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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Fernandes,
30 Mass.App.Ct. 335 (1991)
Appeals Court of Massachusetts,
Decided
30 Mass.App.Ct. 336] Mary Ellen Kelleher, Somerville, for
defendant.
Robert C. Thompson, Asst. Dist. Atty., for Com.
Before
[30 Mass.App.Ct. 335] SMITH, FINE and PORADA, JJ.
[30 Mass.App.Ct. 336]
PORADA, Justice.
The
defendant was convicted by a jury in the Superior Court of trafficking in
cocaine of more than 200 grams (G.L. c. 94C, § 32E[b ][3], as appearing in St.1983, c. 571, § 3), unlawful possession
of hashish with intent to distribute (G.L. c. 94C, § 32B[a ] ), unlawful possession of marijuana (G.L. c. 94C, § 34),
unlawful possession of valium (G.L. c. 94C, § 34), and unlawful possession of
ammunition without an identification card (G.L. c. 269, § 10[h ] ).
On appeal he assigns as errors:
(1) the judge's refusal to allow the defendant to offer evidence of the
codefendant's plea colloquy and plea of guilty to the charge of possession of
cocaine with intent to distribute; (2)
the denial of the defendant's motion for disclosure of identity of the
prosecution's informant; (3) the denial
of the defendant's motion to suppress;
(4) the prosecutor's examination of a witness and comments in closing
argument which allegedly reflected impermissibly upon the defendant's right not
to testify and failure to produce evidence;
and (5) the failure of the judge to discharge the jury or give a
requested instruction when a poll of the jury indicated the verdicts were not unanimous. We reject the defendant's claims of error and
affirm the convictions.
We
summarize the pertinent evidence relevant to defendant's claims. The defendant and a codefendant, Cynthia [30 Mass.App.Ct.
337] Leaman,
resided together at
[1]
1. Codefendant's plea of guilty. The defendant attempted to place in evidence
his codefendant's plea colloquy and guilty plea to a lesser charge of
possession of cocaine with intent to distribute as evidence of his
innocence. The defendant claimed that
the codefendant had the intent to distribute the cocaine found on the premises.
The trial judge correctly excluded the
evidence.
While
one person's guilty plea may not be used as substantive evidence of the guilt
of another (see Commonwealth v. Elisha, 3 Gray 460, 461 [1855]; Commonwealth v. Tilley, 327
Mass. 540, 548‑549, 99 N.E.2d 749 [1951]; Commonwealth v. Alicia, 6 Mass.App.Ct. 904, 905, 378 N.E.2d 704 [1978] ), there
appears to be no [30 Mass.App.Ct. 338]
Massachusetts decision which has ruled on whether one person's guilty plea may
be used to prove the innocence of another.
The defendant contends that the colloquy and the plea of his codefendant
were admissible as declarations against penal interest.
For a
statement to be admissible as a declaration against penal interest, the
following three tests must be met:
"[1] [T]he declarant's testimony must be
unavailable; [2] the statement must so
far tend to subject the declarant to criminal
liability 'that a reasonable man in his position would not have made the
statement unless he believed it to be true';
and [3] the statement, if offered to exculpate the accused, must be
corroborated by circumstances clearly indicating its trustworthiness."
Commonwealth v. Drew, 397 Mass. 65, 73, 489 N.E.2d 1233 (1986),
quoting from United States v. Thomas,
571 F.2d 285, 288 (5th Cir.1978), and citing Proposed Mass.R.Evid.
804(b)(3).
While
the first test was clearly met in this case by the parties' stipulation that
the codefendant was unavailable as a witness, the judge could properly have
found that one or both of the other tests had not been satisfied. (FN1) The plea was clearly affected by the
exigencies of the plea bargaining (FN2) and the plea colloquy was something
less than "an unequivocal admission of guilt." (FN3)
Commonwealth v. Alicia, 6 Mass.App.Ct. at
905, 378 N.E.2d 704.
[2] [30 Mass.App.Ct.
339] We conclude further that the
trial judge's decision to exclude the plea colloquy and guilty plea was correct
on the ground of relevancy. Clearly, the
plea colloquy contained irrelevant, immaterial, and incompetent evidence such
as the penalty for the offense. More
importantly, the codefendant's plea did not exonerate the defendant. The codefendant's plea of guilty was not
inconsistent with the defendant's guilt, for more than one person may possess
the same narcotics. Commonwealth v. Dinnall,
366 Mass. 165, 168‑169, 314 N.E.2d 903 (1974). This is particularly true in this case where
there was no evidence that the codefendant had access to the safe where the
quantities of cocaine, hashish, cash, and the account ledger were kept.
