Commonwealth v. Monteiro

On appeal from convictions of drug and school zone violations, assault and battery on a public employee, and resisting arrest, and from the denial of his new trial motion, the defendant contends that (1) the motion judge erred in denying his motion to suppress evidence, (2) the Commonwealth presented insufficient evidence of constructive possession and of school zone violations, (3) the trial judge erred in excluding the defendant's hearsay statement, (4) introduction of drugs and certificates of analysis labeled with the defendant's name, and testimony regarding injuries sustained by police officers, were errors that give rise to a substantial risk of a miscarriage of justice, (5) his attorney rendered ineffective assistance of counsel in failing to move to suppress statements, and (6) an affidavit from his passenger is newly discovered evidence that requires a new trial. We affirm.

1. Motion to suppress evidence. The motion judge did not err in denying the defendant's motion to suppress the drugs and other evidence found in the trunk of the vehicle. The judge's factual findings are fully supported by the evidence and establish that the defendant's consent to look in the trunk, however improvident when viewed in retrospect, was given freely and voluntarily. See Commonwealth v. Blais, 428 Mass. 294, 298–299 (1998).

The judge fully credited the testimony of Cambridge police Officer Stephen Killion that the defendant gave his consent to look inside the trunk freely and voluntarily by saying, “Okay,” and popping the trunk lid. Officer Killion, who had a lawful basis to stop the vehicle for failing to stop for a stop sign, required no legal basis to ask the defendant's permission and did so in a conversational tone. Miranda warnings are not required before asking for the defendant's consent under either the Fourth Amendment to the United States Constitution or under our Declaration of Rights. See ibid.; Commonwealth v. Costa, 65 Mass.App.Ct. 227, 232 (2005).

2. Sufficiency of evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the evidence sufficed to establish that the defendant constructively possessed the cocaine and marijuana found in the trunk. See Commonwealth's brief at pages 20 through 23. Officer Killion observed the defendant and his passenger approach and open the vehicle's trunk, stand next to it, and look inside. The defendant, who was beginning to reach inside, slammed the trunk shut when the passenger alerted him to Killion's presence. When Killion later looked inside the trunk, the pungent and very strong odor of marijuana was immediately noticeable, as it would have been to the defendant earlier. The defendant's actions, combined with his behavior during the stop, including his providing false operator's license information to Killion, his resisting arrest, and his flight from the police upon discovery of the drugs, sufficed to permit the inference that the defendant had the knowledge, ability, and intention to exercise dominion and control over the drugs found within. See Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004).

For substantially the reasons set forth in the Commonwealth's brief at pages 31 through 32, there is no merit to the defendant's challenge to the sufficiency of the evidence relating to the school zone violations. That the defendant was not arrested until outside the school zone does not avail him where the evidence established that the vehicle was within the school zone when Killion first observed the defendant. See Commonwealth v. Alvarez, 413 Mass. 224, 229–230 (1992) (Section 32J “imposes liability only on someone who knows he is dealing in drugs and requires the dealer to proceed at his peril with respect to the proximity of a school”).

3. Exclusion of defendant's statement. The judge did not err in excluding the defendant's hearsay statement that offered his explanation for his looking inside the trunk. The defendant's after-the-fact explanation to Killion does not fall within the state of mind exception to the hearsay rule. See Commonwealth v. Pope, 397 Mass. 275, 281 (1986) (“exception applies only to the declarant's present intent to act, not to past conduct”).

4. Introduction of drugs, certificates of analysis, and testimony regarding injuries. Even if error, the unobjected-to admission of the drugs and certificates of analysis labeled with the defendant's name, does not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Fernandes, 46 Mass.App.Ct. 455, 460–461,S. C., 430 Mass. 517 (1999). The presence of the defendant's name on the drugs and certificates was neither offered nor argued as proof that the defendant constructively possessed the drugs. Rather, it served the obvious purpose of authenticating the drugs as those seized from the vehicle.

We discern no error, much less a substantial risk of a miscarriage of justice, from the admission of evidence regarding injuries sustained by the police when the defendant resisted arrest and fled. See Commonwealth's brief at pages 29 through 31.

5. Ineffective assistance of counsel in failing to move to suppress statements. Defense counsel's failure to move to suppress the defendant's statements to Killion during the motor vehicle stop was not ineffective assistance of counsel. See Commonwealth' brief at pages 12 through 15. See also Commonwealth v. Comita, 441 Mass. 86, 90–91 (2004). Beyond the fact that none of the defendant's statements was introduced at trial, the defendant was not in custody for purposes of Miranda, nor was Killion's request to look in the trunk custodial interrogation. See Commonwealth v. Blais, 428 Mass. at 298–299. See also Berkemer v. McCarty, 468 U.S. 420, 423, 441–442 (1984) (roadside questioning of motorist pulled over in routine traffic stop not custodial interrogation); Howes v. Fields, 132 S.Ct. 1181, 1190 (2012) (reiterating principles of Berkemer v. McCarty, supra ).

6. Mayberry–Lewis affidavit. For substantially the reasons relied upon by the motion judge, who also presided at trial, we agree that the Mayberry–Lewis affidavit was not newly discovered evidence, nor did it cast real doubt on the justice of the convictions.

Judgments affirmed.

Order denying motion for new trial affirmed.