserts numerous errors in the conduct of the trial. Because we conclude that the motion to suppress should have been allowed, we vacate the judgment with respect to the charge of possession with intent to distribute crack cocaine. We affirm the remaining judgments.
Discussion. 1. Motion to suppress. The police obtained a warrant to search the single-family house where the defendant lived.2 At the time of the search, three cars were parked in the gravel parking area in front of the detached three-car garage located ten feet away from the house. The search warrant made no reference to any vehicle. While executing the warrant, the police located the keys to the defendant's Ford Focus, the car parked furthest from the house, about twenty feet away. The officers searched the car and found thirty-two small bags containing a total of approximately fifteen grams of crack cocaine.
Prior to trial, the defendant filed a motion to suppress the evidence obtained from the search of his car, arguing that because it was parked outside of the home's curtilage, the search warrant for the residence did not authorize the search of the car. The motion was denied. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [the judge's] ultimate findings and conclusions of law.’ ” Commonwealth v. Fernandez, 458 Mass. 137, 142 (2010), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We conclude that the motion to suppress should have been allowed.
A search warrant for a home authorizes searches of vehicles owned or controlled by the residents if the vehicles are located within the home's curtilage when the warrant is executed. See Commonwealth v. McCarthy, 428 Mass. 871, 873-874 (1999). Cars outside the curtilage are beyond the scope of such warrants. See id. at 876. The central consideration in the curtilage inquiry is “whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of ․ protection [under the Fourth Amendment to the United States Constitution].” Fernandez, 458 Mass. at 143, quoting United States v. Dunn, 480 U.S. 294, 301 (1987).3 While “there is no ‘finely tuned formula’ that demarcates the curtilage in a given case,” four factors guide our independent review: “(1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people passing by.” Fernandez, supra at 142-143, quoting McCarthy, 428 Mass. at 874. See Commonwealth v. Leslie, 477 Mass. 48, 54 (2017). Applying the four factors to the facts in this case, we conclude that the Focus was parked outside the curtilage of the defendant's home when the police executed the search warrant.
a. Proximity. In absolute terms, the defendant's car was parked close to the home (twenty feet). But see Commonwealth v. Butterfield, 44 Mass. App. Ct. 926, 928-929 (1998) (defendant standing on private walkway ten to fifteen feet from back door of his house not within curtilage). In relative terms, however, it was parked closer to the street and to the neighboring house than to his own house, and two other cars were parked between the defendant's car and his house. Contrast Fernandez, 458 Mass. at 145 (“The driveway was highly proximate to the defendant's apartment, both in absolute terms [it bordered it] and in relative terms [the driveway was closer to the defendant's first-floor apartment than to the other apartments]”).
b. Enclosure. The parking area was not enclosed. See Fernandez, 458 Mass. at 145 (“whether an area is enclosed is a question whether it is marked in such a fashion that connects it to or encompasses it within the curtilage of the home in question”). Compare Commonwealth v. Simmons, 392 Mass. 45, 47-49, cert. denied, 469 U.S. 861 (1984) (car on front driveway enclosed on only one side by garage not within curtilage) with Fernandez, supra at 145 n.12 (alley driveway “walled in on two sides” by defendant's building and neighboring building within curtilage).4
c. Nature of use. The motion judge found that “No Parking private property” signs were posted on the three garage doors, and “[t]here was also no evidence presented which would indicate that the garage parking spaces and area are used by anyone other than the residences [sic] at” the defendant's house. Exclusive use weighs in favor of a determination that the area was within the home's curtilage. See Fernandez, 458 Mass. at 146. However, unlike in Fernandez, where nonresidents had no reason to pass through the alley driveway to enter the defendant's apartment building, see id. at 145, here any driver traveling on the defendant's street or pedestrian approaching his house would necessarily pass within feet of, or into, the parking area. See McCarthy, 428 Mass. at 875, quoting Simmons, 392 Mass. at 48-49 (“an area is not within the curtilage if it is open to public view, and is one which ‘visitors and tenants on the property would pass on the way to the front door’ ”).
