State of Maine v. Pedro J. Rosario

Citation: 2022 ME 46

Court: Supreme Judicial Court of Maine; August 25, 2022; Maine; State Supreme Court

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Pedro J. Rosario was convicted of aggravated trafficking of scheduled drugs (specifically fentanyl) after a jury trial. He appealed the conviction, challenging the denial of his motion to suppress evidence obtained during a traffic stop, the enforcement of a sequestration order, jury instructions, and the sentencing. The Supreme Judicial Court of Maine affirmed the trial court's judgment.

Rosario was indicted for trafficking six grams or more of fentanyl. His suppression motion, related to evidence from a December 2019 traffic stop, was based on incriminating statements and monitored calls with a confidential informant. During a January 2021 suppression hearing, law enforcement provided testimony, and video and GPS evidence were presented. The trial court denied the motion to suppress and also rejected Rosario's requests for additional findings.

The jury trial, held in June 2021, included testimony from Maine Drug Enforcement Agency agents, a drug chemist, and an individual, Kelvin Mosquea-Guillen, who connected Rosario to the drug transaction. While no illegal drugs were found in the vehicle Rosario was in, evidence from a separate vehicle driven by Mosquea-Guillen included a package containing fentanyl. The jury convicted Rosario, leading to a sentencing hearing on August 27, 2021, where he received a 25-year prison sentence, with 10 years suspended, and a $25,000 fine.

Rosario's subsequent appeal was filed in a timely manner, but his application for a sentence review was denied. The court's findings regarding the suppression motion were supported by competent evidence, and the case was reviewed favorably towards the suppression court's order.

In September 2019, a confidential informant (CI) for the Maine Drug Enforcement Agency (MDEA) reported that an individual named Messon had solicited the CI for drug deals. Agent William Campbell, familiar with the CI's reliability, instructed the CI to contact Messon. Subsequent recorded calls between the CI and Messon discussed illegal drug sales. Messon indicated that his brother would reach out to the CI but did not provide his name. Shortly after, the CI spoke with a man named "Peter," believed to be Pedro Rosario based on Campbell’s investigation and translation of the name.

The CI and Peter continued to communicate about drug transactions, with plans to meet on December 18, 2019, in Houlton, Maine. On December 17, 2019, Campbell obtained a search warrant for GPS data related to Peter's phone, monitored by MDEA Agent Forrest Dudley. On the day of the meeting, Peter informed the CI he was traveling north, and Dudley tracked the phone's location, confirming it was in Houlton around the planned meeting time. However, Peter canceled the transaction upon suspecting law enforcement presence.

At approximately 2:30 p.m., GPS data showed Peter's phone near the Island Falls exit. Maine State Police Sergeant Chadwick Fuller, who was patrolling south on I-95, identified a gray Kia SUV with Massachusetts plates fitting the description of the vehicle linked to Peter. Following the GPS data and the vehicle's out-of-state plates, Fuller initiated a felony stop on the Kia without seeing its occupants.

At 2:32 p.m., the Kia pulled over, and Fuller ordered the driver out and handcuffed him. The passenger, later identified as Rosario, appeared confused but complied with orders from Agent Gaddis, who commanded him in Spanish to exit the vehicle before being handcuffed.

The court determined that law enforcement had both reasonable articulable suspicion and probable cause to stop the Kia, believing it contained an individual who was involved in drug trafficking activities with a confidential informant (CI) in Houlton. The court ruled that there was probable cause to arrest Pedro Rosario based on the belief that the vehicle contained a phone linked to drug transactions, and that Rosario was the individual who had agreed to sell drugs. Rosario accepted that there was reasonable suspicion for the stop but contested the existence of probable cause and claimed he was under de facto arrest when ordered out of the vehicle at gunpoint. The State maintained that evidence supported the court's findings of probable cause prior to the stop and justified the officers' concern for safety. The court's factual findings were reviewed for clear error, while the final suppression determination was reviewed de novo, affirming that warrantless arrests are permissible when officers have probable cause for Class A, B, or C crimes. Probable cause exists when trustworthy information would lead a cautious person to believe a crime was committed, which is supported by the collective knowledge of police rather than solely the arresting officer's personal knowledge. In this case, the Maine Drug Enforcement Agency (MDEA) had monitored communications indicating drug transactions and utilized GPS data from the relevant phone, confirming its location and movements near the stop. Rosario was identified in the vehicle prior to the stop, supporting the court's conclusion that probable cause existed.

The facts establish the presence of probable cause, as demonstrated in prior cases such as Lagasse and Martin. In these precedents, courts affirmed that police investigations sufficiently supported probable cause when they had warrants and credible informants. Specifically, the court found probable cause in the current case due to evidence linking a gray Kia, identified by an informant, to a tracked phone and its proximity to a drug deal. Despite the presence of another vehicle, the court concluded the Kia was more likely to contain the phone based on various supporting details, including the driver's identification and matching license plates. Consequently, law enforcement had probable cause to arrest the occupants of the Kia, and the court denied Rosario's motion to suppress effectively.

