Commonwealth v. Lara

1

COMMONWEALTH v. EUGENIO S. LARA

No. 23-P-107

Appeals Court of Massachusetts

September 27, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0

Following a jury trial in the District Court, the defendant was convicted of distribution of heroin, possession of heroin with intent to distribute, and a related school zone violation, see G. L. c. 94C, §§ 32 (a.) 32J.^[1] The charges stemmed from the sale of a small amount of heroin in a high crime area of Lawrence. During the investigation the buyer identified the defendant as the seller. When the police stopped the defendant and searched him, they found more heroin in the defendant's pocket. On appeal, the defendant argues that his motion to suppress the drugs seized from his person was improperly denied and a substantial risk of a miscarriage of justice resulted from the admission of improper opinion testimony at trial. We affirm.

Motion to suppress.

Two witnesses, Captain Roy Vasque and Lieutenant Mark Ciccarelli of the Lawrence police department, testified at the evidentiary hearing on the motion to suppress. Both Vasque and Ciccarelli were members of the department's street narcotics enforcement unit (SNEU) charged with investigating street-level distribution of narcotics. The motion judge found both officers credible and adopted "their testimony in [its] entirety." We summarize the relevant facts from the motion judge's findings, supplemented by uncontroverted and undisputed facts from the record.^[2]'^[3] Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

In the early afternoon of March 27, 2014, Vasque, Ciccarelli, and other members of the SNEU were conducting undercover surveillance in an area of Lawrence known for "a high incidence of drug activity." The officers had made "hundreds and hundreds" of arrests for narcotics offenses in the area and knew that drug users from out of State often came to this section of the city to purchase drugs. More specifically, Vasque explained that "[o]n a day-to-day basis we deal with a number of . . . buyers that come into the city of Lawrence from out of town, New Hampshire primarily[,] looking to buy narcotics."

At one point, Ciccarelli noticed a pickup truck with a New Hampshire license plate and became suspicious. The operator remained in his truck, which was parked, for a "few minutes" and was looking down at his lap. Ciccarelli reported his observation about the truck to Vasque. Both Ciccarelli and Vasque testified that the officers were in communication with each other on a separate channel used only by members of the SNEU. The driver left the area and drove a few blocks before stopping to pick up an individual, later identified as the defendant, who had been walking down a nearby street. Before the defendant got into the truck, the officers observed that the driver had committed a turn signal violation and also noticed that one of the truck's brake lights was out. The operator drove for about thirty seconds to a minute and had traveled approximately three blocks before pulling over again, at which point the defendant got out and the driver immediately drove away. The defendant then began walking down the sidewalk. The officers did not recognize the driver or the defendant, nor did they observe the two make an exchange of any kind. However, based on their training and experience, which included making arrests for street-level drug transactions after observing similar scenarios unfold, they believed that a sale of drugs had taken place and formulated a plan to stop the truck and the defendant to further investigate. According to the plan, Vasque and another officer, Detective Carmen Purpora, followed the truck, while Ciccarelli pursued the defendant.

Vasque activated the lights and siren of his vehicle and stopped the truck within a few blocks from the point where the defendant had been dropped off. As Vasque approached, the driver stuck his arm out of the driver's side window and said, "This is it, this is all I have." The driver, hereinafter the driver or the buyer, then handed over a "twist type bag" containing a brown substance which the officers believed to be heroin. The driver was escorted to the back of the truck and, after waiving his Miranda rights, he stated that he had purchased a twenty-dollar bag of heroin from the Hispanic man who had gotten into and out of his truck prior to the motor vehicle stop. Vasque then relayed this information to Ciccarelli who was "[s]omewhere in the area where the defendant was let out of the vehicle."

Meanwhile, at the same time Vasque (and Purpora) were stopping the truck, Ciccarelli was trailing the defendant. He first waited for the truck to pull away and "kind of get out of sight." At that point, he estimated that the defendant had walked about a block. Ciccarelli initially followed the defendant in his unmarked car and, as he shortened the distance between them, he parked in a vacant lot and continued his pursuit on foot. Ciccarelli "wanted to close the gap" between himself and the defendant and picked up his pace. He had his badge out when he approached the defendant and said, "Lawrence police, stop." The defendant did so, and immediately put his hand in his pocket. Ciccarelli reached into the same pocket and removed "plastic twists of heroin."

On the basis of these facts, and a few minor additional facts which we have not included in our summary (see note 2, supra), the judge concluded that the officers had probable cause to stop and arrest the defendant based on their collective knowledge and denied the motion to suppress. The judge reasoned as follows:

"Although the Court finds that the officers did not have sufficient facts to support reasonable suspicion for an alleged drug transaction at the time they stopped the motor vehicle, the Court does find that the officers had a lawful basis to stop the pickup truck for the motor vehicle infractions described above. The heroin that was spontaneously surrendered by the operator to the officers as they approached his motor vehicle was properly seized.

The operator's post-Miranda statement to the officers concerning his heroin purchase provided the officers with probable cause to believe that the [d]efendant unlawfully distributed cocaine. Consequently, based on the information known collectively by the officers at the time, Lt. [Ciccarelli's] stop and arrest of the [d]efendant was proper. The heroin was properly seized as a result of a search incident to arrest."

"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 conclusion of law" (quotation and citation omitted). Commonwealth v. Gonzalez, 487 Mass. 661, 667-668 (2021).

We first address the defendant's claim that several of the motion judge's findings of fact were clearly erroneous. A fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Commonwealth v. Tremblay, 480 Mass. 645, 655 n.7 (2018), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). The defendant argues, and the Commonwealth agrees, that there was no evidence to support the following findings of fact: (1) the buyer had been in his car looking at his lap for ten minutes before he pulled away, (2) the buyer's truck was unregistered, and (3) the right side brake light of the buyer's truck was out and the buyer failed to properly signal a left turn. Our review of the record confirms there was no evidence regarding the specific amount of time the buyer was parked and looking at his lap or that the truck was unregistered, and Vasque testified only generally about the motor vehicle infractions.^[4] As it turns out, these facts were included in a police report authored by Purpora, which the defendant has provided to us in his record appendix. The report was not admitted in evidence and Purpora did not testify at the hearing. The defendant asserts that the judge impermissibly relied on the police report to supplement his findings and further argues that doing so violated his constitutional rights to the extent that we are required to reverse the order denying his motion to suppress.

To begin with, it is not clear from the record before us that the judge had access to the police report, and even if he did, it is less than clear that the judge acted secretly in relying on the report as the defendant claims. However, it is undisputed that the findings of fact described above were not supported by the testimony presented at the hearing and those facts are referenced within Purpora's police report. Given these circumstances, we conclude that these challenged findings of fact are clearly erroneous. The proper remedy, however, is not to reverse the order denying the motion to suppress. Rather, we excise those facts and do not consider them in conducting our independent review of the judge's...