Commonwealth v. Christopher Merced.

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.

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"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.

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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.

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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

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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

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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,

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"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

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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."

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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

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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.

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