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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Nutile, 31 Mass.App.Ct.
614 (1992)
Appeals Court of Massachusetts, Middlesex.
No. 90‑P‑868.
Argued
Decided
Further
Appellate Review Denied
James M. Smith,
Patricia M. Darrigo, Asst.
Dist. Atty. (Stephen Hoctor,
Special Asst. Dist. Atty., with her) for Com.
Before [31
Mass.App.Ct. 614]
PERRETTA, FINE and LAURENCE, JJ.
PERRETTA, Justice.
On appeal
from his conviction for trafficking in cocaine, the defendant claims error
in: the denial of his motion to suppress
evidence found in the car in which he was a passenger as well as items he threw
from the car while being pursued by the police;
the exclusion of a hearsay statement of a coventurer
which he argues was an admissible spontaneous utterance; the use of his prior drug conviction to show
statements inconsistent with his testimony;
the prosecutor's reference to a gun in his closing argument; and the judge's instruction to the jury that,
in determining the amount of cocaine in issue, they could also consider the
weight of any dilutant or mixing agent. We affirm the conviction. (FN1)
1. The facts. As the Commonwealth's case is largely
dependent upon the evidence seized from the car and found in the areas of the
chase, we relate the facts as found by the judge after the hearing on the
defendant's motion to suppress, filling in some of the details on the basis of
undisputed evidence in the transcript of that hearing. Those facts pertinent to the defendant's
other claims will be taken up later.
On
As they
drove along Prospect Street, the officers saw two men seated in a red and white
Cadillac parked in front of a house at the address given them. They recognized the man in the front passenger
seat as the defendant. The officers knew
the defendant and knew that he had been arrested recently for possession of
cocaine with intent to distribute and assault and battery of a police officer. They were also aware of the fact that the
defendant had been arrested twice in 1986, once for possession of a shotgun and
then for possession of handgun ammunition.
When the officers drove past the car, they saw the driver get out and
run into the house at 162 Prospect Street.
Proceeding
up the street, the officers made a U‑turn and returned. As they were doing so, they verified that the
car was registered to Paolino. Just as they were again passing the car, they
saw Paolino run out of the house and get back into
his car. He had a gun tucked in the
waistband of his trousers.
When Paolino drove away, the officers decided to follow him and
the defendant. They drove along about
two car lengths behind Paolino. Because of the distance and the hour, they
could see into the car through its back window.
It was not long before Paolino and the
defendant began turning in their seats to look out the back window. After several such glimpses, the defendant
momentarily disappeared from sight, apparently bending forward in his seat. When he came back into view, the officers saw
him reach back over into the rear seat, all the while watching the unmarked
cruiser through the back window. Coming
to an intersection, Paolino went through a stop sign
and turned left.
Now on a
narrow, curving, two‑lane road, Paolino found
himself behind a slow moving car, with the unmarked cruiser still following
him. Paolino
closed the distance between his car and that in front of him to about one
foot. It was after witnessing these two
traffic violations, failure to stop and following[31 Mass.App.Ct. 617] too closely, that the
officers decided to stop the car. They
turned on the cruiser's blue grill lights, but Paolino
refused to pull over. Next the officers
activated the cruiser's siren. Paolino pulled out, crossed the double‑yellow traffic
lines, and accelerated his car to about eighty miles an hour. The posted speed was thirty.
What had
begun as surveillance now changed to pursuit, with the officers calling for
assistance. As Paolino
sped along, the State, Weston, and Newton police were alerted. Throughout the chase, Benson and McDaniel
could see the defendant hurling objects out his window. Now on Route 30, Paolino
was nearing the entrance to the Massachusetts Turnpike. The chase ended when he was forced to stop
behind two or three cars at a red light.
Benson and McDaniel pulled alongside Paolino's
car, and the Weston police came from behind, making further flight impossible.
Approaching
the car with their weapons drawn, the detectives ordered Paolino
and the defendant out of their car.
While the Weston police and McDaniel stood by the defendant, Benson
arrested Paolino for his numerous traffic violations
and frisked him. Not finding the gun,
Benson looked into the car and saw a pouch with a bulge hanging from the rear of
the driver's seat. He reached into the
pouch and pulled out a round plastic container which he could see held a white
powdery substance.
