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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Jiminenz, 22 Mass.App.Ct.
286 (1986)
Appeals Court of Massachusetts,
Decided
Richard P. Desjardins,
Antone B. Cruz, Jr.,
Dana A. Curhan, Asst.
Dist. Atty., for the Com.
Before [22
Mass.App.Ct. 286]
GRANT, KAPLAN and SMITH, JJ.
[22 Mass.App.Ct. 287]
SMITH, Justice.
The
defendants, Reynaldo Alcedo Jiminez
and Jorge Mayans, were indicted for (1) unlawfully carrying a firearm (a nine
millimeter "Mac 10" weapon), (2) unlawful possession of an altered
firearm (a sawed‑off shotgun), and (3) unlawful possession of cocaine,
with intent to distribute, said cocaine being in excess of 200 grams. Both
defendants were convicted on all three indictments following a jury trial. On appeal, they allege several errors which
they claim require reversal of their convictions.
1. Denial of suppression motions. Prior to trial, both defendants filed
motions to suppress certain evidence that had been seized by the police as a
result of a warrantless search of their
automobile. After a hearing, a Superior
Court judge denied their motions and filed a memorandum that contained his
findings of fact. Those findings of fact
are "binding in the absence of clear error ... and [we] view with
particular respect the conclusions of law which are based on them."
Commonwealth v. Correia, 381
[22 Mass.App.Ct.
288] On September 14, 1983, at 1:30
A.M., Trooper Richard Whitehead was on routine patrol and driving south in a
marked cruiser on Route 95 in North Attleborough. He turned off the highway at an exit and then
drove onto the ramp leading to Route 95 north.
At that point, he observed a late model Oldsmobile travelling
north on Route 95 within the speed limit.
He noticed that the automobile had its high beam headlights on. Another automobile was following it. Trooper Whitehead paced his cruiser so that
both automobiles passed him before he entered the highway from the ramp.
The
trooper observed that after the second automobile passed the Oldsmobile, the
driver of the latter automobile did not lower the high beams. Thereupon, he closed the distance between his
cruiser and the Oldsmobile to within two car lengths. From that distance, he observed that the
validation sticker affixed to the license plate had expired at the end of
August of 1983. At that point, he put on
the dome lights and high beams of his cruiser and signaled the Oldsmobile to
stop. He did not inform his headquarters
that he had stopped a vehicle.
Trooper
Whitehead got out of the cruiser and walked toward the Oldsmobile. He noticed that there were two males in the
automobile. The driver of the
Oldsmobile, subsequently identified as Jorge Mayans, stepped out of the
automobile. He put his hands in the air,
head high, palms forward, in a position commonly thought of as surrender. He started to walk toward Trooper
Whitehead. This unusual behavior aroused
the trooper's concern. He ordered Mayans
to get back in his automobile three times, but Mayans failed to do so. Mayans then stated that he did not have a
license and that he was driving because the passenger was ill.
The
trooper then escorted Mayans to the passenger door of the automobile. As he did so, he saw the passenger, who was
still in the automobile, and was later identified as Reynaldo Alcedo Jiminez, reach down very
quickly toward the bottom of the passenger seat. Trooper Whitehead ordered Jiminez
out of the automobile and asked him for some identification. Jiminez gave him a
Florida license in the name of Alcedo. The license appeared to be in order. The trooper asked Jiminez [22 Mass.App.Ct.
289] about the ownership of the
automobile. He replied that it was a
rental automobile and showed the rental agreement to Whitehead. The trooper noted that the agreement was in
the name of one Castillo, not Alcedo. He asked Jiminez
for some explanation and was informed that Castillo was a member of the family.
At this
point, the trooper asked Jiminez why he had ducked
down quickly while sitting in the passenger seat. Up to the time the trooper asked that
question, Jiminez had been very courteous and
polite. However, upon hearing this
question, his expression changed and he appeared
shaken, grim, and anxious. He looked at
Mayans and did not answer the question.
