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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. Lara, 39 Mass.App.Ct.
546 (1995)
Appeals Court of Massachusetts,
No. 94‑P‑670.
Argued
Decided
James E. McCall,
Jill P. Furman, Assistant District Attorney, for the
Commonwealth.
Before PERRETTA, KASS and
KASS, Justice.
Repeated
references in the testimony of the government's principal witness to
"Spanish We Deliver" and "Dominicans" gratuitously
highlighted the defendant Lara's ethnic background. They tainted the presentation to the jury of
the Commonwealth's charges against Lara of trafficking in twenty‑eight
grams or more of cocaine (G.L. c. 94C, § 32E[b ] ) and unlawful distribution of
cocaine (G.L. c. 94C, § 32A[c ] ). Lara is, therefore,
entitled to a new trial. We affirm,
however, the denial of a motion to suppress drugs [39 Mass.App.Ct. 547] found in a search, made after Lara's arrest, of the car he was
driving when apprehended.
1. The motion to suppress. We summarize the facts found by the motion
judge, with some supplementary details taken from the record. On
Some ten
minutes later, a white 1981 Honda automobile with two occupants pulled up
nearby and parked. Lara, who had been at
the wheel, walked to the woman's car and talked to her. She accompanied Lara to his car and climbed
into the back seat. Detective Martin
walked by and saw the woman give money to Lara and receive a plastic bag from
the passenger in Lara's car. The woman
then returned to her automobile and, as she started to drive off, was
intercepted and arrested by Detective Martin.
Told that she was to be searched, the woman pulled a plastic bag of
cocaine from the watch pocket of her jeans.
Before stopping the woman, Martin had sent a radio message to a pair of
collaborating detectives, asking them to stop and arrest Lara and his
passenger. One of the detectives,
Michael Primm, made an unproductive cursory search of
the Honda on the spot and then took the car to the police station. There, Primm
conducted a further search. Behind a
speaker cover he pried off the dashboard, he found a cache of forty
individually wrapped bags, each of which proved to contain cocaine.
[1] [39 Mass.App.Ct.
548] Detective Primm
conducted his later search of Lara's automobile without a search warrant, an
unlawful act, Lara contends, because by that time the car was safely in the
police station parking lot, and the police officers had leisure to obtain a
warrant. As Detective Primm was obliged to pry covers off the dashboard to find
the incriminating material, the search could not convincingly be characterized
as an inventory search, see Commonwealth
v. Figueroa, 412 Mass. 745, 748‑750, 592 N.E.2d 1309 (1992), and the
Commonwealth does not attempt so to do.
Rather, the government relies on the "automobile exception"
that permits a search of a car after its removal to a police station if
probable cause for a search and accompanying exigent circumstances would have
justified a search without a warrant when the car was first stopped.
Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981‑82, 26 L.Ed.2d 419 (1970).
Commonwealth v. Markou, 391 Mass. 27, 29‑32,
459 N.E.2d 1225 (1984).
[2]
Underlying the Markou
decision is the idea that if a search is constitutionally permissible on the street,
with attendant risks (attempts to interfere with search, exposure to traffic)
and awkwardness (tools not at hand, obstruction of traffic), the occupants of
the car are no worse off (i.e., suffer no greater intrusion) if the search is
continued in the secure setting of the police station. 391 Mass. at 30, 459 N.E.2d 1225. See also
United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct.
2157, 2163 n. 9, 72 L.Ed.2d 572 (1982); Commonwealth v. Bakoian,
412 Mass. 295, 304‑305, 588 N.E.2d 667 (1992); Commonwealth v. Billard, 23 Mass.App.Ct.
1019, 1021, 505 N.E.2d 555 (1987). The
defendant attempts to distinguish Markou on the ground that at the time
when Peter Markou's car was stopped and searched in
Williamstown, there were only two police officers on duty. One of those two could ill be spared to chase
a search warrant. In Boston, by
contrast, there was an ample supply of officers who could have obtained a
search warrant. It is not a significant
distinction because the cases to which we have referred emphasize the practical
good sense of treating a prompt police station search as an extension of the
street search which was or could have been made, rather than the unavailability
of police officers. As the Markou
opinion suggests, see 391 Mass. at 31, 459 N.E.2d 1225, if the police station [39 Mass.App.Ct.
549] search of a car is long delayed
after the initial car impoundment, e.g., twenty‑two hours as in State v. Quinn, 290 Or. 383, 390‑392,
623 P.2d 630 (1981), the underlying theory of exigent circumstances becomes
unconvincing, and the search may be bad.
In the instant case, however, Detective Primm's
search of the Lara automobile occurred within fifteen minutes after Primm brought it to the station lot. The motion to suppress was rightly denied.
2. Injection of the defendant's ethnic
background. During her opening, the
assistant district attorney referred twice to a "Spanish We Deliver"
drug selling operation that responded to telephone orders. During her direct examination of Detective
Martin, the prosecutor, over objection, asked:
"Are you familiar with a
Spanish We Deliver phrase? Are you
familiar with that phrase?"
The
witness answered, "I am," and when asked "what is your
familiarity with Spanish We Deliver," answered as follows:
"Spanish
We Deliver, for the Boston Police Drug Control Unit, and most police officers
in the city of Boston, denotes an organization of deliveries involving
Dominicans, who are the main delivery people for the product of cocaine in and
around the city of Boston. It has to do
with the deliveries of this drug by automobile and on foot."
In response to a question about what he was on the lookout for
on August 2, 1990, Detective Martin testified:
"There
are certain telephones in and around the area of Edward Everett Square that are
known to be used by the organization we call Spanish We Deliver."