A field
test was conducted on the powder, and it proved positive for cocaine. The defendant and Paolino
were arrested on drug charges. They and
the car were searched, and each man was found to be in possession of money and
notes consistent with drug transactions.
The officers then returned to the wooded areas along the route of the
chase where they had seen the defendant throwing objects from the car. Because of the terrain and the fact that it
was now dark, they found nothing.
When they
returned to these areas the next day, the officers found a large canvas bag
with numerous items strewn about and near the bag. Those items included a notebook, a [31 Mass.App.Ct.
618] scale, many syringes, a bottle
of "crack‑type cocaine," and two clear plastic bags of cocaine.
[1] 2. The motion to suppress. There can be no question that the detectives
had a right to follow Paolino and the defendant as
they drove away from 162 Prospect Street.
"We will not scrutinize police activity based on hunch or suspicion
[or confidential tips] until such time as that activity clashes with individual
rights." Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 419, 433 N.E.2d 1234 (1982). Further, the detectives' decision to stop Paolino was justified.
He had just committed two traffic offenses. The pursuit of Paolino
did not begin until after he refused to stop and, instead, crossed over the
double traffic lines into the opposite lane and accelerated his car to a speed
well in excess of the posted limited.
See Commonwealth v. Wren, 391
Mass. 705, 707, 463 N.E.2d 344 (1984), and cases therein cited. Compare
Commonwealth v. Thibeau, 384 Mass. 762, 429
N.E.2d 1009 (1981); Commonwealth v. Lyons, 409 Mass. 16, 564
N.E.2d 390 (1990).
[2][3]
Once the car was finally stopped, the detectives had the right to order its
occupants to step out and to frisk Paolino. They had seen Paolino
get into the car with a gun, they knew that the defendant had possessed
firearms in the past, and they were entitled to protect themselves. See
Commonwealth v. Almeida, 373 Mass. 266, 271‑272, 366 N.E.2d 756
(1977);
Commonwealth v. Robbins, 407 Mass. 147, 151‑152, 552 N.E.2d 77
(1990). When the gun was not found on Paolino, the situation changed dramatically. At that point, the detectives had every
reason to believe either that the gun was in the car, or worse, that it was one
of the objects thrown from the car by the defendant, who had not yet been
arrested. On these facts, as well as the
fact that the detectives had seen the defendant reaching over into the back of
the car, we conclude that Benson acted prudently and reasonably in removing the
bulging object from the pouch.
We need
not quibble with the defendant as to whether there was probable cause to search
the car for drugs or whether Benson could see into the container without
opening it. In our view, the situation
was now exigent. If the gun could not be
found in the car, it might well be on or near a [31 Mass.App.Ct. 619] public way. The search of
the car and any containers was justified.
See Commonwealth v. Moses, 408
Mass. 136, 144‑145, 557 N.E.2d 14 (1990).
(FN2) After cocaine and other
evidence of drug transactions were found in the car, the defendant was
arrested.
[4]
Turning to the objects thrown from the car during the chase and retrieved the
next day by the police, we think it clear that the "defendant had
voluntarily given up all control over the ... [items] and could have no
expectation of privacy with respect thereto [citations omitted]."
Commonwealth v. Battle, 365 Mass. 472, 475‑476, 313 N.E.2d 554
(1974). See also, Commonwealth v. Lanigan, 12 Mass.App.Ct. 913, 914, 423 N.E.2d 800 (1981). His reliance upon Commonwealth v. Pimentel, 27 Mass.App.Ct.
557, 560, 540 N.E.2d 1335 (1989), for the proposition that he did not throw the
objects until after he had been impermissibly detained, is based upon his
reasoning that once the officers signalled for Paolino to pull over, he and the defendant were no longer
free to leave. Neither that argument nor
the claim that the arrest was a pretext (see
Commonwealth v. Petrillo, 399 Mass. 487, 490‑491,
505 N.E.2d 169 [1987] ) warrants any discussion.
[5] 3. The spontaneous utterance. When Benson found the white powder in the
container, Paolino began to "rant,"
"rave," and "scream" that the substance was baking soda and
not cocaine. As noted, the field test of
the substance indicated otherwise. In any
event, the defendant claims that the judge erred in refusing to allow
Benson to relate Paolino's statement to the
jury. He claims that the statement was a
spontaneous utterance and, therefore, admissible under an exception to the
hearsay rule. In light of the
circumstances under which the statement was made, we see no error in the
judge's ruling. See Commonwealth v. Fuller, 399 Mass. 678, 682, 506 N.E.2d 852 (1987),
and cases therein cited.