Officer Whitehead then became concerned about his own safety. He ordered the two men to walk forward to the
front of their automobile, where he had them stand in front of the
headlights. The trooper then positioned
himself behind the passenger door. He
swept his hand under the front passenger seat, where he discovered a loaded
nine millimeter Mac 10 semi‑automatic weapon. Trooper Whitehead asked the men if either had
a license for the gun. Jiminez responded, saying that he had a Florida license but
not with him. The trooper then told the
men that they were under arrest. He
ordered the two men to lie on the ground, which they did after the order was
repeated several times.
Trooper
Whitehead went back to his cruiser and radioed for assistance. Two police officers from North Attleborough arrived and, shortly thereafter, a State
police cruiser. After the two defendants
were placed in the cruiser, Trooper Whitehead continued the search of the
defendants' automobile. Over the visor
on the passenger side, he found a foil packet with a white powdery substance
inside, which was later determined to be cocaine. Trooper Whitehead then removed the keys from
the ignition and opened the trunk. He
found a loaded sawed‑off shotgun.
Next to the shotgun was a brown paper bag with two parcels inside. Both parcels, it was later determined,
contained cocaine.
a. The "pursuit" of the defendants'
automobile by the police. The
defendants claim that Trooper Whitehead "pursued" their automobile
without legal justification before he observed that [22 Mass.App.Ct. 290] the validation sticker on the license plate had expired and, therefore,
they contend that their rights under the Fourth Amendment to the United States
Constitution were violated.
[1][2]
Prior to the time that he signaled the driver of the defendants' automobile to
stop, Trooper Whitehead's actions could not be characterized as a
"pursuit." After he first saw
the automobile, the trooper simply positioned his cruiser a short distance
behind the defendants' automobile in order to observe its operation. At that point he did not attempt to stop it,
nor was he pursuing it "to effect a stop." Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009
(1981). The following of an automobile
by the police did not "clash[ ] with individual rights [of the
defendants]." Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 419, 433 N.E.2d 1234 (1982). In addition, we note that Trooper Whitehead
and the defendants were travelling on a public
highway at the time the cruiser was following the defendants' automobile. Surveillance of an automobile by a police
officer does not encroach upon the privacy interests of the occupants where, as
here, the officer makes his observations from a place where he is legally
entitled to be. See Commonwealth v. Oreto, 20 Mass.App.Ct. 581, 584‑586, 482 N.E.2d 329 (1985).
[3] b. Search of the automobile trunk. Neither defendant challenges the judge's
decision upholding the warrantless search of the
passenger compartment. Mayans argues,
however, that the extension of that search into the trunk was illegal because
it was not justified by probable cause or exigent circumstances.
Over sixty
years ago the Supreme Court established an automobile exception to the warrant
requirement when it held that a warrantless search of
an automobile by a police officer who has "reasonable or probable cause
for believing that the automobile which he stops ... has contraband ...
therein" does not violate the Fourth Amendment. Carroll v. United States,
267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925).
More recently, the Court upheld the warrantless
search of an automobile trunk. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross
the Court held that "[i]f probable cause
justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the
[22 Mass.App.Ct. 291] search" (emphasis supplied). United States v. Ross, supra
456 U.S. at 825, 102 S.Ct. at 2173. See
Commonwealth v. King, 389 Mass. 233, 247, 449 N.E.2d 1217 (1983). Here, Mayans concedes that the police had
probable cause to search the automobile for weapons. Once a firearm and contraband had been found
in the passenger compartment the police were justified in searching the trunk,
"the trunk clearly being a 'part of the vehicle' capable of concealing
'the object of the search,' [i.e. drugs or weapons]." (FN2)
United States v. Rickus, 737 F.2d 360, 367
(3d Cir.1984), quoting from Ross, 456
U.S. at 825, 102 S.Ct. at 2173. (FN3)
2. The questioning of Commonwealth witnesses
by the judge. As part of its case
against the defendants, the Commonwealth introduced firearm certificates (G.L. c. 140, § 121A) and drug analysis certificates (G.L. c. 147, § 4D).
