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Commonwealth v.
Appeals Court of Massachusetts, Middlesex.
No. 89‑P‑1153.
Argued
Decided
Further Appellate Review Denied
Dana A. Curhan,
Brownlow M. Speer, Committee for Public
Counsel Services,
Thomas F. Sullivan,
David R. Marks, Asst. Dist. Atty., for the Com.
Before [30 Mass.App.Ct. 207] ARMSTRONG, FINE and LAURENCE, JJ.
FINE, Justice.
Carlos
Bernier, Evelyn Munoz, and Enrique Santiago were convicted of trafficking in
cocaine, and Bernier was convicted also of possession of heroin, after a jury
trial in Superior Court. The police
found the cocaine and heroin after stopping a car in
1. Pretrial Issues.
a.
The two
officers arrived at the motel at about the same time. Trooper O'Neill observed
[1][2][3][4]
The judge ruled, first, that the trooper had reason to stop the car for traffic
violations.
Relying on Commonwealth v. Ford, 394 Mass. 421,
426, 476 N.E.2d 560 (1985), Santiago contends that his State constitutional
rights were violated when Trooper O'Neill opened the trunk to retrieve Bernier's
guitar because there were no standard police procedures covering such
actions. See also Commonwealth v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988). In light of the finding of consent, we need
not decide whether a police officer may honor a request of a passenger for
personal belongings in a closed trunk of an automobile belonging to another,
absent standard police procedures on the subject. Nor is it necessary for us to decide what
significance to give to the fact that the package would inevitably have been
discovered in the course of an inventory search conducted in accordance with a
standard written State police motor vehicle inventory policy applicable to the
contents of any towed car. See Harris v. United States, 390 U.S. 234,
88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. O'Connor, 406 Mass. 112,
546 N.E.2d 336 (1989). The contraband,
being in plain view, was properly seized.
Contrast Commonwealth v. Silva,
366
Mass. 402, 409‑410, 318 N.E.2d 895 (1974). (FN2)
[5] b. Motions to suppress filed by Bernier and
Munoz. Santiago's motion to
suppress, accompanied by his affidavit, was filed and heard on July 14,
1988. On May 13, 1988, a motion to
suppress drugs seized in the same incident had been [30 Mass.App.Ct. 212]
filed on Munoz's behalf. Munoz's motion
was accompanied by an affidavit signed by her attorney. On June 9, 1988, Bernier had filed a motion
to suppress the same evidence, based upon the same police actions, also
accompanied by an affidavit signed by his attorney. On July 14, 1988, all three defendants
appeared for a hearing on the motions to suppress. On that date Munoz presented her own
affidavit in which she swore to the truth of the contents of her attorney's
affidavit, and Bernier also offered to produce his own affidavit. The judge denied the motions to suppress
filed by Bernier and Munoz without a hearing on the merits. He appears to have based his action on their
lack of standing to raise the issues as mere passengers in the car and on
technical deficiencies, untimeliness, and the failure to produce affidavits
with sufficient particulars based upon personal knowledge of the affiants. See Mass.R.Crim.P. 13(a)(2), 378 Mass. 871
(1979). He then proceeded to hear and
decide Santiago's motion to suppress.
"When
a defendant is charged with a crime in which possession of the seized evidence
at the time of the contested search is an essential element of guilt, the
defendant shall be deemed to have standing to contest the legality of the
search and the seizure of that evidence." Commonwealth v. Amendola,
406 Mass. 592, 601, 550 N.E.2d 121 (1990).
Both Munoz and Bernier, therefore, had standing. Their affidavits, however, did not meet the
strict requirements of the rule.
Ordinarily, a judge is not obligated to consider a motion not satisfying
the requirements of an applicable rule.