During cross‑examination by defense
counsel, Detective Martin, when asked if baggies are a fairly common item,
answered: "Involving the ethnic
group that we are involved in. Yes
sir." He testified further:
[39 Mass.App.Ct.
550] "I can only answer that,
again, sir, is that involving different groups, each group has their own way of
packaging. And for the people‑‑the
ethnic group that we were involved with, it is very common for that ethnic
group to bag their cocaine in cut‑off baggies.... [In response to another question:] Dominicans, in distribution of cocaine, use
cut‑off baggies very commonly.
Certain individuals from other parts of the city of Boston use different
packaging for their distribution of the same type of white powder."
The prosecutor found dwelling on ethnic
labels equally tantalizing. On redirect,
over objection, she asked: "Which
group uses the cut‑off baggies?"
The response from Detective Martin was:
"It's
the common way of street level distribution involving the Spanish We Delivers,
which are controlled and operated by the Dominicans."
Asked what he meant by
"Dominicans," Martin explained, "They're from Santo
Domingo."
One might wish for more vigorous
objections and motions to strike by defense counsel to the persistent injection
of irrelevant references to the ethnicity of the defendant and the drug
operation of which‑‑so the prosecution suggested‑‑the
defendant was a part. Counsel did,
however, attempt objections when "Spanish We Deliver" and
"Dominicans" were introduced as topics of interrogation, and we do
not think, as the government suggests, that defense counsel waived objection to
the ethnicity line of questions by not persisting in objections that had proved
unsuccessful. Nor do we think it a fair argument by the government that defense
counsel's own considerable questioning of police witnesses about ethnic
patterns constituted an endorsement of the relevance of the government's
discussion of ethnicity. At that point,
defense counsel was engaged in trying to contest whether the ethnic label had
been properly pinned on his client.
[3][4] [39 Mass.App.Ct. 551] Prosecutors "may not appeal to [ethnic or] racial prejudice
to obtain a guilty verdict." Commonwealth v. Washington, 28 Mass.App.Ct. 271, 273, 549 N.E.2d 446 (1990). See also
United States v. Vue, 13 F.3d 1206, 1213 (8th
Cir.1994); United States v. Saccoccia,
58 F.3d 754, 774 (1st Cir.1995). That is
not a novel principle, but one of old standing.
See Commonwealth v. Kazules, 246 Mass. 564, 566, 141 N.E. 584 (1923);
Commonwealth v. Graziano, 368 Mass. 325,
331‑333, 331 N.E.2d 808 (1975), ("appeal to popular ethnic
stereotypes went beyond permissible limits"). As in
Commonwealth v. Mahdi, 388 Mass. 679, 693, 448
N.E.2d 704 (1983), the references in this case to ethnicity served no apparent
purpose other than to play on the fears and possible prejudices of the jury
rather than to appeal to the jury's calm consideration of the evidence. See
Commonwealth v. Perry, 254 Mass. 520, 531, 150 N.E. 854 (1926);
Commonwealth v. Shelley, 374 Mass. 466, 470, 373 N.E.2d 951 (1978);
Commonwealth v. Gallego, 27 Mass.App.Ct. 714, 717‑719, 542 N.E.2d 323 (1989).
There are occasions when references to
the ethnicity of persons in a case are relevant. See, e.g.,
Commonwealth v. Washington, 28 Mass.App.Ct. at
274, 549 N.E.2d 446 (victim's purported fear of black people was probative of
why she did not complain to certain individuals that she had been raped);
United States v. Saccoccia, 58 F.3d at 775
(reference to Colombians, in context, was relevant to a money laundering
operation and was not received to suggest that Colombians are prone to
violence). Here, however, the government
had a solid and routine drug dealing case.
The detectives had observed a drug transaction from its inception
through its conclusion. Martin had
succeeded in actually seeing drugs change hands from seller to buyer. Thereafter, the officers had obtained the
fruits of the car search, viz., a sizeable stash of drugs, packaged for street
sale in the same fashion as the drug transaction they had just observed and
intercepted. The defendant was also
carrying $1,400 in cash when arrested.
[5] What the ethnic background of the
defendant was, and whether he was a member of a Spanish‑speaking drug
ring of Dominican background filled in no missing aspect of the [39 Mass.App.Ct.
552] crime charged. The references to ethnic background, in the
trial context, could serve no purpose other than to influence the jury to
resolve doubts against the defendant because he was a member of a foreign and,
thereby, suspect people. The defendant,
incidentally, was Spanish speaking (FN1) and from the Dominican Republic. To an impermissible degree, he was tried for
ethnic association rather than for the crime he was accused of having
committed. It may be that the underlying
prosecution case was a powerful one, but the defendant has a right to a fair
trial. See Commonwealth v. Kazules, 246 Mass. at 566, 141 N.E. 584;
United States v. Vue, 13 F.3d at
1213. Lara took the stand and testified
that he did not know there were drugs hidden in the car and that he did not
participate in a sale of drugs. To be
sure, his story required some suspension of disbelief on the jury's part, but
to the degree Lara had a chance of having the jury accept his version of
events, much depended on what the jury thought about Lara's credibility. That credibility was likely to be impaired by
ethnic innuendos. Admission of the
improper ethnic references is seldom harmless error. See Commonwealth v. Kazules,
246 Mass. at 566, 141 N.E. 584; United States v. Rodriguez‑Cortes,
949 F.2d 532, 542 (1st Cir.1991); United States v. Vue,
13 F.3d at 1213; United States v. Saccoccia,
58 F.3d at 776. It was not harmless in
this case.
Judgments
reversed.
Verdicts
set aside.
(FN1.) He testified at trial through an
interpreter.