Commonwealth v. Christopher Merced. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-277
COMMONWEALTH
vs.
CHRISTOPHER MERCED.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from the defendant's conviction in the
Essex Superior Court, following a jury trial, of one count of
trafficking in 200 grams or more of cocaine, G. L. c. 94C, § 32E
(b).1 On appeal, the defendant argues that his conviction should
be vacated because (1) Massachusetts State Police troopers
engaged in extensive illegal conduct during the course of an
investigatory traffic stop; (2) the Commonwealth negligently
lost exculpatory video evidence; and (3) an expert witness for
the Commonwealth improperly testified as to the ultimate
question before the jury. We discern no error and affirm the
judgment.
1 The defendant was acquitted of one charge of furnishing a false
name, G. L. c. 268, § 34A.
1. Troopers' conduct.2 The defendant first argues that
State troopers (1) improperly subjected him to a pretextual
stop, (2) illegally questioned him, (3) illegally ordered him to
exit his vehicle, (4) arrested him without probable cause, and
(5) searched his vehicle without probable cause. For these
reasons, the defendant argues that all evidence collected
against him should have been suppressed. After careful review,
we discern no misconduct on the part of the troopers and no
error by the motion judge.
a. Preserved errors. "In reviewing a ruling on a motion
to suppress evidence, we accept the judge's subsidiary findings
of fact absent clear error and leave to the judge the
responsibility of determining the weight and credibility to be
given . . . testimony presented at the motion hearing" (citation
omitted). Commonwealth v. Daveiga, 489 Mass. 342, 346 (2022).
2 In September and October 2017, Massachusetts State Police,
alongside Federal authorities, investigated possible narcotics
distribution in Lawrence. For purposes of the present appeal,
that investigation came to a head on October 18, when Trooper
Tirella watched the defendant enter an apartment and depart
twenty-five minutes later, carrying a rectangular object in a
plastic bag. After following the defendant, Trooper Tirella
contacted Trooper Traister, who was on patrol in a marked
vehicle, and asked him to join the surveillance and, as the
defendant conceded during oral argument, to stop the defendant
if he could lawfully do so. Trooper Traister eventually
conducted a traffic stop, and, alongside other troopers,
discovered bundles weighing a total of 490 grams and containing
cocaine inside a hidden compartment in the defendant's vehicle.
2
"We review independently the application of constitutional
principles to the facts found" (citation omitted). Id."Where a police officer has a reasonable, articulable
suspicion that a person has committed, is committing, or is
about to commit a crime, the officer may stop that person to
conduct a threshold inquiry." Commonwealth v. Bostock, 450
Mass. 616, 619 (2008), citing Terry v. Ohio, 392 U.S. 1, 21-22
(1968). "Where a law enforcement officer performs an
investigatory stop, that officer's level of intrusiveness must
be in proportion to the officer's suspicion or concern for
safety." Commonwealth v. Manha, 479 Mass. 44, 48 (2018). See
Bostock, supra at 622. "If an officer exceeds the scope of an
investigatory stop, the seizure becomes an arrest." Manha,
supra. "Whether a stop is a seizure, requiring reasonable
suspicion, or an arrest, requiring probable cause, depends upon
the circumstances of each case." Id. "The existence of
probable cause depends on whether the facts and circumstances
within the officer's knowledge at the time of making the search
or seizure were sufficient to warrant a prudent man in believing
that the defendant had committed, or was committing, an
offense." Commonwealth v. Hernandez, 473 Mass. 379, 383 (2015),
quoting Bostock, supra at 624.
Here, we discern no impropriety on the part of the State
troopers with respect to the stop, questioning, arrest, or
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search of the defendant or his vehicle. At the outset, we note
that Trooper Traister's stop of the defendant's motor vehicle
was supported by his observation that the defendant committed a
number of motor vehicle infractions, including (1) entering the
left passing lane and traveling within that lane for
approximately one mile, (2) drifting over marked lanes, and (3)
traveling closely behind another vehicle. Any one of these
violations was sufficient to justify a traffic stop. G. L.
c. 89, §§ 4A, 4B; 720 Code Mass. Regs. § 9.06(1), (2), (7)
(2017). See Commonwealth v. Buckley, 478 Mass. 861, 873 (2018)
("[T]he reasonableness of a traffic stop does not depend upon
the particular motivations underlying the stop. . . [L]egal
justification alone, such as an observed traffic violation, is
sufficient"). That Trooper Traister expected to find narcotics
in the vehicle as a result of the information provided to him by
Trooper Tirella is of no moment. Id. See also Commonwealth v.