See Commonwealth v. Bongarzone,
390 Mass. 326, 337, 455 N.E.2d 1183 (1983); Commonwealth v. Pope, 15 Mass.App.Ct.
505, 507, 446 N.E.2d 741 (1983). In some
circumstances, however, insistence on strict requirements to deprive a
defendant of a fair hearing of a motion raising a constitutional claim may be
an abuse of discretion. See
Mass.R.Crim.P. 2(a), 378 Mass. 844 (1979); Commonwealth v. Santosuosso, 23
Mass.App.Ct. 310, 501 N.E.2d 1186 (1986).
Cf. Commonwealth v. Benjamin,
358 Mass. 672, 676 n. 5, 266 N.E.2d 662 (1971).
In this
case, notwithstanding any insufficiencies in the affidavits, the purposes of
the affidavit requirement of [30
Mass.App.Ct. 213] Mass.R.Crim.P. 13
were satisfied. Those purposes, which we
continue to regard as important, are "(1) to give the judge considering
the motion a statement of anticipated evidence, in reliable form, to meet the
defendant's initial burden of establishing the facts necessary to support his
motion, and (2) to provide the Commonwealth with fair notice of the specific
facts relied on in support of the motion set forth in a form, i.e., under oath,
which is not readily subject to change by the affiant."
Commonwealth v. Santosuosso, 23 Mass.App.Ct. at 313, 501 N.E.2d 1186
(citation omitted). The affidavits filed
by Bernier and Munoz were sufficient to indicate to the judge and prosecutor
that both claimed constitutional violations in the warrantless search of the
car Santiago was driving and in which they were passengers when it was stopped
by Trooper O'Neill. Facts relating to
the stop were contained in Santiago's affidavit, which the judge apparently
regarded as sufficient, thereby providing the Commonwealth with the requisite
notice. Any facts relating to the
officers' knowledge of criminal activity or state of mind, on the other hand,
were peculiarly available only to those officers. Aware that the claims were based upon a
warrantless search, the Commonwealth must have known that it would have the
burden of producing evidence bringing the search within one of the recognized
exceptions to the warrant requirement.
See Commonwealth v. Antobenedetto,
366 Mass. 51, 315 N.E.2d 530 (1974).
The
hearing on Santiago's motion concerning the same incident was about to go
forward. To allow Bernier and Munoz to
participate in the hearing would have required little extra time and
inconvenience. Their inability to
participate may well have substantially affected their rights, notwithstanding
the full hearing given to Santiago's motion.
Evidence brought out later in the course of the trial, but which
Santiago failed to raise in the course of his hearing, might have been brought
out by Bernier and Munoz at the motion hearing by way of cross‑examination
of Trooper O'Neill or introduction of additional evidence. Among other things, in an effort to show that
the degree of intrusiveness was so unreasonable that the officers effected an
arrest rather than a stop, they might have
[30 Mass.App.Ct. 214] brought
out evidence, produced for the first time at trial, that Trooper O'Neill
approached the car with his gun drawn.
To discredit testimony that the heroin was taken from Bernier's top
shirt pocket, they might have brought out the evidence produced at trial that
Bernier might have been wearing a sweater that had no pocket. Further, they might have presented evidence
of the circumstances of the opening of the opaque rectangular container in
which the cocaine was packed and raised the issue, not raised by Santiago at
the hearing on his motion to suppress, that a warrant was required. According to the evidence at trial, the
package was opened at the State police testing laboratory the day following the
arrest. Unless the package was opened in
conformity with a written State police inventory policy, or the container's
distinctive appearance clearly announced its contents, in the absence of either
a search warrant or probable cause to search the entire car, the warrantless
opening of the package would raise questions of constitutional dimension. See United States v. Chadwick, 433 U.S. 1, 97