d. Steps taken to protect from observation. The residents of the house took no steps to conceal the parking area from observation. “The driveway is visible, in its entirety, from the street.” Commonwealth v. Greineder, 458 Mass. 207, 254 (2010), vacated on other grounds, 567 U.S. 948 (2012), S.C., 464 Mass. 580 (2013). Although “no parking” signs were placed to deter nonresidents from parking in front of the garage, “[t]here were no trees, fences, gates, or ‘no trespassing’ signs between the street and the driveway.” Id. Thus, the police detective conducting surveillance from across the street had an unobstructed view of the co-defendant as he entered the car, peeked over his shoulder, and reached under the driver's seat. A passerby could also easily peer into or under the cars parked there without trespassing onto the property.
Application of the Dunn factors compels the conclusion that the residents of the defendant's home would not conduct activities “intimately related to the privacy associated with the home,” McCarthy, 428 Mass. at 874, citing Oliver v. United States, 466 U.S. 170, 180 (1984), at the far end of the open parking area between the garage and the street where the car was parked. As the defendant's car was not located within the curtilage, the search of the car exceeded the scope of the warrant.5 The motion to suppress should have been allowed. Without the crack cocaine seized from the car, the Commonwealth would not have been able to sustain the conviction for possession with intent to distribute. That conviction must be vacated.6
2. Defendant's claims of trial error. We address the other issues raised in the defendant's brief to the extent that they may have affected the verdict on the possession charges.
a. Testimony about cash from controlled drug buy involving the co-defendant. The defendant did not object when Barnstable Police Detective Thomas Chevalier testified that the cash recovered from a sneaker in a shoebox in the closet of the bedroom shared by the defendant and the co-defendant matched cash exchanged in controlled buys with the co-defendant prior to the execution of the warrant.7 The reason counsel did not object is obvious from the record: the defense strategy was to establish that the co-defendant, not the defendant, was the drug dealer. Where, as here, it can readily be inferred from the record that the failure to object was a reasonable tactical decision, and the admission of the evidence helped rather than hurt the defendant, any error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999); Commonwealth v. Vital, 83 Mass. App. Ct. 669, 673 (2013).
b. Limits on cross-examination about the controlled buy. More in line with his trial strategy, the defendant also argues that the trial judge impermissibly limited his cross-examination of Chevalier regarding the controlled buys involving the co-defendant. The Commonwealth concedes error. Assuming without deciding that the judge abused his discretion by limiting cross-examination (presumably because the Commonwealth opened the door to this line of questioning), we agree with the Commonwealth that any error was harmless beyond a reasonable doubt. See Commonwealth v. Miles, 420 Mass. 67, 73 (1995). The jury heard abundant evidence tying the co-defendant to the controlled buys. On direct examination, Chevalier twice referred to the co-defendant as the “target” of the search warrant as a result of sales he made to the police's informant. He did the same at the start of his cross-examination. Chevalier also testified that the shoebox “contained the money [the police] used to purchase drugs from [the co-defendant],” and, on cross-examination, confirmed that none of the money recovered from the defendant's wallet matched any of the money from the controlled buys. The defendant emphasized all this evidence in his opening statement and closing argument. Further cross-examination on the topic would not have elicited much, if any, evidence not already squarely before the jury.
c. Expert opinion evidence. At trial, the prosecutor posed a hypothetical to State Police Sergeant Scott McCabe using the facts in evidence. McCabe offered an expert opinion that Adderall pills, cash, digital scales, several cell phones, and thirty baggies containing small quantities of crack cocaine recovered from a hypothetical person were “more consistent with” the distribution of narcotics than with personal use. Where, as here, the witness did not directly express his views on the defendant's guilt, “a properly qualified expert witness is permitted to opine based on a hypothetical that is grounded in facts in evidence” even if the testimony “touch[es] on an ultimate issue in the case.” Commonwealth v. MacDonald, 459 Mass. 148, 162-163 (2011).
d. Closing argument. The prosecutor stated in closing argument that cash recovered from “Mr. Campbell” was traced back to controlled buys. The evidence established that no controlled buy money was recovered directly from the defendant. Although defendant did not object, he now argues that the prosecutor misstated a critical fact and thereby created a substantial risk of miscarriage of justice.