Santana, 420 Mass. 205, 208-209 (1995) ("Police conduct is to be
judged under a standard of objective reasonableness without
regard to the underlying intent or motivation of the officers
involved" [quotation and citation omitted]).
The defendant further argues that Trooper Traister
improperly ordered him to exit his vehicle during the stop.
Trooper Traister had collected the defendant's driver's license
and was returning to his patrol vehicle when he saw the
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defendant reaching around in the back seat of his vehicle. On
observing this behavior, Trooper Traister immediately ordered
the defendant to exit his vehicle. Coupled with the trooper's
knowledge that the defendant was the subject of a separate
investigation and his earlier observations that the defendant
(1) was nervous and excessively sweaty and (2) had lied about
his point of origin, Trooper Traister was justified in his
concern that the defendant's reaching into the back seat of his
vehicle without any apparent reason for doing so created a
safety risk for both of them.3 See Commonwealth v. Torres-Pagan,
484 Mass. 34, 38 (2020) ("[A]n exit order is justified during a
traffic stop where [1] police are warranted in the belief that
the safety of the officers or others is threatened; [2] police
have reasonable suspicion of criminal activity; or [3] police
are conducting a search of the vehicle on other grounds"). We
discern no impropriety in the trooper's decision to order the
defendant to exit his vehicle.
The defendant next argues that he was arrested without
probable cause when Trooper Traister placed him in the back of
his patrol vehicle prior to discovering contraband. We are not
persuaded. In addition to the suspicious behavior discussed
3 Trooper Traister testified that after he ordered the defendant
to exit the vehicle, he saw a metal baseball bat in the area
where the defendant had been reaching.
5
supra, Trooper Traister had been informed by Trooper Tirella
that the defendant was the subject of a separate investigation.
Trooper Traister's seizure of the defendant was lawful pursuant
to his investigation of the defendant's suspected narcotics
transportation. See Manha, 479 Mass. at 48. This knowledge was
sufficient to justify detaining the defendant while awaiting the
arrival of a K-9 unit.4 Id.Finally, the defendant argues that the search of his
vehicle was without probable cause. This argument is meritless.
The use of a K-9 to detect the odor of narcotics is not a search
requiring probable cause. See Commonwealth v. Feyenord, 445
Mass. 72, 82-83 (2005). Once the K-9 signaled the presence of
narcotics, the troopers had probable cause to search the
4 The defendant argues that the thirty-five minute wait between
the initial stop and the arrival of the K-9 unit further
supports the conclusion that he was arrested without probable
cause. Again, we are not persuaded. "When evaluating whether a
detention during an investigatory stop is of such length that it
should be deemed an arrest, it is appropriate to 'examine
whether the police diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions quickly,
during which time it was necessary to detain the defendant.'"
Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001), quoting
United States v. Sharpe, 470 U.S. 675, 686 (1985). The use of a
K-9 to check for the odor of narcotics was "a less intrusive
alternative to a full search of the vehicle," Sinforoso, supra
at 324, and we discern no impropriety in detaining the defendant
for thirty-five minutes while awaiting the K-9 where he was the
subject of a separate investigation, was behaving in a nervous
manner, reached in the vicinity of a weapon before being removed
from the vehicle, and was repeatedly deceptive about his point
of origin. See id. at 325-326.
6
vehicle. Id. at 83. "Under the automobile exception to the
warrant requirement, the search of a motor vehicle [wa]s
reasonable and permissible." Hernandez, 473 Mass. at 383,
quoting Commonwealth v. Johnson, 461 Mass. 44, 49 (2011).
b. Unpreserved error. For the first time on appeal, the
defendant also argues that troopers engaged in custodial
interrogation without providing him with the warnings required
by Miranda v. Arizona, 384 U.S. 436 (1966). Because the
defendant did not raise this claim in his motion to suppress, we
review for a substantial risk of miscarriage of justice.
Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014);
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no
substantial risk here.