S.Ct. 2476, 53 L.Ed.2d 538 (1977); Arkansas v. Sanders, 442 U.S. 753, 99
S.Ct. 2586, 61 L.Ed.2d 235 (1979); Robbins v. California, 453 U.S. 420, 101
S.Ct. 2841, 69 L.Ed.2d 744 (1981); Commonwealth v. Bishop, 402 Mass. at
451, 523 N.E.2d 779. See also
Texas v. Brown, 460 U.S. 730, 747‑751, 103 S.Ct. 1535, 1546‑48,
75 L.Ed.2d 502, Stevens, J., concurring (1983).
Of course, if it should be found that Trooper O'Neill discovered the
heroin on Bernier's person, there may have been probable cause to believe that
the vehicle contained drugs, justifying a search of every part of the vehicle
and its contents. See
Commonwealth v. Ross, 456 U.S. 798, 823‑825, 102 S.Ct. 2157, 2172‑73,
72 L.Ed.2d 572 (1982); Commonwealth v. Cast, 407 Mass. 891, 901‑903,
556 N.E.2d 69 (1990); Commonwealth v. Moses, 408 Mass. at 144,
557 N.E.2d 14; Commonwealth v. Jiminez, 22 Mass.App.Ct.
286, 290‑291, 493 N.E.2d 501 (1986).
If there was probable cause, it would be immaterial whether the package
was opened during the initial stop or after it was taken into police custody.
United States v. Johns, 469 U.S. 478, 486‑487, 105 S.Ct. 881,
886, 83 L.Ed.2d 890 (1985). United States v. Burnett, 791 F.2d 64,
68 (6th Cir.1986).
We rule
that it was an abuse of discretion to deny Bernier and Munoz the right to be
heard on their motions to suppress,[30
Mass.App.Ct. 215] and we order that those motions now be
heard. Munoz contends that facts relating
to the search, which came out at trial but not at the hearing on Santiago's
motion to suppress, require this court to rule that the cocaine should have
been suppressed. Not only are there
possible legal obstacles to such a ruling, but credibility issues would be
involved in the determinations she asks us to make, and we would not make them
in the first instance.
[6] c. Bernier's severance motion. Bernier moved unsuccessfully before trial
for severance of his case from that of Santiago and Munoz. The motion was based on a statement made by
Santiago to Munoz at the police station after the arrest that "We are all fucked." (FN3)
The statement was introduced in evidence. The judge instructed the jury immediately,
however, and again at the close of the evidence, that it should not be
considered as evidence against Bernier.
Relying on Bruton v. United
States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968),
Bernier alleges that, because the jury heard what amounted to a statement that
implicated him in the crime and because Santiago exercised his privilege under
the Fifth Amendment to the United States Constitution not to testify, Bernier
was deprived of his right of confrontation under the Sixth Amendment to the
United States Constitution.
We do not
think the Bruton rule applies to the
statement. We regard it as neither
powerfully incriminating nor devastating.
See Commonwealth v. Devlin,
365 Mass. 149, 159‑161, 310 N.E.2d 353 (1974); Commonwealth v. French, 357
Mass. 356, 375, 259 N.E.2d 195 (1970).
The statement is ambiguous, and Bernier was not named. See
Commonwealth v. Keevan, 400 Mass. 557, 570, 511 N.E.2d 534 (1987). Read in context, we do not think it likely
the words used would be interpreted as to implicate Bernier in the
traffickingoffense. [30 Mass.App.Ct. 216] Even if Bernier was
intended to be included in the pronoun "we," or the word
"all," the more likely reference is to the predicament of the three
defendants at the time, having been caught with cocaine in the trunk and heroin
in Bernier's pocket, being under arrest, and experiencing difficulty arranging
bail. Because the Bruton rule does not apply, we need not decide whether the
admission of the statement was harmless beyond a reasonable doubt under the
stringent test of Commonwealth v.
Sinnott, 399 Mass. 863, 872, 507 N.E.2d 699 (1987), and Commonwealth v. Cunningham, 405 Mass. 646, 649, 543 N.E.2d 12
(1989). See also Commonwealth v. Bongarzone, 390 Mass. at 342, 455 N.E.2d 1183;
Commonwealth v. Keevan, 400 Mass. at 570, 511 N.E.2d 534. Given the equivocal nature of the statement,
however, we think it most unlikely that it affected the verdict. The judge did not abuse his discretion in
denying Bernier's motion to sever.
