Commonwealth v. Thompson

84 Mass.App.Ct. 1110

993 N.E.2d 752

COMMONWEALTH

v.Stephen THOMPSON.

No. 12–P–100.

Appeals Court of Massachusetts.

September 16, 2013.

OPINION TEXT STARTS HEREBy the Court (BERRY, SIKORA & MILKEY, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion to suppress, and from his convictions of possession of cocaine with intent to distribute, and a school zone violation. Regarding the motion to suppress, the defendant argues that there was not probable cause to arrest him and that the strip search, which uncovered the narcotics, was unconstitutional. Regarding the convictions, the defendant makes five principal arguments: (1) that evidence lost by the Commonwealth was exculpatory and material; (2) that the drug analysis certificates were improperly admitted, even though the chemist testified at trial; (3) that the prosecutor made improper remarks in his opening and closing statements; (4) that the judge incorrectly allowed expert testimony from the percipient police witness; and (5) that the evidence was insufficient to support both possession with intent to distribute and the school zone violation. We affirm the conviction for possession of cocaine with intent to distribute. However, for the reasons discussed below, we reverse the school zone conviction.

1. Motion to suppress. The defendant argues that his motion to suppress should have been allowed, for two reasons.¹ First, he claims that there was no probable cause to arrest him. We disagree. Officer Smith, a four-year veteran of the vice squad, surveilled an area of Worcester known to officers for its high levels of drug transactions. See Commonwealth v. Kennedy, 426 Mass. 703, 704 (1998). He twice saw the defendant walk with an individual behind a Dunkin Donuts, but return to the front alone while counting money. A third individual, Maisonet—whom Officer Smith knew to be a drug addict, see Commonwealth v. Gomes, 453 Mass. 506, 511 (2009)—walked with the defendant to the front of a school. Maisonet handed something to the defendant, who in turn removed a plastic sandwich bag from underneath the rear of his pants and pulled out a smaller item, which he passed to Maisonet. Maisonet placed the object in his mouth; the defendant replaced the sandwich bag under the backside of his pants. Officer Smith stopped Maisonet and asked him to open his mouth. Under his tongue, Officer Smith saw a small bag of what he believed to be crack cocaine. Before Officer Smith extracted the bag, Maisonet swallowed the item and exclaimed, “It's gone. It was only a twenty piece.” ² Based on these facts, there was probable cause to believe that the defendant was engaged in the sale of drugs. Therefore, the defendant was lawfully arrested.

Next, the defendant argues that the strip search, which ultimately uncovered a sandwich bag with three smaller bags of crack cocaine, violated the Constitution and the Worcester police department's written strip-search policy. We disagree. A strip search must be “justified by probable cause to believe that the defendant had concealed [evidence] on his person ... that would not otherwise be discovered by the usual search incident to arrest.” Commonwealth v. Prophete, 443 Mass. 548, 554 (2005). Officer Smith's observations provided sufficient justification, under Prophete, for the strip search. He saw the defendant reach in the rear of his pants (under his clothes) remove a sandwich bag, and hand a smaller item to Maisonet. The defendant replaced the bag in the same area beneath his clothing. Because of these specific observations by Officer Smith, and because the ordinary search did not reveal the sandwich bag, there was probable cause to believe that evidence of the crime was concealed between the defendant's buttocks. The strip search was therefore justified and constitutional.

The strip search also complied with the department's written policy. ³ The defendant principally argues that Sergeant Supernor could not have properly supervised the search from outside the windowless patrol wagon. Contrary to this argument, nothing in the department's regulations requires the supervisor to personally observe the search. The motion judge correctly denied the defendant's motion to suppress.

2. The failure to preserve the sandwich bag. The defendant next argues that because the Commonwealth lost the sandwich bag, testimony about it should not have been admitted. When a defendant claims that the Commonwealth has lost potentially exculpatory evidence, the defendant bears “the initial burden of demonstrating the exculpatory nature of that evidence,” which must be established by “reasonable possibility, based on concrete evidence.” Commonwealth v. Williams, 455 Mass. 706, 718 (2010).⁴ The defendant has not met this burden.

