Commonwealth v. Myers

• Decision Date: 17 July 2012
• Docket Number: No. 11–P–807.,11–P–807.
• Citation: 82 Mass.App.Ct. 172,971 N.E.2d 815
• Parties: COMMONWEALTH v. Larinso MYERS.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 172

971 N.E.2d 815

COMMONWEALTH

v.Larinso MYERS.

No. 11–P–807.

Appeals Court of Massachusetts, Middlesex.

Argued March 8, 2012.

Decided July 17, 2012.

Jane E. Ross for the defendant.

Fawn D. Balliro Andersen, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, SIKORA, & AGNES, JJ.

SIKORA, J.

After a jury-waived trial on July 13, 2010, a judge of the Superior Court convicted the defendant, Larinso Myers, of possession with intent to distribute cocaine (counts one and two) and possession with intent to distribute oxycodone (count three). The defendant then pleaded guilty as a subsequent offender on each count of the indictment.¹ On appeal, he contends (1) that a Superior Court judge wrongly denied his pretrial motion to suppress evidence collected as a result of a search conducted in the course of a motor vehicle stop; (2) that the Commonwealth presented evidence insufficient to prove beyond a reasonable doubt his intent to distribute cocaine and oxycodone; and (3) that defense counsel's oral stipulation to dispense with the laboratory analyst's testimony before admission in evidence of the drug analysis certificates required confirmation of the defendant's personal waiver by a colloquy with the judge. For the following reasons, we affirm.

Background. 1. The stop and search. Upon the basis of a pretrial evidentiary hearing, the suppression judge made the following findings. At approximately 11:00 p.m. on February 20, 2008, State Trooper Mark Wheeler stopped a black pickup truck driven by the defendant on Route 128 northbound in the town of Wakefield. The passengers included two adult males, an adult female, and two young children. Wheeler had observed the defendant twice swerve the vehicle across traffic lane lines. The defendant's vehicle stopped in a position straddling the breakdown lane and the right traffic lane so that Wheeler could safely approach it only on the passenger side. After Wheeler reached that side, a delay ensued before the window rolled down. The defendant then handed Wheeler his driver's license and registration. Wheeler noticed that the defendant's arm and hand shook during the exchange. After the defendant stated that he was coming from Lowell and going to Brockton, Wheeler's suspicion heightened because a vehicle traveling from Lowell to Brockton would not be located on Route 128 northbound in the vicinity of Wakefield.

Returning to his cruiser, Wheeler checked the defendant's license and registration, and discovered that the defendant was on probation and had a lengthy criminal history, including charges involving drugs and a weapon. During this time, Wheeler observed the defendant moving his body down, to the right, and out of view.

At this point, State Trooper Larry Richardson arrived and offered his assistance to Wheeler. Richardson was in plain clothes and on his way home after completing his shift. The officers decided to return to the defendant's vehicle together. Wheeler and Richardson ordered the defendant to step out of the truck and Wheeler conducted a patfrisk of the defendant. While he did not forcibly resist the patfrisk, the defendant twice deviated from Wheeler's direction to keep his hands on his head. Wheeler discovered two separate wads of money located inside the defendant's front pants' pockets, which the defendant described as $900 of rent money. After the defendant informed the officers that he was cold, Wheeler escorted him to the back seat of his cruiser for shelter. Wheeler did not place the defendant in handcuffs.

Wheeler then opened the front driver's side door of the defendant's vehicle to conduct a search of the driver's seat area. He saw small, clear plastic bags inside the front driver's side door, and noticed that at least one of the bags contained a substance resembling powder cocaine. Wheeler next discovered a small film canister in the dashboard area. He opened it and found fourteen clear plastic bags: ten of the bags appeared to contain “crack” cocaine, three powder cocaine, and one heroin. In addition, Wheeler recovered and opened a zippered bag from underneath the driver's seat which contained a prescription bottle with the label torn off containing, inter alia, eighty-one pills with markings consistent with oxycodone and eighty white oval pills later confirmed to be methadone. He then arrested the defendant. At his booking, officers discovered a small plastic “twist” containing heroin on the defendant's person. Although the defendanthad informed Wheeler that he possessed $900 of rent money, the cash from the defendant's front pants pockets totaled $2,135.

Based on these findings, the motion judge denied the defendant's pretrial motion to suppress all evidence collected as a result of the stop, search, and arrest.