2. Trial Issues.
[7] a. Sufficiency of the evidence of trafficking
against Bernier. Of the three
defendants, only Bernier challenges on appeal the sufficiency of the evidence
against him of trafficking in cocaine.
His motion for a required finding of not guilty filed at the close of the
Commonwealth's case was denied, and he offered no evidence in his defense. The quantity of cocaine, over 1,000 grams,
was sufficient to satisfy the requirements for conviction of trafficking (G.L.
c. 94C, § 32E[b ][3] ), and there was
evidence tying both Munoz and Santiago directly to the cocaine. The case against Bernier, on the other hand,
was presented to the jury on a joint venture theory. We must decide, therefore, whether any
rational trier of fact, taking the evidence and reasonable inferences therefrom
in a light most favorable to the Commonwealth, could have found beyond a
reasonable doubt that Bernier participated in the offense, at least as a joint
venturer. See Commonwealth v. Latimore, 378 Mass. 671, 676‑677, 393 N.E.2d
370 (1979). The test is "whether
[the] defendant was (1) present at the scene of the crime, (2) with knowledge
that another intend[ed] to commit the crime or with intent to commit a crime,
and (3) by agreement [was] willing and available to help the other if [30 Mass.App.Ct. 217] necessary." Commonwealth v. Longo, 402
Mass. 482, 486, 524 N.E.2d 67 (1988), and cases cited. See
Commonwealth v. Mahoney, 405 Mass. 326, 327, 540 N.E.2d 179 (1989);
Commonwealth v. Ramos, 30 Mass.App.Ct. 915, 566 N.E.2d 1141 (1991).
Bernier's presence
and his association with Santiago and Munoz are established. His appeal turns on the sufficiency of the evidence that he knew of their criminal
activities and intended to render them aid and assistance. It is rare that one's state of mind can be
proved by direct evidence. Resort must
be had, therefore, to the facts and circumstances and the reasonable inferences
to which they give rise. See Commonwealth v. Longo, 402 Mass. at 486‑487,
524 N.E.2d 67. Inferences of knowledge
and intent need not be necessary or inescapable; it suffices for these purposes if the
inferences are reasonable and possible.
See Commonwealth v. Casale,
381 Mass. 167, 173, 408 N.E.2d 841 (1980).
The
evidence linking Bernier to the trafficking offense was the following. He checked into the Malden motel with Munoz
and Santiago at 3:00 A.M. on January 25, 1988, and took an adjoining room. All three listed the same home address, in
Chelsea, and the same car registration.
On January 28, 1988, the three moved from the rooms in which they had
been staying into one room. A large
number of telephone calls were made from the room, including some out‑of‑State
and overseas. Eleven calls were made on
January 28, twenty‑three on January 29, and twelve on January 30. Santiago had a beeper in his possession, and
Munoz had a "curb sheet," or drug price list. The three left the room hurriedly together on
January 30, 1988, once the presence at the motel of a State police cruiser was
noted. Santiago threw something into the
trunk of the car, and it sped off. The
car did not stop when the cruiser's light and siren were first activated. Bernier was seen peering at the cruiser
several times and then bobbing down.
When the car came to a sudden stop, Santiago and Bernier jumped out, and
Bernier ducked behind the car. The brick
found in the trunk of the car was seventy‑eight percent pure
cocaine. It was packed in plastic and
masking tape and was surrounded by coffee grounds. [30 Mass.App.Ct. 218] The cocaine probably cost $18,000 to
$23,000, and, diluted, it had a potential street value of $400,000. A State police officer with experience in the
narcotics trade testified that traffickers often use neutral locations, such as
motels, and beepers, and often have other persons along with them to provide
security and to act as lookouts. He also
testified that it was common for traffickers to surround the cocaine with
coffee grounds to evade detection in transit by police dogs.