To lay the foundation for introduction of these certificates the
Commonwealth called two police officers as witnesses. During the course of their respective
examinations the judge asked several questions of each officer. The defendants contend that in questioning
these witnesses, the judge abdicated his role as an impartial arbiter and
assumed the mantle of the prosecutor, thereby depriving them of a fair
trial. We rule, however, that there was
no error.
The first
police officer, in answer to the prosecutor's questions, testified that he
delivered the firearms found in the defendants' automobile to the ballistics
laboratory in Boston. When the
Commonwealth moved for admission in evidence of [22 Mass.App.Ct. 292] the related firearm certificates, however, the judge refused to
admit them, ruling that the Commonwealth was also required to establish when
the witness retrieved the weapons from the laboratory in Boston. (FN4)
The judge then proceeded to ask the witness a half dozen questions
regarding the date when the witness retrieved the weapons from the
laboratory. The answers were apparently
satisfactory, because the firearm certificates were subsequently allowed in
evidence.
[4] The
second police officer who was the subject of judicial questioning testified, in
response to questions from the prosecutor, that he had taken three packages
containing a white powdery substance to the laboratory in Boston for
analysis. When the Commonwealth moved to
admit in evidence the three corresponding certificates of analysis, the judge
sustained the defendants' objections to their admission on the ground that the
certificates had not been linked to the packages submitted for analysis. The prosecution then asked the witness for
the laboratory number assigned to the three packages. At that point, the judge took over the
questioning of the witness. He asked the
witness several questions about the laboratory number and eventually admitted
the drug analysis certificates. (FN5)
[5][6] A
trial judge is the " 'guiding spirit and the controlling mind at a trial.'
"
Commonwealth v. Dias, 373 Mass. 412, 416, 367 N.E.2d 623
(1977). As such, he "may properly
question a witness, even where to do so may strengthen the Commonwealth's case,
so long as the examination is not partisan in nature, biased, or a display of
belief in the defendant's guilt." Ibid.
Furthermore, [22 Mass.App.Ct. 293]
he may "ask questions to clarify a point, to prevent perjury, or to
develop trustworthy testimony." Commonwealth v. Fitzgerald, 380 Mass.
840, 847, 406 N.E.2d 389 (1980). A trial
judge, of course, should use his "power to ask questions with
restraint". Ibid.
[7] The
questioning of the witnesses in this case was not partisan, nor did it convey
to the jury the impression that the judge believed the defendants were
guilty. Neither police officer
questioned by the judge was a witness to the crime, and their testimony was
technical in nature. The judge's
questioning was obviously intended to clarify certain points relative to the
introduction of the certificates in evidence.
Moreover, the judge told the jury not to attach any significance to the
fact that he asked the questions.
(FN6) "We are not unmindful
of the observation of Francis Bacon on the 'overspeaking
judge' and we have not favored except in extenuating circumstances the takeover
of questioning by a judge during the course of trial." Commonwealth v. Campbell,
371 Mass. 40, 45, 353 N.E.2d 740 (1976).
However, in the circumstances presented here, there was no error.
3. Discharge of impanelled
juror. After the close of the
evidence and prior to the commencement of deliberations, one of the impanelled jurors requested to be excused from further
service. The judge held a hearing in
open court, outside the presence of the jury panel. The juror stated that she was presently employed
but had just learned of a job opportunity at another company. She called that company for a job interview
but was forced to accept an appointment which conflicted with the next
scheduled court day. In response to a
question from the judge, she stated that she could call the company and attempt [22 Mass.App.Ct.
