40 Mass. App. Ct. 411 | Mass. App. Ct. | 1996
In summary: Following the stop of a car on the highway, the car was impounded, and inventory searches disclosed some 14.6 grams of cocaine in a jacket hung over the driver’s seat and a larger quantity in a suitcase in the trunk. The defendant, one of the passengers, was indicted for
In detail: At 9:30 p.m., October 19, 1993, State trooper Timothy G. Babbin, on routine patrol with a partner in a marked cruiser, was traveling eastward on Interstate 84 in Sturbridge near the Connecticut border, a wooded area. He observed ahead of him a Nissan automobile (two door; 1987 model) with a New York license plate. As the car showed no rear lights — a violation of law, cf. Commonwealth v. Valentine, 18 Mass. App. Ct. 965, 966 (1984) — Babbin decided to stop it and check. The car pulled over in response to the cruiser’s activation of blue lights. Approaching, Babbin asked the driver, Hector Cruz,
Returning to the car, Babbin asked the passengers to step outside and said he intended to have the car towed. Babbin had already observed that the car’s trunk lock was missing, leaving a hole, and the latches on the car’s rear windows were broken, so the windows could not be secured. The two doors, including windows proper, were undamaged. A key was in the ignition.
With the car impounded, awaiting the tow, and a third officer arrived on the scene, Babbin commenced an inventory search according to the written procedure of the State police (cited below). In the right hand pocket of a jacket draped over the driver’s seat, Babbin felt a heavy weight. This turned out to consist of a bottle of perfume and a sock wrapped around a glossine bag which contained white rock and powder later testing as 14.6 grams of 80% pure cocaine. Cruz acknowledged that he owned the jacket, but he and the others denied owning the cocaine. Babbin placed Sanchez and Mateo under arrest.
The inventory search continued after the towed car reached a police barracks in Sturbridge; Babbin searched the trunk, his partner, trooper Donna Lasarda, the interior. Opening the trunk, Babbin found a large suitcase and two small travel bags. The suitcase held articles of clothing (see below) and a bag with 242.8 grams of white rock and powder 46% pure cocaine.
The glove compartment yielded a bill, addressed to Sanchez
The foregoing was the substance of the evidence presented on the motion to suppress, which was denied (and denied also when formally repeated at trial). It was likewise the nub although not the precise substance of the evidence presented at trial, whose sufficiency to support a conviction for trafficking was attacked by motion for a required finding of not guilty, which also was denied.
1. If the impoundment was illegal, then so were the consequent searches, and the prosecution would fail. See Commonwealth v. Garcia, 409 Mass. 675, 678 (1991); Commonwealth v. Dunn, 34 Mass. App. Ct. 702, 703 (1993). The Commonwealth suggests that the condition of the car — missing rear lights, lockless trunk, broken latches — provided a basis for an inference that the car was stolen. So, too, the Commonwealth relies on the fact that the three who were questioned did not provide the name or a clue to the name of the owner of the car now hapless on the highway. The natural and understandable expedient, says the Commonwealth, was to impound the car.
The defendant points out that the car had not been reported stolen, and the faults in the car did not translate into significant proof of a theft,
2. Upon the evidence received at trial, the Commonwealth pressed its first theory of guilt, namely, that the defendant had constructive possession of the 242.8 grams of cocaine. Constructive possession implies “knowledge coupled with the ability and intention to exercise dominion and control” over the contraband. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting ultimately from Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 567 (1980). The jury could properly find that the defendant Sanchez had such possession.
The defendant was present and traveling in a vehicle carrying the cocaine. While that alone would not suffice to establish the required possession, “[pjresence in the same vehicle supplemented by other incriminatory evidence . . . may suf
The defendant exercised a large measure of control over the car itself. Thus we have the “For Sale” sign displaying the defendant’s beeper number which sounded the beeper on the defendant’s person; to which we need add the beeper bill addressed to the defendant located in the glove compartment, and the defendant’s personal papers in the trunk. The defendant’s control over the car supports an inference that he was acquainted with its contents. See Commonwealth v. Araujo, 38 Mass. App. Ct. 960, 962 (1995), analyzing Commonwealth v. Almeida, 381 Mass. 420, 422 (1980), and Commonwealth v. Brown, 401 Mass. 745, 748 (1988), and emphasizing the importance of ownership of the vehicle as a basis for inferring knowledge of what the vehicle is carrying. See to the same effect Commonwealth v. Boone, 356 Mass. 85, 87-88 (1969). In the present case we cannot impute ownership of the car to the defendant, but his evident control will do as well.
The clothing in the suitcase brings the defendant closer to the stash itself. Much of the clothing was small man’s, including pants with waist sizes of twenty-nine and thirty-one inches and shoes sized seven and seven and one-half. The juiy could observe the defendant’s small build. See Commonwealth v. James, 30 Mass. App. Ct. 490, 495 (1991).