Ordinarily, "[Terry-type vehicle] stops are permissible
where an officer has a reasonable suspicion that a crime has
been, is being, or is about to be committed." Commonwealth v.
Cawthron, 479 Mass. 612, 616 (2018). "At that point, the
interaction is casual, and generally no Miranda warnings are
necessary." Id. "At some point, however, the nature of the
interaction may change, as officers begin to focus on a
particular suspect." Id. "Miranda warnings require that police
officers inform suspects of their right[s] . . . before a
custodial interrogation" (quotation and citation omitted). Id.
at 616-617. "An interview is custodial where 'a reasonable
7
person in the suspect's shoes would experience the environment
in which the interrogation took place as coercive.'" Id. at
617, quoting Commonwealth v. Larkin, 429 Mass. 426, 432 (1999).
The defendant argues that, because of the conversation
between Troopers Tirella and Traister before Trooper Traister
conducted the traffic stop, the defendant was a suspect at the
outset of the stop and should have been given Miranda warnings
immediately. The cursory questioning conducted by troopers
during the traffic stop and now challenged by the defendant did
not rise to the level of custodial interrogation requiring
Miranda warnings. See Cawthron, 479 Mass. at 617-618. However,
even if the troopers' questioning constituted custodial
interrogation and required Miranda warnings that were not
provided, we nevertheless discern no substantial risk of
miscarriage of justice. See Letkowski, 469 Mass. at 617. Aside
from asking for the defendant's license and registration and
casually greeting him by saying "Hey, man, what's going on," the
only questioning in which the troopers engaged was to ask the
defendant about his point of origin. When the defendant
provided an answer inconsistent with the location of the stop,
Trooper Traister repeated the question a single time. Trooper
Cain repeated the question for a third time separately and did
not press when the defendant declined to speak further. That
the troopers asked these questions without providing Miranda
8
warnings did not create a substantial risk of miscarriage of
justice. See id.
2. Video evidence. The defendant further argues that all
indictments should have been dismissed prior to trial because
the Commonwealth lost exculpatory video evidence. In the
alternative, he seeks a new trial in which all evidence obtained
from the video evidence is excluded. During trial, the
defendant raised the issue of the lost evidence by asking for a
jury instruction, which the trial judge provided in a form that
was satisfactory to the defendant at the time. We discern no
error on the part of the trial judge.
During the investigation into the defendant's activities,
Massachusetts State Police placed a "covert" camera on a nearby
utility pole and used it to discretely observe an apartment
building that they suspected was being used for narcotics
distribution. Testimony at trial indicated that the camera was
set to automatically delete unsaved footage after thirty days,
and that, although some images had been saved, portions of the
video were not retained.
As a result, during a discussion about jury instructions,
the defendant requested a spoliation instruction to deal with
the lost evidence. The next day, the judge told counsel that he
intended to give a "missing evidence instruction" pursuant to
his understanding of Commonwealth v. Heath, 89 Mass. App. Ct.
9
328 (2016). He explained that, having considered the analytical
framework described in Heath, he concluded that such an
instruction was the proper remedy. After having provided that
instruction to the defendant for review, the trial judge asked
counsel for the defendant if there was "anything you wish to say
about the rulings I've made and the instructions I've indicated
that I will give in response to the respective requests of
counsel?" Counsel for the defendant responded, inter alia,
"[your instructions] pretty much mirror my thoughts" and "what
you've expressed and what you've done is, quite frankly, what we
could have asked for."
"The defendant did not object to the instruction at trial,
and for that reason, the claims he now raises on appeal are not
preserved. . . . We therefore review to determine whether an
error occurred and, if so, whether that error created a
substantial risk of a miscarriage of justice" (quotation and
citations omitted). Commonwealth v. Garcia, 94 Mass. App. Ct.
91, 98-99 (2018). See Mass. R. Crim. P. 24 (b), 378 Mass. 895(1979).
In determining whether an error occurred, we review for an
abuse of discretion. See, e.g., Commonwealth v. Meas, 467 Mass.
434, 448 (2014). As the Supreme Judicial Court explained in
Meas, supra,10
"A defendant who seeks relief from the loss or destruction
of potentially exculpatory evidence has the initial burden
. . . to establish a reasonable possibility based on
concrete evidence rather than a fertile imagination that
access to the [evidence] would have produced favorable
evidence to his cause. If the defendant meets this initial
burden, then the judge, or the court on appeal, must
proceed to balance the Commonwealth's culpability, the
materiality of the evidence, and the prejudice to the
defendant in order to determine whether the defendant is
entitled to relief" (quotations and citations omitted).