We think a
reasonable jury, using common sense, could conclude that the stay of several
days at the motel, a neutral location, the numerous phone calls, the beeper,
and the flight from the police were all related to the valuable brick of
cocaine, that the cocaine was probably in the motel room and carried out and dropped
in the trunk by Santiago, and that all three defendants formed a link in the
chain leading to its eventual sale on the street. Contrast
Commonwealth v. Mandile, 403 Mass. 93, 101, 525 N.E.2d 1322 (1988);
Commonwealth v. Saez, 21 Mass.App.Ct. 408, 411‑412, 487 N.E.2d
549 (1986).
The jury
could have found that Bernier participated in the offense by providing
surveillance as the car driven by Santiago was fleeing from the police. Even absent proof of actual participation,
however, his presence during the stay at the motel and during the flight from
the police put him in a position to aid the venture, if necessary, and could,
thus, have encouraged or emboldened his cohorts. See
Commonwealth v. Casale, 381 Mass. at 173, 408 N.E.2d 841;
Commonwealth v. Amaral, 13 Mass.App.Ct. 238, 242, 431 N.E.2d 941
(1982). The stay at the motel for
several days while Bernier had a home address nearby was not a commonplace
occurrence. While Bernier's flight from
the police, suggesting consciousness of guilt, would not, by itself, be
sufficient to prove the requisite knowledge and intent, see Commonwealth v. Salemme, 395 Mass. 594, 601‑602, 481 N.E.2d
471 (1985), we think all the circumstances together, including the flight, give
rise to a reasonable inference that the activities of all three individuals,
including Bernier, over the course of the few days before apprehension were
directed towards possessing and eventually transferring the valuable [30 Mass.App.Ct. 219] brick of cocaine. Bernier's motion for required finding of not
guilty of trafficking, therefore, was properly denied.
[8] b. Admissibility of statements made by
Santiago and Munoz on the telephone. General Laws c. 276, § 33A, requires the
police to inform anyone "held in custody" of his right to use the
telephone "forthwith upon ... arrival at [the] place of detention"
and to permit use of the telephone "within one hour thereafter." (FN4)
Santiago and Munoz contend that the police intentionally violated that
statute by failing to give them timely notification of their right to use the
telephone and by waiting more than an hour before affording them the
opportunity to use a telephone. Any
evidence obtained as a result of that delay, they maintain, should have been
suppressed. See Commonwealth v. Jones, 362 Mass. 497, 503, 287 N.E.2d 599 (1972).
Neither
Santiago nor Munoz claimed in the trial court that there was any delay in
notifying them of their right to use the telephone. There was some evidence that Santiago was
given his rights in a timely manner and that, even if there was some delay in
formally giving Munoz her rights, she assisted the police by translating when
her codefendants were being given their rights.
The record does not indicate conclusively, therefore, that the required
notification was not given. In these
circumstances, we need not consider the argument on appeal. See
Commonwealth v. Pares‑Ramirez, 400 Mass. 604, 609, 511 N.E.2d 344
(1987).
With
respect to the allegation that their opportunity to use a telephone was intentionally delayed more than an hour, [30 Mass.App.Ct. 220] Santiago and Munoz claim that the
police waited to permit them to use a telephone until a Spanish‑speaking
officer could eavesdrop on their conversations.
Trooper Dagoberto Driggs had been summoned from another location and
arrived at the station about four hours after the defendants had arrived. He was in the booking room with Santiago and
Munoz when they asked to use the telephone.
Without informing them that he understood Spanish, Trooper Driggs listened
to Santiago and Munoz as each conversed on the telephone in Spanish. He made notes while they were on the
telephone and testified about the conversations at trial.