Regarding the sequestration issue, Rosario's counsel requested that the witness Campbell be sequestered during a break in his testimony, which the court granted. After both Campbell and another witness testified, the court inquired about the chain of custody. The State later recalled both witnesses to address this issue, prompting an objection from Rosario. He argued that Campbell's sequestration had been violated and that the State did not preserve its right to recall the witnesses, asserting potential prejudice. The court overruled this objection, explaining that recalling the witnesses did not contravene the sequestration order, as their testimony would not revise prior statements but would pertain to their specific roles in maintaining the chain of custody.

Rosario contends that the court erred by finding no violation of the sequestration order, thereby abusing its discretion in not imposing sanctions and allowing witnesses Campbell and Johnson to be recalled. However, the court's discretion in sequestering witnesses is established, with the primary aim of preventing witnesses from tailoring their testimony based on what others have said. The court's determination is reviewed for clear error, and a violation of the sequestration order does not automatically disqualify a witness, as the court retains discretion over their testimony.

In this case, the court found no error as there was no breach of the limited sequestration instruction given during a break in Campbell's testimony. Rosario only requested that Campbell not discuss his testimony until completion, and the court instructed Campbell to remain sequestered from the State’s attorney during the recess, without ordering the sequestration of all witnesses. The court clarified that the sequestration applied only during the break and did not extend beyond Campbell’s testimony on the first day or to other witnesses. Campbell, being the State’s primary representative, was permitted to remain throughout the trial.

Additionally, Rosario argues that the court erred in its jury instructions concerning possession and the lack of a specific unanimity instruction. Since Rosario did not object or request these instructions during the trial, the review is for obvious error, which requires a clear, plain error that affects substantial rights and the integrity of the judicial proceedings. The court defined possession as having control over an item long enough to be aware of it and terminate that possession, which Rosario claims lacks legal support and could mislead the jury regarding the statutory defense of terminating complicity as an accomplice.

The court found no obvious error in Rosario's case, where he was charged with aggravated trafficking in fentanyl powder under 17-A M.R.S. 1105-A(1)(M). The statute defined trafficking to include selling, trading, or possessing fentanyl with intent, as well as possessing 2 grams or more of fentanyl powder or 90 or more individual containers. Relevant to the case was whether Rosario possessed fentanyl powder. A 2021 amendment removed a specific possession definition, but trafficking remains aggravated if involving 6 grams or more or 270 or more individual containers.

Possession can be deemed involuntary if the individual was unaware of their control long enough to terminate it. The jury instructions on possession reflected statutory language accurately, clarifying the time required for possession to be considered voluntary, and did not imply guilt for terminating possession. The jury was also instructed on the termination of complicity as per 17-A M.R.S. 57(5)(C).

Rosario argued that the court erred by not providing a specific unanimity instruction, which requires jurors to agree unanimously on a single incident to support a guilty verdict. However, the court determined that the evidence presented indicated a single continuous incident on December 18, 2019, rather than multiple crimes, negating the need for a specific unanimity instruction. Thus, the court did not commit obvious error in this aspect either.

Rosario submitted a sentencing memorandum before his hearing, indicating he is not a U.S. citizen and will face deportation after his sentence. He argued for a fifteen-year sentence with four years suspended. The State sought a twenty-five-year sentence and a $25,000 fine, citing the seriousness of Rosario’s fentanyl possession and several aggravating factors including prior convictions and commercial motive. On August 27, 2021, the court sentenced Rosario to twenty-five years in prison, suspending ten years and imposing a four-year probation, along with the fine. Rosario claims his due process rights were violated because the court based the sentence on unnotified factors not supported by sufficient evidence, including his illegal status, possession of an additional package of fentanyl, and commercial motive. He also argues that there were no findings to support the fine and that it could be excessive under the Eighth Amendment.

The Sentence Review Panel denied his application for appeal, leading to a direct appeal focusing solely on the legality of the sentence. The court noted that it has broad discretion in sentencing and is not limited to trial evidence as long as the information is reliable and relevant. The review concluded that the sentence was legal for several reasons: there was no requirement for a presentence investigation or prior notice from the State; the court did not rely on Rosario's immigration status or the second package of fentanyl in its decision; trial evidence supported the characterization of Rosario's actions as commercially motivated; and his counsel had the opportunity to contest the State's claims.

The court affirmed the sentencing decision, stating that the fine imposed is half of the maximum authorized by statute (17-A M.R.S. 1704(1) (2022)) and is not excessive. The court referenced the standard for determining unconstitutionally disproportionate or cruel and unusual punishment, indicating that only extreme punishments could potentially violate this standard. The court found no illegality in the sentence or its procedural aspects. It ruled that law enforcement had probable cause to stop the vehicle and arrest the occupants, thus denying Rosario's motion to suppress evidence. Additionally, the court upheld its jury instructions and the sentencing process. The judgment was affirmed by the 8th Prosecutorial District in Houlton, with representation for both the appellant and the appellee noted.