"[Massachusetts] courts have fashioned or upheld various
judicial remedies for the loss of evidence, and we leave it to
the trial judge to determine in the first instance the remedy to
be applied if . . . some sanction is required" (quotations and
citations omitted). Commonwealth v. Kee, 449 Mass. 550, 557
(2007).
Here, after the defendant raised the issue, apparently for
the first time, during the charging conference, the trial judge
found that the defendant met his threshold burden and told the
parties he would take time to research the appropriate course of
action. The next day, he provided proposed jury instructions to
both parties, including an instruction addressing missing
evidence that was intended to resolve the issue.5 The trial
5 With respect to the question of missing evidence, the trial
judge eventually told the jury:
"When the Commonwealth had the ability to gather and
produce particular evidence that would have been helpful to
the jury's fact finding in the case and it failed to do so,
you may infer, but you are not required to do so, that the
evidence that was not produced would have been unfavorable
to the Commonwealth. It may be possible to draw more than
11
judge specifically asked defense counsel if they were satisfied
with the instruction, to which counsel for the defendant
answered affirmatively. Because we discern no error or abuse of
discretion as to the trial judge's remedy, we likewise discern
no risk of miscarriage of justice. See Kee, 449 Mass. at 557.
3. Expert testimony. Finally, the defendant argues that
an expert witness for the Commonwealth impermissibly testified
as to the ultimate question of the defendant's guilt. We are
not persuaded.
The defendant concedes that he did not object to the expert
witness's testimony at trial and "[u]npreserved claims of error
are reviewed only to determine if they created a 'substantial
risk of miscarriage of justice.'" Commonwealth v. Saulnier, 84
Mass. App. Ct. 603, 607 (2013), quoting Commonwealth v. Freeman,
352 Mass. 556, 563-564 (1967).
"A qualified narcotics expert is permitted to offer an
opinion based upon a hypothetical 'grounded in facts in
evidence, as being "consistent with" a drug transaction.'"
Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 842 (2012),
quoting Commonwealth v. MacDonald, 459 Mass. 148, 162 (2011).
Questions based on previously-admitted evidence may be posed to
one inference from the failure to preserve and produce such
evidence, and choosing between any such competing
inferences is exclusively your prerogative."
12
an expert witness to gain his opinion on that evidence, "even if
the witness's reply thereby touches on the ultimate issue of the
case. The only limitation is that the subject matter discussed
be within the witness's field of expertise and that the witness
not directly express his views on the defendant's guilt"
(emphasis added). Commonwealth v. Tanner, 45 Mass. App. Ct.
576, 579 (1998). See also Mass. G. Evid. § 704 (2019).
Ultimately, the issue in such cases is whether the expert
witness opinion testimony is "explanatory. . . . So long as
expert testimony is directed to that purpose, it is admissible"
(emphasis added). Tanner, supra at 581.
Here, Sergeant Conant did not testify as to his conclusion
regarding the ultimate issue, but rather explained, in response
to a hypothetical and based on his expertise, why he thought the
narcotics in the hypothetical were intended for distribution.
See Tanner, 45 Mass. App. Ct. at 579. He offered this
assessment based on the quantity and packaging of the narcotics.
He further discussed characteristics of the apartment used as a
distribution point and explained in detail why these factors led
him to assess the evidence as consistent with the distribution
of narcotics.6 This testimony addressed the hypothetical put
6 He testified, inter alia, that the quantity of cocaine in
question was too great to be intended for personal use, and that
it seemed to be packaged for distribution to mid or low-level
drug dealers. He further testified that the scales and other
13
before him and did not directly address the defendant's guilt.
Without more, we cannot conclude that this testimony gave rise
to a substantial risk of miscarriage of justice. Id.
Judgment affirmed.
By the Court (Sullivan,
Desmond & Singh, JJ.7),
Clerk
Entered: July 5, 2023.
materials were consistent with the packaging of illegal drugs,
and the sparse furnishment and the fortification of the
apartment suggested that it was used as a "stash location."
7 The panelists are listed in order of seniority.
14