[3]
2. Failure to disclose the identity of
the informant. One of the
informants had participated in a controlled buy on the premises within seven
days of the application for the warrant.
The defendant argued that he was entitled to know the identity of that
informant in order to prepare his defense, presumably to find out from whom the
informant had purchased the cocaine.
Disclosure
of the identity of an informant is usually required when the informant is an
active participant in the crime charged, or the only nongovernment
witness to the crime. Commonwealth v. Lugo, 406 Mass. 565, 572,
548 N.E.2d 1263 (1990). Here, the
informant was neither an active participant in the crimes charged, which were
based on the possession of narcotics with intent to distribute, nor the only nongovernment witness.
He was simply a tipster. See Commonwealth v. Brzezinski,
405 Mass. 401, 408, 540 N.E.2d 1325 (1989); Commonwealth v. Mott, 2 Mass.App.Ct. 47, 53, 308 N.E.2d 557 (1974). We perceive no error in the judge's denial of
the request for disclosure.
3. Motion to suppress.
[4]
a. General warrant. The search warrant directed the executing
officer to seize the following property:
[30
Mass.App.Ct. 340]
"Can[nabi]s and all of it's derivat[iv]es. Cocaine, a white
powder and controlled substance as definded [sic ] in M.G.L. C94c.
All related drug paraph[erna]lia for packaging, weighing and distributing same. All monies, records and proceeds of illegal
drug sales. And to include any other
illegally kept controlled drugs or firearms of various descriptions."
The
defendant claimed that the warrant was an impermissible "general
warrant" giving the police unfettered discretion to rummage and search the
defendant's home for anything and everything.
The benchmark of a general warrant is the broad discretion vested in the
executing officer permitting an unguided search or "a general, exploratory
rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443,
467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).
Commonwealth v. Kenneally, 10 Mass.App.Ct. 162, 172‑173, 406 N.E.2d 714 (1980), S.C., 383 Mass. 269, 270, 418 N.E.2d
1224 (1981). Except for the words
"[a]nd to include any other illegally kept
controlled drugs or firearms of various descriptions," we conclude the
language of the warrant was adequately specific to satisfy the requirements of
the Fourth Amendment to the United States Constitution, art. 14 of the
Massachusetts Declaration of Rights, and G.L. c. 276, § 2, that search warrants
describe with particularity the items to be seized. See
Commonwealth v. Taylor, 383 Mass. 272, 275, 418 N.E.2d 1226 (1981); Lo‑Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323, 60 L.Ed.2d 920 (1979).
[5]
[6] In Commonwealth v. Lett, 393 Mass. 141, 144‑146, 470 N.E.2d 110
(1984), the Supreme Judicial Court held that under the Fourth Amendment to the
Constitution of the United States the tainted portion of a search warrant is
severable from the valid portion and items may properly be seized under the
valid portion. As noted infra (see note 4), the affidavit
presented to the magistrate for the issuance of the warrant contained probable
cause to search only for cocaine, drug paraphernalia used in packaging,
weighing, and distributing cocaine, and all money, records, and proceeds of
cocaine sales. Consequently, only that
portion of the warrant which directed the seizure of those specific items was
valid. However,[30 Mass.App.Ct. 341] since the search for
cocaine and all related drug paraphernalia could "include any area, place,
or containerreasonably capable of containing"
any of these items (Commonwealth v. Signorine, 404 Mass. 400, 405, 535 N.E.2d 601 [1989] ),
the other items seized in the search of the premises in plain view were within
the scope and intensity of the search and seizure permitted under the terms of
the valid portion of the warrant. See Commonwealth v. Lett,
supra 393 Mass. at 147‑148, 470 N.E.2d 110. We perceive no error in the judge's denial
of the motion to suppress on the basis of an impermissible general warrant.
[7]
b. Probable cause. The search warrant was supported by an
affidavit, executed on February 28, 1986, of Detective Lloyd of the Marshfield
police. In his affidavit, he alleged
that he had obtained information from two confidential informants, both of whom
had supplied information in the past leading to the execution of a search
warrant, seizure of a quantity of drugs, and the arrest of a named
individual. The affidavit revealed that
in January, 1986, the two confidential informers had advised the affiant that
they had been making purchases of cocaine at 18 Fourth Road in Marshfield for
the past several months; that one of the
informants had made a purchase of cocaine at that address on January 10,
1986; and that within the seven days
preceding the execution of the application for the warrant, one of the
informants had made a controlled buy of cocaine from him at that address. The affiant further disclosed that, during
the six weeks preceding the execution of the application for the warrant, the
affiant had observed on numerous occasions people entering the house through
the front door, stopping for five to ten minutes, and then leaving. (FN4)
The
defendant contends that the affidavit failed to establish the reliability and credibility of the informants. We do not agree. Unlike the affidavit in Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255 (1988),
which contained only a naked assertion that an informant had provided
information leading to the arrest of a named individual, the affidavit here
clearly [30 Mass.App.Ct.