Before
allowing the testimony, the judge held a voir dire and found that any delay in
giving the defendants the opportunity to use the telephone was not
intentional. There was evidentiary
support for the finding. Trooper Driggs
testified that while he was in the booking room with Santiago and Munoz he
overheard them speaking to each other in Spanish, and they discussed whether
the calls should be made. They asked to
use the phone following that conversation, and the phone was made
available. No evidence was presented
that either Santiago or Munoz had requested and been denied earlier use of the
phone. Indeed, Trooper O'Neill testified
that Munoz had made one or two phone calls before Trooper Driggs's
arrival. As the judge's finding that any
violation of the statute was unintentional was warranted, exclusion of the
conversations was not required. See Commonwealth v. Parker, 402 Mass. 333,
341, 522 N.E.2d 924 (1988).
[9] Munoz
makes the further argument that Trooper Driggs should not have been permitted
to testify concerning her inculpatory statements made on the telephone in the booking
room because he was unable to recall the entire conversations. On cross‑examination, Munoz established
that she had conversed in Spanish, that Trooper Driggs had made notes only in
English and only of statements that might be incriminating, that he was relying
on those notes for his testimony, and that he did not remember any other parts
of the conversation or whether there were any exculpatory statements. [30
Mass.App.Ct. 221] Based on the cross‑examination,
she moved to strike Driggs's testimony.
Munoz
relies, first, on the doctrine of "verbal completeness." In accordance with that doctrine she would
be entitled to offer other parts of a conversation introduced against her so
long as they dealt with the same subject matter and explained or qualified the
part of the conversation which was admitted.
See Commonwealth v. Watson,
377 Mass. 814, 825‑834, 388 N.E.2d 680 (1979), and cases cited;
Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 478‑479, 488
N.E.2d 780 (1986); Liacos, Massachusetts
Evidence 443 (1981). The doctrine
governs the admissibility of statements otherwise inadmissible, not the
exclusion of statements otherwise admissible.
Thus, it has no application to the present situation.
Munoz
raises a more serious question about Trooper Driggs's testimony based upon her
constitutional right of confrontation.
"The main and essential purpose of confrontation is to secure for
the opponent the opportunity of cross‑examination."
Davis v. Alaska, 415 U.S. 308, 315‑316, 94 S.Ct. 1105, 1110,
39 L.Ed.2d 347 (1974), quoting from 5 Wigmore, Evidence § 1395, at 123 (3d ed.
1940). See Commonwealth v. Funches, 379 Mass. 283, 292, 397 N.E.2d 1097
(1979). Where there is no opportunity to
cross‑examine a witness, because, for example, he is uncooperative, fails
to appear, or invokes his privilege against self‑incrimination, the
striking of any direct testimony by that witness may be constitutionally
required.
Ibid. See also Commonwealth v. Johnson, 365 Mass. 534,
543, 313 N.E.2d 571 (1974); Commonwealth v. Furtick, 386 Mass. 477,
482‑483, 436 N.E.2d 396 (1982); Commonwealth v. Kirouac, 405 Mass. 557,
560‑562, 564 n. 6, 542 N.E.2d 270 (1989).
Generally, a witness's inability to answer questions on cross‑examination
due to lapse of memory, however, does not require striking his direct
testimony. Commonwealth v. Amirault, 404 Mass. 221,
234‑235, 535 N.E.2d 193 (1989).
See United States v. Owens,
484 U.S. 554, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988).
Trooper
Driggs may well have testified honestly about his lapse of memory. The situation is unusual, however, insofar as
Trooper Driggs may have put himself beyond the reach of effective cross‑examination
by his selective note taking.
Unquestionably,[30
Mass.App.Ct. 222] such a police practice has a potential for
unfairness and should be avoided.
(FN5) Compare Commonwealth v. Fernette, 398 Mass. 658, 664‑665, 500 N.E.2d
1290 (1986). The trial judge might have
been warranted in excluding the evidence on those grounds. We decline to rule, however, that exclusion
was required. Considering, by analogy,
the constitutional requirement set forth in
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that
the prosecution disclose all exculpatory evidence in its possession, a
defendant is not entitled to a remedy unless he can show that the undisclosed
evidence would have been exculpatory.