2. Trial. On September 30, 2008, a Middlesex County grand jury returned an indictment charging the defendant with (1) possession of cocaine with intent to distribute (crack) (subsequent offense); (2) possession of cocaine with intent to distribute (powder) (subsequent offense); (3) possession of oxycodone with intent to distribute (subsequent offense); (4) possession of methadone with intent to distribute; and (5) possession of heroin.²

At the subsequent jury-waived trial in Superior Court, the Commonwealth presented two witnesses. Trooper Wheeler recounted the events on the night of the defendant's arrest. Detective Robert Hall of the Everett police department, a police officer since October, 1993, and a narcotics unit investigator for the previous eight years, testified to the modes of packaging and distribution of cocaine, methadone, and oxycodone in Middlesex County during his experience.³ Additionally, the Commonwealth introduced in evidence drug analysis certificates which identified the composition and quantity of the recovered controlled substances. Although the defendant had the right to require the testimony of the analyst who signed the drug analysis certificates,⁴ defense counsel, in response to a question from the judge, orally stipulated in the presence of the defendant that he did not object to the admission of the certificates without the analyst's testimony.⁵ No colloquy between the judge and the defendant took place.

The defendant testified. Defense counsel sought to establish that the defendant possessed the controlled substances for his own personal use. With regard to the large amount of cash recovered at the time of the stop, the defendant testified that he owned rental properties in Brockton and Springfield, and that the cash comprised rent money collected from his tenants. After denying the defendant's motion for a required finding of not guilty, the judge convicted the defendant of all charges.⁶

Discussion. 1. Suppression. We consider first the defendant's argument that the motion judge wrongly denied his pretrial motion to suppress. “In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Stephens, 451 Mass. 370, 381, 885 N.E.2d 785 (2008). We do not review the motion judge's determinations regarding the weight and credibility of the testimony presented at the suppression hearing. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), and cases cited.

The defendant challenges the officers' order to step out of the vehicle and undergo a patfrisk. Recognizing that “it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order,” Commonwealth v. Gonsalves, 429 Mass. 658, 664, 711 N.E.2d 108 (1999), we conclude that the troopers had a reasonable basis to issue the exit order and patfrisk of the defendant here. See Commonwealth v. Bostock, 450 Mass. 616, 619–621, 880 N.E.2d 759 (2008) (explaining that Gonsalves applies to routine traffic stops).

The stop occurred late at night as the result of apparent lane violations. The stopped position of the pickup truck forced Wheeler to approach it on the side away from the driver. The occupants did not lower the window for an interim. The defendant's arm trembled as he handed over his license and registration. He had a lengthy criminal record for crimes involving drugs and a weapon. He moved his body out of view and toward the floor of his vehicle so as to arouse Wheeler's suspicion. This evidence was sufficient to support a rational concern for the officers' safety. See Commonwealth v. Goewey, 452 Mass. 399, 407, 894 N.E.2d 1128 (2008) (exit order and patfrisk justified by defendant's nervousness, furtive movements, and expired item of identification). See also Commonwealth v. Stampley, 437 Mass. 323, 328–330, 771 N.E.2d 784 (2002), and cases cited. Despite the defendant's attempt to characterize the exit order and patfrisk as impermissible responses to the defendant's simple nervousness, Commonwealth v. Hooker, 52 Mass.App.Ct. 683, 688, 755 N.E.2d 791 (2001), the totality of the circumstances supported the cautionary response by the officers.

The justification for the patfrisk entitled Wheeler also to conduct a protective sweep of the vehicle “confined in scope to an intrusion reasonably designed to discover a weapon.” Commonwealth v. Graham, 78 Mass.App.Ct. 127, 129, 935 N.E.2d 370 (2010) (quotation and citations omitted). “A patfrisk may legitimately extend into the interior of an automobile, but police are ‘confined to what is minimally necessary to learn whether the suspect is armed and to disarm him once the weapon is discovered.’ ” Commonwealth v. Cruz–Rivera, 76 Mass.App.Ct. 14, 18, 918 N.E.2d 471 (2009), quoting from Commonwealth v. Stack, 49 Mass.App.Ct. 227, 234, 728 N.E.2d 956 (2000). See Commonwealth v. Almeida, 373 Mass. 266, 272–273, 366 N.E.2d 756 (1977). Although the defendant sat in the...