[31 Mass.App.Ct.
620] As for the claim that the judge
"prohibited" evidence of statements by Paolino
to Benson that the cocaine and the pouch in the car were Paolino's,
the defendant is simply wrong. There was
nothing to suggest that Paolino ever made any such
statements to Benson. Rather, it was
defense counsel's position that one could infer from the fact of Paolino's ranting and screaming that the cocaine and bag
were his. To this argument, the judge
stated that Benson could be asked about Paolino's
demeanor but he would not allow hearsay statements until he knew what they were
and could rule on the basis of their content.
Toward that end, he allowed a voir dire
examination of Benson. During that
hearing, Benson stated that the only statement made by Paolino
was that the substance was baking soda.
The judge did not allow that statement, but neither did he preclude
inquiry of Benson concerning Paolino's demeanor and
behavior at the time of his arrest.
[6] 4. Impeachment of the defendant's credibility. Testifying on his own behalf, the defendant
stated that he had never possessed any large amounts of cocaine. He was a user of that drug and had purchased
it from Paolino, as well as others, in the past. On the night in issue, he met Paolino in a bar to buy some cocaine for himself and for a
friend. Because he had just cashed his
paycheck and his friend had given him money for his cocaine, he was carrying a
fair amount of cash, $420 in American and $175 in Canadian currency (the latter
from a friend).
When it
came time for the defendant to leave the bar, Paolino
agreed to give the defendant a ride to where he wanted to go. First, however, Paolino
had to stop at his girlfriend's house at 162 Prospect Street in Waltham. Paolino could not
have been in the house more than thirty seconds before he returned to the car
and told the defendant that there were detectives watching him. The defendant had no idea what was happening.
It was not
until Paolino became agitated and began screaming
that he did not want to get caught with drugs that the defendant noticed the
canvas bag on the floor of the front [31
Mass.App.Ct. 621]
seat. Being "no fool," the
defendant realized that there must have been drugs in the bag, even though he
had no idea of the amount. Because Paolino was yelling at him to throw the bag out the window,
he did not have time to open it and see what was in it.
After
impeaching the defendant's credibility with evidence of his numerous larceny
convictions, the prosecutor turned his attention to the chase and the
defendant's testimony that he had not noticed the bag in the front seat
earlier, that it was not his, and that it was the only object which he threw
from the car during the pursuit. He
testified that he had been unaware of the bag until Paolino
began yelling about it, because a Cadillac is a big car. Although he recognized some of the items
found by the police in the woods as being his, he had no idea how they got
there.
The
prosecutor next directed his attention to the defendant's testimony that he was
a mere user of cocaine and had never possessed it in any great amount. Without objection, the prosecutor directed
the defendant's attention to his arrest in June, 1988, for possession of a
"considerable" amount of cocaine and his "testimony" that
he had been transporting it for Paolino. Denying that he had made the statements
described by the prosecutor, the defendant explained that he had possessed
cocaine on that date, he would not call the amount "considerable,"
and he had not been carrying or selling it for Paolino. Rather, he had obtained the cocaine from Paolino for another user in exchange for which he was
"getting a piece" of the cocaine for his own consumption.
The sole
argument now with respect to the defendant's impeachment is that the use
of his prior conviction for possession of cocaine with intent to distribute was
so prejudicial, while lacking in any probative value, that it created a
substantial risk of a miscarriage of justice.
We do not agree. See
Commonwealth v. West, 312 Mass. 438, 440, 45 N.E.2d 260 (1942); Commonwealth
v. Helfant, 398 Mass. 214, 224‑225, 496
N.E.2d 433 (1986). (FN3)
[7] [31 Mass.App.Ct.
622] 5. The prosecutor's closing argument. In his closing argument to the jury, the
prosecutor stated that the defendant threw a gun from the car during the
chase. The defendant argues that this
remark was an "outrageous" misstatement of the evidence. The claim seems to be based upon the fact
that, although the gun was found in the exact place to which Paolino brought the police, it was far off the route of the
chase.