294] to postpone the interview but
was unsure whether the job would be left open for her. She also stated that the job interview was
important to her. At the conclusion of
the hearing, the judge discharged the juror, over the objections of defense
counsel. (FN7) They claim that the judge abused his
discretion in dismissing the juror.
There do
not appear to be any cases that deal with the procedure involving the discharge
of an impanelled juror prior to the commencement of deliberations. (FN8)
However, cases that are concerned with the interpretation of a statute
that permits a discharge of a deliberating juror form a useful background for
our analysis. Commonwealth v. Haywood, 377 Mass. 755,
765‑770, 388 N.E.2d 648 (1979). Commonwealth v. Webster, 391 Mass.
271, 275‑276, 461 N.E.2d 1175 (1984). Commonwealth v. Connor, 392 Mass. 838,
842‑847, 467 N.E.2d 1340 (1984).
[8][9]
General Laws, c. 234, § 26B, as amended through St. 1979, c. 344, § 9A,
provides for substitution of an alternate juror if a deliberating juror
"dies, or becomes ill, or is unable to perform his duty for any other good
cause shown to the court." Those
occasions mentioned in the statute are precisely the same circumstances that
would permit the discharge of an impanelled juror prior to the commencement of
deliberations. State v. Trent, 157 N.J.Super.
231, 239, 384 A.2d 888 (App.Div.1978), rev'd on other
grounds, 79 N.J. 251, 398 A.2d 1271 (1979), cited in Commonwealth v. Connor, 392 Mass. 838, 845 n. 4, 467 N.E.2d 1340
(1984). The Commonwealth contends that
the juror was discharged for "good cause". It has been held that "good cause",
as it appears in § 26B, "includes only reasons personal to a juror, having
nothing whatsoever to do with the issues of the case or with the juror's
relationship with his fellow jurors." Commonwealth v. Connor, supra at 844‑845,
467 N.E. at 1340. Here, that standard
was met, as the juror was [22 Mass.App.Ct. 295]
discharged because of a personal situation, not connected to her relationship
with her fellow jurors or her views on the case. We recognize that not every personal
situation will justify the dismissal of an impanelled
juror prior to deliberations (see note 8,
supra ). However, in this case the
job interview was important to the juror.
A continuation of her jury service might well have resulted in a
hardship in light of a possible loss of a job opportunity. In the circumstances, the judge did not abuse
his discretion in discharging the juror prior to deliberations.
4. Other issues. The other issues raised by the defendants
are without merit and do not warrant extended discussion.
[10] a.
The judge's decision to admit in evidence the firearm discovered underneath the
passenger seat was not error. It was
authenticated by Trooper Whitehead, and there was adequate evidence of the
chain of custody. Any weaknesses in the
chain affected the weight rather than the admissibility of that evidence.
Commonwealth v. Berth, 385 Mass. 784, 791, 434 N.E.2d 192 (1982).
[11] b. Jiminez's motion for a required finding of not guilty on
the unlawful possession of a sawed‑off shotgun on the ground that no
evidence was introduced as to the length of the barrel was properly
denied. There was ample evidence in
regard to the barrel. The firearm,
itself, was placed in evidence. The jury
could readily observe that its barrel was several inches less than eighteen
inches. Two police officers described
the firearm as a "sawed‑off shotgun." See Commonweath v. Sperrazza, 372
Mass. 667, 670, 363 N.E.2d 673 (1977) (testimony that weapon in question was a
"revolver" or a "handgun" held sufficient to support the
conclusion that the barrel was less than sixteen inches, as revolvers or
handguns are ordinarily short firearms).
In sum, the evidence was sufficient to establish beyond a reasonable
doubt that the length of the barrel was less than eighteen inches.
[12] c.
The citation to the statute under which Mayans was charged with unlawful
possession of a sawed‑off shotgun was typed incorrectly. (FN9)
Mayans filed a motion for a required finding of [22 Mass.App.Ct. 296] not guilty based on the defect.
His motion was denied by the judge.