342] spelled out the role played by
the informants in the arrest of the named individuals‑‑the
furnishing of information as to the whereabouts of illegal quantities of drugs,
the seizure of which resulted in the arrest of the named individual. The reliability of the informants could also
be inferred from the independent police observations corroborating in part the
information furnished by the informants.
See Commonwealth v. Robinson,
403 Mass. 163, 166, 526 N.E.2d 778 (1988); Commonwealth v. Kiley,
11 Mass.App.Ct. 939, 940, 416 N.E.2d 980 (1981). Any weakness in the reliability of one of the
informants was repaired by the account of the controlled buy set forth in the
affidavit. Commonwealth v. Benlien,
27 Mass.App.Ct. 834, 838‑839, 544 N.E.2d 865
(1989).
The
defendant argues that the information recited in the affidavit was stale. Probable cause must be established by recited
"facts 'closely related to the time of the iss[uance] of the warrant.' " Commonwealth v. Reddington, 395 Mass. 315, 322, 480 N.E.2d 6 (1985),
quoting from Commonwealth v. Atchue, 393 Mass. 343, 349, 471 N.E.2d 91 (1984). However, where an "affidavit recites
activity indicating protracted or continuous conduct, time is of less
significance." Commonwealth v. Vynorius,
369 Mass. 17, 25, 336 N.E.2d 898 (1975), quoting from Bastida v. Henderson, 487 F.2d 860, 864
(5th Cir.1973). In this case, it was
reasonable to infer the drug distribution was an on‑going activity. As a result, the information contained in the
affidavit was not stale. See Commonwealth v. Smith, 370 Mass. 335,
343, 348 N.E.2d 101 (1976); Commonwealth v. DiStefano,
22 Mass.App.Ct. 535, 540‑541, 495 N.E.2d 328
(1986).
We
conclude that the motion to suppress was properly denied.
[8]
4. Prosecutorial misconduct. A prosecutor may not comment on the failure
of the defendant to produce evidence or to testify. Massachusetts Declaration of Rights, art. 12.
Commonwealth v. Paradiso, 368 Mass. 205,
211‑212, 330 N.E.2d 825 (1975).
During the trial, the prosecutor asked a Commonwealth witness if he had
ever been visited by a handwriting expert witness retained by the
defendant. The witness responded,
"No." The defendant objected
and moved for a mistrial. The [30 Mass.App.Ct.
343] judge sustained the objection,
allowed the defendant's motion to strike both the question and answer, and
instructed the jury that "the burden of proof is always on the government,
the Commonwealth...." The question
was arguably improper because it could be construed as a comment on the failure
of the defendant to produce evidence, but any prejudice to the defendant was
cured by the judge's striking of the evidence, his immediate instruction on the
burden of proof, and his subsequent closing instructions that the jury's
verdict must be based solely on the evidence, that the Commonwealth bears the
burden of proof, and that the defendant had the right not to testify. See
Commonwealth v. Seay, 376 Mass. 735, 745, 383
N.E.2d 828 (1978); Commonwealth v. Pope, 406 Mass. 581, 587‑588,
549 N.E.2d 1120 (1990).
[9]
During the prosecutor's closing argument, the prosecutor stated:
"Now, let me suggest to you that
that is an element [intent to distribute] as to which you necessarily must rely
on inference. How would you know what
the defendant's intention was? Well,
there are two possible ways‑‑if he made statements about what his
intention was, and he didn't, you know that;
or if you could take a snap map of the inside of his mind, and you can't
do that, you know that too."
The prosecutor further stated:
"It's not the Commonwealth that is
asking you to engage in any guesswork, any conjecture, any speculation.... It's the defendant, I suggest to you, who is
asking you to engage in guesswork, and that you should reject."
At
the close of the prosecutor's argument, the defendant objected to these remarks
and asked for a mistrial on the ground that they were comments on the failure
of the defendant to testify. The judge
denied the motion for a mistrial and stated that he would give an instruction
"on the business of guesswork" in his closing instructions. At the close of the court's instructions, the
defendant did not object to any alleged omission in the charge "on the
business [30 Mass.App.Ct.
344] of guesswork" or ask for
any instructions relating to this matter.
Although these remarks could be construed
as a comment on the defendant's failure to take the stand, we do not think it
was necessary to declare a mistrial. The
prosecutor's remarks on intent may be characterized not so much as a comment on
the failure of the defendant to testify but as a comment on what evidence the
jury could consider in determining intent.
