Com. v. Nutile

• Decision Date: 12 February 1992
• Docket Number: No. 90-P-868,90-P-868
• Parties: COMMONWEALTH v. Paul E. NUTILE, Jr.
• Court: Appeals Court of Massachusetts

Page 547

582 N.E.2d 547

31 Mass.App.Ct. 614

COMMONWEALTH v. Paul E. NUTILE, Jr.

No. 90-P-868.

Appeals Court of Massachusetts,

Middlesex.

Argued April 19, 1991.

Decided Dec. 4, 1991.

Further AppellateReview Denied

Feb. 12, 1992.

James M. Smith, Springfield, for defendant.

Patricia M. Darrigo, Asst. Dist. Atty. (Stephen Hoctor, Special Asst. Dist. Atty., with her) for Com.

Before 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. ¹

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 August 5, 1988, Michael Benson, a plainclothes narcotics detective with the Waltham police department, received information from a number of sources that Joseph Paolino was trafficking in cocaine and that he was known to carry a gun. Neither Benson nor his partner, Timothy McDaniel, knew Paolino. About 8:00 P.M., that date, the officers, while driving in their unmarked cruiser, decided to begin a surveillance of Paolino. They drove to an address that had been given them, 162 Prospect Street.

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 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 scale, many syringes, a bottle of "crack-type cocaine," and two clear plastic bags of cocaine.

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).

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 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). ² After cocaine and other evidence of drug transactions were found in the car, the defendant was arrested.

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.

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...