The body
of the indictment listed the date and location of the alleged crime. It correctly stated the nature of the crime
with which the defendant was charged.
The description satisfied art. 12 of the Declaration of Rights of the
Massachusetts Constitution and Mass.R.Crim.P. 4(a),
378 Mass. 849 (1979). Moreover, Mayans
does not even claim that he was prejudiced by the defect. His contention that the judge erred borders
on the frivolous.
d. Mayans'
contention that G.L. c. 94C, § 32E(b )(3), as appearing in St. 1982, c.
650, § 11, is unconstitutionally vague was rejected in Commonwealth v. Maracic, 18 Mass.App.Ct. 722, 469 N.E.2d 1304 (1984).
Judgments affirmed.
(FN1.) Two of the companion cases are against Jiminez and three are against Jorge Mayans.
(FN2.)
Mayans relies on Commonwealth v. Ford,
394 Mass. 421, 476 N.E.2d 560 (1985), for his argument that the search of the
trunk was unreasonable. In Ford, a police officer opened the trunk
of an impounded automobile for the purpose of securing certain personal
property. He saw a rifle in the trunk
and seized it. The court held that the warrantless search was unreasonable because the storage
search was not conducted pursuant to standard police procedures. In addition, the court noted that "there
was neither probable cause to search nor any special circumstances, such as an
emergency, to justify a warrantless search without
probable cause." Commonwealth v. Ford, 394 Mass. 421, 427
n. 4, 476 N.E.2d 560 (1985). In the
instant case, there was probable cause to search the automobile.
(FN3.) United States v. Rickus,
supra, also illustrates the wide variety of materials that some defendants
have been found to have carried in the trunks of their automobiles. In that case the police found a .22 caliber
semi‑automatic pistol and a mask of Leonid Brezhnev.
(FN4.)
The correctness of that ruling is not before us.
(FN5.)
It was not until well after the judge questioned the second witness that the
defendants objected to the judicial questioning and requested a mistrial. The objection and the request were not
timely. "While we understand the natural
reluctance of trial counsel to object to questions ... coming from a judge,
sometimes trial counsel's duty to protect his client's rights requires him to
object, preferably at the bench out of the jury's hearing."
Commonwealth v. Fitzgerald, 380 Mass. 840, 846, 406 N.E.2d 389
(1980). An examination of this record
does not show that counsel for either defendant was reluctant to object to any
action by the judge. Therefore, as there
was no justification for the defendants' failures to make timely objection, we
examine their contentions under the "substantial likelihood of a
miscarriage of justice" standard. Commonwealth v. Freeman, 352 Mass. 556,
563‑564, 227 N.E.2d 3 (1967).
(FN6.)
During the course of his remarks to the jury the judge told them not to
"draw any inferences from anything that I may ask in the questioning. I'm known as a judicial interferer, the
lawyers don't like it sometimes, but I stick my nose in and ask questions and
they may not like my asking questions...."
Counsel for the defendants have seized on the phrase "judicial
interferer" and argue that it supports their argument that the judge
improperly interfered with the trial.
As we have
noted in the body of the opinion, the judge's intervention in the case by
asking questions was not error. The fact
that the judge stated to the jury that he is known, apparently by some lawyers,
as a "judicial interferer" did not turn his intervention into an
example of judicial interference.
(FN7.) Because alternate jurors had been impanelled, the verdicts against the defendants were
returned by a twelve person jury.
(FN8.) The matter is now covered in G.L. c. 234A, § 39, as amended by St. 1984, c. 189, § 158,
which provides in part: "The court
shall have authority to excuse and discharge an impanelled
juror prior to jury deliberations after a hearing upon a finding of extreme
hardship." That statute did not
apply to jury trials in Bristol County at the time of the judge's action.
(FN9.) The indictment refers to G.L. c. 269, § 10C, rather than G.L.
c. 269, § 10(c ). The miscitation is
repeated on the front of the indictment.