Similarly, the prosecutor's remarks about the defendant's asking the
jury to engage in speculation could simply be construed as the prosecutor's
response to the defendant's closing argument that the Commonwealth's case was
based on sheer speculation and guesswork and the real culprit in this case was
the absent codefendant. In light of the
judge's emphatic instructions on burden of proof, that the jury's verdict must
be based on the evidence and not guesswork, and that no inference unfavorable
to the defendant could be drawn by reason of his failure to testify, we hold
that the judge did not abuse his discretion in relying on his instructions to
preclude any potential prejudice. Commonwealth v. Smallwood, 379 Mass. 878,
892‑893, 401 N.E.2d 802 (1980). Commonwealth v. Pope, 406 Mass. at 587‑588,
549 N.E.2d 1120.
[10] [11] 5. Polling the jury. The jury
began their deliberations at 1:35 P.M. on a Friday afternoon. At 4:10 P.M. the jury reported that they had
reached verdicts. After the verdicts
were given, the defendant asked that the jury be polled. (FN5) The judge granted the request. One of the jurors indicated she did not agree
with the verdicts. The defendant then
asked for a mistrial. The judge denied
that request. The defendant then asked
the judge to instruct the jury before continuing their deliberations that
"each juror's views should be listened
[30 Mass.App.Ct. 345] to but that one should not surrender their conscientious belief
merely because there is a majority or to reach a verdict." The judge declined to give this instruction. The judge sent the jury out at 4:20 P.M. to
continue their deliberations with the admonition that their verdicts had to be
unanimous on each indictment. At 4:55
P.M. the jury returned with verdicts on all indictments. The defendant now contends that the judge
erred in refusing to grant a mistrial or give an instruction along the lines
requested by him. We disagree.
Where the one juror stated she did not
agree with the verdicts, it was well within the trial judge's discretion either
to declare a mistrial or to direct the jury to continue their
deliberations. Mass.R.Crim.P.
27(d), 378 Mass. 897 (1979). Commonwealth v. Hebert, 379 Mass. 752,
756, 400 N.E.2d 851 (1980). There was no
abuse of discretion.
We conclude also that the judge did not
err in refusing to give the requested instruction. While a further instruction might have been
helpful, it was not required by the rule.
Further, when to give the Tuey‑ Rodriquez charge (Commonwealth v. Tuey, 8 Cush. 1 [1851]; Commonwealth v. Rodriquez, 364 Mass. 87,
101‑102, 300 N.E.2d 192 [1973] ) is a matter of discretion.
Commonwealth v. Bregnard, 3 Mass.App.Ct. 489, 492 n. 4, 334 N.E.2d 64 (1975).
Commonwealth v. Connors, 13 Mass.App.Ct.
1005, 1005‑1006, 433 N.E.2d 454 (1982).
Because the Tuey‑
Rodriquez charge has a sting to it, it should not be used "prematurely
or without evident cause." Commonwealth v. Rodriquez, 364 Mass. 87,
100, 300 N.E.2d 192 (1973). Commonwealth v. Bregnard, supra
3 Mass.App.Ct. at 492 n. 4, 334 N.E.2d 64. Where the jury had been deliberating for
such a short time (three hours), we do not believe the judge abused his
discretion.
Judgments
affirmed.
FN1.
The trial judge was also the judge who accepted the codefendant's plea on the
first day of the defendant's trial.
FN2.
The codefendant was allowed to plead guilty to the lesser charge of possession
of cocaine with intent to distribute on an agreed recommendation that she
receive a two‑year suspended sentence to the house of correction and the
remaining charges against her (identical to those against the defendant) be
filed on a not guilty plea.
FN3.
We recite just a few of the judge's questions and the codefendant's answers
during the colloquy:
JUDGE: "Did you in fact commit the act that
[the assistant district attorney] described to me?"
CODEFENDANT: "I don't understand."
JUDGE: "Were you present [when] the cocaine was
there?"
CODEFENDANT: "Yes."
JUDGE: "There was some on the bureau, and there
was a cocaine kit in your‑‑somewhere in your pocketbook?"
CODEFENDANT: "I don't know about that."
FN4.
The Commonwealth properly concedes that the affidavit did not contain probable
cause to search for cannabis or firearms.
FN5.
We note that it appears from the record that at the time the defendant made the
request to poll the jurors, the verdicts had been recorded. This would make the defendant's request
untimely, but this argument was not briefed or argued to the court. See Mass.R.Crim.P.
27(d), 378 Mass. 897 (1979).