Even if the prosecutor's statement crossed the line from an ambiguous statement (“Mr. Campbell” could have referred to either the defendant or the co-defendant) to an improper misstatement of critical fact, it did not create a substantial risk of miscarriage of justice. As discussed with respect to the limitations on cross-examination, supra, the jury were well aware that two Mr. Campbells were implicated and that only the co-defendant was directly associated with the controlled buy money. We are confident that any error did not materially affect the verdict. See Alphas, 430 Mass. at 13.
e. Jury instruction. Finally, the defendant argues that the trial judge's initial failure to use the jury instruction on reasonable doubt from Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015), is structural error requiring reversal. We disagree. The defendant did not object to the initial reasonable doubt instruction;8 rather, the prosecutor called the error to the judge's attention. Prior to sending the jury out for deliberations, the judge explained that he had read an “outdated instruction[ ]” and reinstructed on reasonable doubt by reading the Russell instruction verbatim. The judge's handling of the issue obviated any possible misunderstanding by the jury.
Conclusion. The order denying the defendant's motion to suppress is reversed. On the charge of possession of crack cocaine with intent to distribute, the judgment is vacated, and the verdict is set aside. The remaining judgments are affirmed.
reversed in part; vacated in part and set aside; affirmed in part
2. The target of the search warrant was co-defendant Nicholas Campbell.
3. In general, the curtilage concept defines the area that the police cannot search without a warrant. “In the present context, however, curtilage serves a different function -- it helps to define where the police can search pursuant to a warrant.” McCarthy, 428 Mass. at 874.
4. The motion judge noted that the town property map showed “the house (#14) and the garage (#20) boxed off and separated from the neighboring structures.” Although the structures were “boxed off” on the map, they were not physically boxed off; nothing on the ground corresponded to the boxes on the map. If anything, the fact that the house and the garage were enclosed in separate boxes on the map and had different street addresses favors the conclusion that the garage was not within the curtilage of the house.
5. The Commonwealth does not contend that the search was justified under the automobile exception to the warrant requirement.
6. We do not direct the entry of a judgment of acquittal, however, because the evidence presented at trial was sufficient to support the conviction. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence provided a sufficient basis for the jury to find beyond a reasonable doubt that the defendant constructively possessed the crack cocaine in his car with the intent to distribute. The defendant admitted that he owned the car. The police also found the title and keys, the defendant's wallet, and paperwork with the defendant's name in the bedroom where they found the defendant when they executed the warrant. Other evidence recovered during the search indicated that the co-defendant occupied and used the same bedroom. The co-defendant's passport was found in a backpack in the closet, and a paystub in the co-defendant's name was found on the dresser. The bedroom contained two digital scales and torn plastic bags like the ones in which the crack cocaine from the defendant's car was packaged. Finally, the police found $1,534 in cash on the defendant's person, $671 in the co-defendant's backpack, and $2,500 in a sneaker in the closet. The jury could reasonably infer the defendant's constructive possession from his relationship to the car, the co-defendant, and the bedroom, and intent to distribute from the digital scales, the packaging materials, and the large amount of cash. See Commonwealth v. Pratt, 407 Mass. 647, 651-653 (1990).
7. On cross-examination of Chevalier, defense counsel established that cash from the controlled buys was also found in the co-defendant's backpack.
8. “[E]ven structural error ‘is subject to the doctrine of waiver,’ ” if counsel fails to raise a timely objection. Commonwealth v. Morganti, 467 Mass. 96, 101-102 (2014), quoting Commonwealth v. Cohen, 456 Mass. 94, 105-106 (2010). Such unpreserved claims are reviewed for substantial risk of a miscarriage of justice. See Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). We have little, let alone “serious,” doubt that the result would have been different had the trial judge read the correct reasonable doubt instruction from the start.
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