We see no
merit in the defendant's claim. The
detectives testified at trial that they saw Paolino
get into the car with a gun and that the defendant, known to the detectives as
having possessed weapons, threw a gun out the car window. The defendant testified that Paolino did not have a gun, that he, the defendant, threw
only the bag from the window, and that he was a mere user innocently caught up
in Paolino's drug trafficking.
That the
gun was ultimately found in a brown bag in bushes near the house of Paolino's mother does not support the claim that the
prosecutor misstated the evidence. The
defendant overlooks the additional evidence that the police looked for the gun
for over two days before promising Paolino that, if
he would tell them where they could find it, they would not prosecute him for
handgun violations. Even then, Paolino insisted upon making a telephone call and told the
police they would have to wait fifteen minutes before he would take them to the
spot where they could retrieve the weapon.
Note 2, supra. The inferences are obvious and fair, as was
the prosecutor's reference to the gun and the defendant's actions relative to
it. See Commonwealth v. Earltop, 372 Mass. 199,
205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring).
[8] 6. The jury instructions. Brought under G.L.
c. 94C, § 32E(b) (1988 ed.), the
indictment charged the defendant with possession of a "net weight of one
hundred grams or more of cocaine or any salt thereof or anymixture containing cocaine or any
salt thereof" (emphasis supplied).
The [31 Mass.App.Ct.
623] "one hundred grams or
more" came from the two bags found in the woods, one weighing 26.22 grams
(78% pure cocaine) and the other 22.47 grams (67% pure cocaine), and the
substance in the container found in the car, 84.62 grams.
Because
the substance weighing 84.62 grams assayed at less than one percent cocaine,
the defendant argues that the jury should not have been allowed to consider
it. The issue does not come to us from a
ruling on a motion to dismiss or a request for a required finding of not
guilty. (FN4) Rather, the defendant's argument is based
upon the judge's jury instruction, to which no objection was taken: "Under the laws of the Commonwealth, the
weight of a drug includes the weight of the drug plus the weight of any
impurity or any mixing ingredient."
This instruction is a correct statement of the law. See
Commonwealth v. Beverly, 389 Mass. 866, 868‑869, 452 N.E.2d 1112
(1983).
There is a
spin to the argument, however, most likely because of the procedural posture in
which it is made. The claim is as
follows. As applied to him, there is an
"unconstitutional ambiguity in the word 'mixture' in the statute [§
32E(b) ]." Id., at 869, 452 N.E.2d
1112. That being so, he argues, the
jury instruction presents a substantial risk of a miscarriage of justice. We pass over the procedural aspects of the
claim and conclude that the instruction was correct and applicable to the
defendant.
The
defendant has not argued that the substance is not a mixture. See, e.g.,
Chapman v. United States, 500 U.S. 453, 111 S.Ct.
1919, 114 L.Ed.2d 524 (1991). Instead,
he notes that in Commonwealth v. Beverly,
389 Mass. at 868, 452 N.E.2d 1112, the "powder was 3% heroin and 97% an
inert substance," whereas here "neither the inert material nor the
drug itself is measurable."
Building upon that distinction, he claims that because neither component
of the mixture is measurable, the statute did not give him constitutionally
sufficient notice that the mixture was an illegal [31 Mass.App.Ct. 624] substance. Hence, as
applied to him, the word "mixture" is unconstitutionally vague.
"[A]
statute does not fail to satisfy constitutional requirements merely because it
uses general terms when such terms so define the offense as to convey to a
person of ordinary understanding and intelligence an adequate description of
the prohibited act." Jacquith v.
Commonwealth, 331 Mass. 439, 442, 120 N.E.2d 189 (1954). Section 32E(b) could not be more clear in its language: a "net weight of fourteen grams or more
of any mixture containing a controlled substance." See
Opinions of the Justices, 378 Mass. 822, 827, 393 N.E.2d 313 (1979), cited
in Commonwealth v. Beverly, 389 Mass.
at 869, 452 N.E.2d 1112.
There was
evidence to show that the 84.62 grams of powder was a substance comprised of
two detectable components, baking soda and cocaine. It was, therefore, a mixture within the
common understanding of the word. There
was also evidence to show how that substance came to be a mixture rather than
retain its original form of pure baking soda.