The defendant’s birth certificate and another personal paper were found in the trunk near the suitcase with the cocaine. This invites analogy to Commonwealth v. Pratt, 407 Mass. 647, 650, 652 (1990), where the court said: “When contraband
The defendant carried on his person a message beeper, “an item associated with the sale of controlled substances.” Commonwealth v. Clermy, 421 Mass. 325, 330 (1995). Legitimate uses of a beeper are of course common, but an “item . . . not primarily designed for drug use may take on characteristics of drug paraphernalia by virtue of particular circumstances.” Commonwealth v. Cermenatty, 37 Mass. App. Ct. 908, 910 (1994), citing Posters ‘N’ Things, Ltd. v. United States, 114 S. Ct. 1747, 1752 n.ll, 1754 (1994). Here the beeper was related to the sale of the car, but that need not have exhausted its meaning. With the stash found, the proposition gains weight that this beeper was associated with the distribution of the drug.
The defendant cites Commonwealth v. Manzanillo, 37 Mass. App. Ct. 24 (1994). There a driver-owner of a passenger van was held not to have had knowledge (and hence did not have constructive possession) of drugs contained in a closed hip pouch located behind the driver’s seat. The situation in Manzanillo was quite different from the present. Apart from Manzanillo’s presence and ownership of the van, there were no further incriminating factors tying him to the drugs. (A statement by him that might have provided an added link was ruled out.) The fact that the van was hired for passenger transportation reduced the likelihood that the driver would know the contents of baggage that was being carried.
3. In asking and obtaining an instruction regarding possible joint venture responsibility of the defendant, the prosecution was postulating that if proof of constructive possession by the defendant failed, he might still be held on the accessorial basis.
This could come about, first, by casting Cruz as the principal in trafficking in the cocaine in the suitcase, with the defendant aiding, or holding himself available to aid Cruz in the enterprise, while sharing with Cruz the frame of mind intrinsic to the crime. See Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973); Commonwealth v. Soares, 377 Mass. 461, 470, cert, denied, 444 U.S. 881 (1979). There was a dearth of evidence in the present case that could fairly represent Cruz and the defendant in the respective roles of principal and aider or accessory. Cruz was the driver present in the car, seemingly possessing personally a separate amount of cocaine of separate caliber,
Second, joint venture is applied to a criminal operation in which the participants act together with a similar mental set toward a common end and where it may be unfeasible, and in
4. On our analysis, there was not enough evidence to submit to the jury on the theory of joint venture. As the jiiry may have taken this erroneous route to their guilty verdict, the judgment must be reversed, with new trial available. As illustrative: “In the instant case, the jury verdict did not specify whether the conviction of manslaughter was premised on a theory of individual liability or on joint venture. Because a verdict of guilty of manslaughter was legally unsupportable on a theory of individual liability and we cannot tell whether the jury adopted this theory, we reverse the conviction and set aside the verdict.” Commonwealth v. Flynn, 420 Mass. 810, 818 (1995). See Commonwealth v. Fickett, 403 Mass. 194, 197 (1988); Commonwealth v. Eldridge, 28 Mass. App. Ct. 936, 938 (1990); Commonwealth v. Kickery, 31 Mass. App. Ct. 720, 724 (1991). The point was preserved by the defendant’s motion for a required finding of not guilty. See Commonwealth v. Fickett, 403 Mass. at 197.
Judgment reversed.
Verdict set aside.
rrhe defendant was indicted for trafficking in more than 200 grams of cocaine, G. L. c. 94C, § 32E(b)(4). He was also indicted for possession of cocaine with intent to distribute but that charge was finally dismissed as duplicative. See also note 10, infra.
Cruz was indicted as a codefendant but was tried separately.
Babbin on November 1, 1993, mailed a certified letter to this name and address. There was no response.
Babbin said Mendez would be complained of. She was pregnant.
There was expert testimony at trial that this quantity betokened “trafficking” rather than possession for personal use.
Compare: “That a car is a junk heap is not of itself a sufficient reason for a stop.” Commonwealth v. Kimball, 37 Mass. App. Ct. 604, 604 (1994).
The General Order deals with how impounded vehicles are to be inventoried; it is not intended to describe the situations in which vehicles should or should not be impounded. The point is made in Commonwealth v. Caceres, 413 Mass. 749, 750-751 (1992). Section 4.1.4 of the General Order, cited by the defendant, does not help him. The facts of this case do not invite discussion of the possibility of a duty of the police under article 14 of our Declaration of Rights to seek to avoid impoundment where feasible. Compare Commonwealth v. Caceres, 413 Mass. at 751; Commonwealth v. Alvarado, 420 Mass. 542, 552 (1995).
The prosecutor’s opening statement estimated the defendant’s weight as one-hundred twenty pounds.
The purity percentages were quite different, suggesting no sameness of physical source, and there was no proof of similarity of packaging, brand, or the like. See the discussion in Commonwealth v. James, 30 Mass. App. Ct. at 495-497 & n.8.
The judge in his instructions (and verdict slips) had offered the jury the choice of finding the defendant guilty of trafficking in fourteen or more grams as a lesser included offense, but the jury responded only to two hundred grams.