See Commonwealth v. Pisa, 372
Mass. 590, 595‑596, 363 N.E.2d 245 (1977); Commonwealth v. Doherty,
394 Mass. 341, 348, 476 N.E.2d 169 (1985).
There is no indication from any source that Munoz actually made any
exculpatory statement during the conversation.
The claim of unfairness, therefore, is based upon speculation. Moreover, Munoz's attorney cross‑examined
Trooper Driggs thoroughly about the limitations of his memory, his reliance on
the notes, made in English of a Spanish conversation, to refresh his memory,
and, in particular, the fact that he had made notes only of the incriminating
parts of the conversation. In the
circumstances, it is not clear that the "fact‑finding process"
was "so distort[ed] ... that the Constitution compels a remedy."
Commonwealth v. Funches, 379 Mass. at 292, 397 N.E.2d 1097.
[10] c. Santiago's claim of physical impossibility. Trooper O'Neill testified that he discovered
the heroin in Bernier's shirt pocket when Bernier was being pat‑frisked
for weapons. Santiago claims on appeal
that evidence he introduced, including a sweater and a photograph taken of
Bernier during the booking process, show that Bernier was wearing a sweater
without pockets at the time of his arrest.
He contends, therefore, that any evidence found as a result of the pat‑frisk
of Bernier should have been excluded "as being based upon a physically
impossible fact." Although
Santiago made no such contention at the hearing on his motion to suppress,[30 Mass.App.Ct. 223]
he did make the contention at trial by objecting to the introduction in
evidence of the drugs.
It was not
error to overrule the objection.
Santiago neither raised the issue in connection with his motion to
suppress nor voiced the contention at trial that he could not reasonably have
known about it at the time of the hearing on the motion. Thus, the issue was waived. See Mass.R.Crim.P. 13(a)(2), 378 Mass. 871
(1979);
Commonwealth v. Bailey, 370 Mass. 388, 398, 348 N.E.2d 746 (1976);
Commonwealth v. Gauthier, 5 Mass.App.Ct. 185, 187, 360 N.E.2d 683
(1977);
Commonwealth v. Mott, 5 Mass.App.Ct. 811, 361 N.E.2d 952
(1977). Moreover, it would not have been
impossible for Bernier to change his clothing between the time of his arrest
and being photographed. (FN6) Even assuming Bernier was wearing a sweater
without pockets at the time of arrest, suppression would not be required. Trooper O'Neill's memory may have been
faulty; he might have found the drugs in
Bernier's pants pocket. Any
inconsistency between Trooper O'Neill's testimony and other evidence was a
proper basis upon which to impeach the witnesses' version of the search. Santiago took full advantage of his right to
present the inconsistency to the jury for whatever that might have been worth
to him.
[11] d. The prosecutor's closing argument. Bernier argues that the prosecutor made
improper closing argument. At trial, he
failed to object to the prosecutor's argument, however, indicating, to some
extent at least, that he did not then view the argument as unfairly
prejudicial. We review the argument to
determine whether there were errors which created a substantial risk of a
miscarriage of justice. Commonwealth v. Sanchez, 405 Mass. 369,
375, 540 N.E.2d 1316 (1989), and cases cited.
[12][13]
Some portions of the argument Bernier now challenges were not improper. The prosecutor stated that in departing from
the motel Bernier was "attempting to run for it." That was a reasonable inference from the
evidence. When viewed in context, the
statement "we know [Santiago, Bernier and [30 Mass.App.Ct. 224]
Munoz] were working together" was not a suggestion of the prosecutor's
personal knowledge but a request that the jury draw that inference from the
evidence.