Detective
Benson testified that the substance was, in his opinion, "predominantly
the cutting agent" to be used with the two bags of cocaine found in the
woods. Cocaine of that purity (67% and
78%), Benson explained, if it is to be ingested by smoking, is cut with baking
soda. He described the process. The cocaine is mixed with baking soda on a plate. The substance to be sold is then heated in
water, generally in a test tube, until a rock is formed. The rock is removed, sold, and smoked. The substance which was not put in the
heating vessel, the baking soda with its traces of cocaine from the cutting,
and which remained on the plate, is returned to the supply of the cutting
agent, here the baking soda, for further use.
It is by
this process that a supply of once pure baking soda becomes a mixture of baking
soda and cocaine. Benson also testified
that in his experience in drug investigations, he had seen percentages of
cocaine in substances for "street sales," (sales to consumers where
there is to be no further cutting as with sales between dealers) with ranges
from as low as one percent.
[31 Mass.App.Ct.
625] One reasonably could infer from
the evidence concerning this process that what once might have been pure baking
soda becomes a mixture after a single use of it in cutting cocaine and that the
more the mixture is used, the more the cocaine component increases. We do not view the term "mixture"
as vague simply because the amount of cocaine was not measurable. Nor do we view the word "mixture,"
as applied to this defendant, as providing him with insufficient notice that
his conduct was criminal. "In
short, the constitutional burden imposed by the vagueness doctrine requires
simply that the statute be drafted in such form as to present 'ascertainable
standards of guilt.' Winters v. New York, 333 U.S. 507, 515
[68 S.Ct. 665, 670, 92 L.Ed.
840] (1948). United States v. Herrera 584 F.2d 1137,
1149 (2d Cir.1978). The fact that close
questions may arise in determining guilt does not render the statute
unconstitutionally vague. United States v. Douglass, 579 F.2d 545,
548 (9th Cir.1978)." Opinion of the Justices, 378 Mass. at
827, 393 N.E.2d 313. The substance in
issue was not a "mixture" because of the presence of an unintentional
impurity. Rather, the substance became a
"mixture" because a controlled substance, cocaine, was
knowingly and intentionally added to the baking soda for purposes of drug
trafficking. Compare id. at 826 n. 3, 393 N.E.2d 313 n. 3 ("A law may also be
judged void for vagueness if 'it encourages arbitrary and erratic arrests and
convictions.' Papachristou v.
Jacksonville, 405 U.S. 156, 162 [92 S.Ct. 839,
843, 31 L.Ed.2d 110] [1972]"). (FN5)
It follows
that, as the jury instruction was a correct statement of the law, which as
applied to the defendant was not unconstitutionally ambiguous, his conviction
does not present a substantial risk of a miscarriage of justice.
Judgment affirmed.
(FN1.) We do not consider the defendant's
conviction for possession of a hypodermic syringe as that indictment was placed
on file with the defendant's assent, and there are no exceptional circumstances
warranting our consideration of his conviction on that indictment. See
Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).
(FN2.)
We learn from the trial transcript that Paolino told
the police where the gun could be found only after they bought him a veal
cutlet dinner from a local restaurant, promised not to charge him with
possession of a handgun, allowed him to make a telephone call, and agreed to
wait fifteen minutes before going with him to retrieve the gun.
(FN3.)
Because the defendant makes no argument on appeal that the questions were
precluded by Mass.R.Crim.P. 12(f), 378 Mass. 870‑871
(1979), and because the transcript does not reveal when the defendant made
these prior statements which were inconsistent with his testimony at trial, we
have considered his claim on the narrow basis presented. But see
Commonwealth v. Lewin (No. 2), 407 Mass. 629,
630, 555 N.E.2d 557 (1990).
(FN4.)
The only semblance of a request for a required finding of not guilty came in
the form of the statement, "The usual motions, your Honor." The request was denied, and the defendant
does not argue that the denial was erroneous.
Appellate counsel did not represent the defendant at trial.
(FN5.)
We do not suggest that a mixture of any weight containing a trace of a
controlled substance would in and of itself support an inference of possession with intent to distribute. See, e.g., Commonwealth v. Wooden, 13 Mass.App.Ct.
at 422‑424, 433 N.E.2d 1234, and cases therein cited.