The defendant contends that the outside of the bag may have contained traces of biological or fecal matter, which would have supported his argument that the bag was fully secreted within his anal cavity rather than merely placed between his buttocks (as the police witnesses testified).⁵ This argument fails for two reasons. First, whether the bag contained such matter is purely speculative, yet Williams requires a “reasonable possibility, based on concrete evidence,” that the evidence is exculpatory. See ibid., quoting from Commonwealth v. Neal, 392 Mass. 1, 12 (1984). And second, common sense dictates that merely placing the bag the between the buttocks would not necessarily eliminate the potential accumulation of biological matter on the bag. So the fact finder would still be required to credit the defendant's testimony or the police officer's regarding the location of the bag. Although the $110 found on the defendant was also lost, the defendant's argument fails because the denomination of the bills was purely speculative. Therefore, the defendant has not demonstrated that the lost evidence was potentially exculpatory.

3. Drug analysis certificate. Although the chemical analyst testified (and was cross-examined), the defendant claims a Melendez–Diaz violation because the judge ruled that the certificate would be admitted only after the analyst had completed her testimony. There is no merit to this argument. The defendant had a full and fair opportunity to cross-examine the analyst, and Melendez–Diaz requires no more. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009), quoting from Crawford v.. Washington, 541 U.S. 36, 54 (2004) ( “[T]he [certificates] were testimonial statements, and the analysts were ‘witnesses' for purposes of the Sixth Amendment.... [P]etitioner was entitled to ‘be confronted with’ the analysts at trial”). The analyst here was subject to cross-examination (and was indeed cross-examined), so there was no Melendez–Diaz violation.

4. Opening and closing remarks by the prosecutor. The defendant claims that a series of remarks by the prosecutor in his opening and closing statements tainted the trial. First, he argues that the prosecutor improperly aligned himself with the jurors by repeatedly using “we” and “us.” “Although it is preferable that counsel avoid arguing in a form that seeks to engage the jury with him or her personally, such argument is not improper. It is merely a means of involving the jury and suggesting that the prosecutor and the jury review the evidence together.” Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011). Even in Commonwealth v. Burts, 68 Mass.App.Ct. 684, 688–689 (2007), where we expressed serious concern over the prosecutor's continual use of “we,” we ultimately held that there was no substantial risk of a miscarriage of justice. We reach the same result here.

Second, the defendant contends that the prosecutor discussed facts that were not in evidence during the opening and the closing. In his opening, the prosecutor stated that Officer Smith would testify to an exchange of what “looked like money.” This evidence did not materialize, but based on the facts of the case, it was reasonable for the prosecutor to expect Officer Smith to discuss such an exchange. See Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 51 (2003). There was thus no error.

In his closing, the prosecutor claimed, incorrectly, that Officer Smith observed the defendant engage in “transactions” and “exchanges” with two individuals.⁶ Although the prosecutor should not have cast these meetings as “transactions” or “exchanges,” it was certainly a fair inference that these meetings were, in fact, drug transactions. Accordingly, we think that the defendant suffered no prejudice from these mischaracterizations, especially considering that the lynchpin of the case was the defendant's meeting with Maisonet, where Officer Smith did observe an exchange.

Third, the defendant contends that the prosecutor's impermissible vouching for the Commonwealth's witnesses requires us to reverse. The prosecutor did improperly inject his personal belief of witness credibility, but the defendant suffered no prejudice. In the middle of the closing statement, defense counsel objected to the vouching. After a brief sidebar, the judge asked the jury to disregard the vouching, explaining that they are the sole arbiters of witness credibility. This forceful and specific curative instruction—in the middle of the Commonwealth's closing statement, no less—removed any potential prejudice to the defendant. See Commonwealth v. Bolling, 462 Mass. 440, 455 (2012).

The improper remarks during opening and closing statements, taken individually or cumulatively, did not create reversible error or a substantial risk of a miscarriage of justice.

5. Expert opinions from percipient police witness. The defendant next claims that the judge improperly admitted expert opinions from a percipient police witness. This argument stems from Officer Smith's testimony that he “radioed to other members of the vice squad that I had seen what I believed to be a drug transaction, and I asked for assistance ... in stopping the individuals” (...