[14] In
three instances the prosecutor's argument may have been unsupported by the
evidence. The prosecutor stated that
when Bernier jumped from the car "he thought about [fleeing] for some
time." Although not a matter of
great significance, the prosecutor may have crossed the line into
speculation. The prosecutor also said
that no telephone calls were made by the defendants during their first three
days at the motel. In fact, there was
evidence that one call was made on one of those days, and there were no records
for other days. The Commonwealth
concedes some exaggeration on the prosecutor's part. The significant point about the telephone
calls, in our view, however, was the large number made on the last two days and
not the paucity of calls on the other days.
Finally, the prosecutor, in commenting on the evidence that Bernier had
only four dollars on his person when arrested, stated "all his money was
tied up in the cocaine and the heroin."
There was no such direct evidence, however.
Proper
argument should be limited to the evidence and fair inferences based on the
evidence. See Commonwealth v. Connor, 392 Mass. 838, 853, 467 N.E.2d 1340
(1984). The judge instructed the jury
that arguments of counsel were not evidence, and the verdict was to be based
only on the evidence. The errors, viewed
in the context of the lengthy trial and the entire closing argument, dealt with
collateral issues and were far from
outrageous. See Commonwealth v. Kozec, 399 Mass. 514, 522, 505 N.E.2d 519
(1987). Although the evidence against
Bernier was not overwhelming, we think the improprieties, in light of the
judge's instructions, were of little practical effect and did not deprive
Bernier of a fair trial on the central issue.
Contrast Commonwealth v. Hoppin,
387 Mass. 25, 31, 438 N.E.2d 820 (1982).
Accordingly,
we affirm Santiago's conviction. We
remand the cases against Bernier and Munoz for a hearing on their motions to
suppress. If the motions are allowed,
subject to the Commonwealth's right of appeal, see Mass.R.Crim.P. 15(a)(2), 378
Mass. 882‑883 (1979), the convictions of the [30 Mass.App.Ct. 225]
defendants Bernier and Munoz shall be reversed and they shall be entitled to a
new trial. If the motions are denied,
the convictions shall be affirmed, subject to the defendants' right to appeal
from the denial of the motion to suppress.
So ordered.
(FN1.) Two against Carlos J. Bernier and one
against Evelyn Munoz.
(FN2.)
Bernier testified at the hearing on Santiago's motion to suppress, and an
exhibit was introduced in evidence in the course of his testimony. Without explanation on the record, the judge
ordered Bernier's testimony and the exhibit expunged from the record. The Commonwealth offers a possible
explanation by suggesting in a footnote in its appellate brief that Bernier
refused to answer some questions on cross‑examination. In any event, Santiago did not proceed under
Mass.R.A.P. 8(c), as amended, 378 Mass. 933 (1979), to perfect the record with
respect to Bernier's testimony for purposes of appeal. We may not reverse the ruling, therefore,
because of the alleged incompleteness of the record of the hearing.
(FN3.)
Bernier was not present during the conversation, which was as follows:
Santiago
said to Munoz, "The only one that can get you out is Tatto." Munoz responded, "I'm fucked. Paulina talked with Tino." Santiago:
"Why did they single my car?"
Munoz: "I didn't tell them
anything." Santiago: "We are all fucked. Your parents have the money." Munoz:
"Call Tatto."
Santiago: "Call Pauline,
tell her to call Tatto."
(FN4.) General Laws c. 276, § 33A, as amended
through St.1963, c. 212, states:
"The
police official in charge of the station or other place of detention having a
telephone wherein a person is held in custody, shall permit the use of the
telephone, at the expense of the arrested person, for the purpose of allowing
the arrested person to communicate with his family or friends, or to arrange
for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith
upon his arrival at such station or place of detention, of his right to so use
the telephone, and such use shall be permitted within one hour thereafter."
(FN5.) In such situations, an officer should
at least jot down the general thrust of the conversation and note any
exculpatory statements, or the fact that none were made.
(FN6.) Trooper O'Neill testified that he was
not certain when Bernier was photographed and that it was not uncommon for
persons under arrest to change clothes while in custody.