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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Fiore, 9 Mass.App.Ct.
618 (1980)
Appeals Court of Massachusetts, Hampden.
Argued
Decided
Willie J. Davis,
[9 Mass.App.Ct.
619] John T. McDonough, Asst. Dist.
Atty., for the Commonwealth.
Before [9
Mass.App.Ct. 618]
GOODMAN, ROSE and GREANEY, JJ.
[9 Mass.App.Ct. 619]
GOODMAN, Justice.
The
defendant appeals (G.L. c. 278, ss
33A‑33G) from convictions on six indictments charging possession of
controlled substances with intent to distribute. He assigns as error and argues in the
following order (1) the denial of his motion to suppress evidence which, he
contends, resulted from an illegal search and seizure; (2) the trial judge's
refusal to ask certain questions of prospective jurors; (3) the denial of his
motions for directed verdicts; and (4) the admission of certain testimony at
trial. (Other assignments of error not
argued are deemed waived.)
1. Motion
to suppress. The following background
facts appear primarily from the judge's findings on the motion to suppress,
supplemented by the evidence introduced at the hearing on the motion. At about 10:00 P.M., on December 23, 1977, an
officer of the East Longmeadow police department (Getty) spoke over the
telephone to a State police trooper (Cauley) and told
him that he (Getty) had received information "from an informant that there
was a possibility of narcotics, guns and a house break at a location near a
trailer park, a junk yard and a power line that he thought to be either in the
Palmer or Brimfield area."
([FN1]) Later that evening, Cauley, together with members of the State Police and the
chief of the Brimfield police department, proceeded "to a vicinity near a
power line, near a junk yard" in the town of Brimfield (see note 1, supra
). ([FN2]) There they came upon a cottage, the outside
door of which was torn off. Cauley entered through the doorway and found the inner door
to be ajar. He looked to see if anyone
was inside but found no one. In the
cottage, Cauley noticed a hole in the floor and shone
his flashlight into the hole, where he saw and smelled a quantity of
hashish. The next day he applied for and
received a warrant to search the Brimfield cottage; [9 Mass.App.Ct. 620] the police seized cocaine and a large quantity of hashish,
various bills, notebooks, papers and miscellaneous paraphernalia. As a result, Cauley
then obtained a warrant to search the defendant's East Longmeadow residence;
that search resulted in the seizure of more narcotics, as well as keys to the
locks on the cellar door of the cottage.
([FN3])
The
defendant contends that Cauley's observation of the
hashish in the Brimfield cottage is the fruit of an illegal entry, and that
this is manifest (a) on the face of the affidavit in support of the search
warrant (Commonwealth v. Monosson, 351 Mass. 327, 221
N.E.2d 220 (1966)) and (b) from the evidence at the hearing on the motion to
suppress. We do not agree.
(1) (a) Cauley's affidavit recites that, as a result of information
from Getty concerning a breaking and entering in a dwelling house in Brimfield,
Cauley and other officers went to that dwelling house
and found that "there had been in fact a break committed there." They "entered the dwelling house . .
. to ascertain who the owner
was." The affidavit further sets
out that while in the cottage Cauley noticed "a
quantity of . . . hashish."
It seems
clear to us that a house break without more as set out in the affidavit raises
the possibility of danger to an occupant
and of the continued presence of an
intruder and indicates the need to secure the premises. In such circumstances "(t)he right of
the police to enter and investigate in an emergency without the accompanying
intent to either search or arrest is inherent in the very nature of their
duties as peace officers." United
States v. Barone, 330 F.2d 543, 545 (2d Cir.), cert.
denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053
(1964); Warden v. Hayden, 387 U.S. 294, 298‑300, 87 S.Ct.
1642, 1645‑46, 18 L.Ed.2d 782 (1967); Michigan v. Tyler, 436 U.S. 499,
509‑510, 98 S.Ct. 1942, 1950‑51, 56
L.Ed.2d 486 (1978); Commonwealth v. Thomas, 358 Mass. 771, 774 n. 2, 267 N.E.2d
489 (1971); Commonwealth v. Kingsbury, ‑‑‑ Mass.App. ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FNA]), 385 N.E.2d 1020, id., ‑‑‑
Mass. ‑‑‑ ([FNB]), 393 N.E.2d 391
(1979). See Marshall v. United States,
422 F.2d 185, 187‑189 (5th Cir. 1970); United States v. Dunavan,[9 Mass.App.Ct. 621] 485 F.2d 201, 204‑205 (6th Cir.
1973). The defendant points out,
however, that the entrance in this case was stated in the affidavit to be in
order "to ascertain who the owner was." We do not read the affidavit so restrictively
as to exclude the normal motivations in entering a dwelling when the police
discover a break. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct.
741, 745, 13 L.Ed.2d 684 (1965). ([FN4])
(2) (b)
The defendant further contends that Cauley's
observation of the hashish in the cottage was the fruit of an illegal entry
made for the purpose of looking for narcotics, rather than the inadvertent
result of the investigation of a breaking and entering. See Commonwealth v. Forde,
367 Mass. 798, 807‑808, 329 N.E.2d 717 (1975), citing Wong Sun v. United
States, 371 U.S. 471, 484‑488, 83 S.Ct. 407,
415‑17, 9 L.Ed.2d 441 (1963); Commonwealth v. Penta,
361 Mass. 894, 895, 282 N.E.2d 674 (1972), and Commonwealth v. Hall, 36(6)
Mass. 790, 795, 323 N.E.2d 319 (1975).
The issue, otherwise put, is the applicability to Cauley's
observation of "(t)he plain view doctrine (which) requires prior police
justification for an intrusion in the course of which an officer inadvertently
comes across incriminating evidence. The
'prior justification' language is merely another way of articulating the
necessity for 'some . . . legitimate
reason for being present unconnected with a search directed against (an)
accused.' Coolidge v. New Hampshire (403
U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564
(1971))." Commonwealth v. Walker,
370 Mass. 548, 557, 350 N.Ed.2d 678, 686 (1976).
On the
record in this case we believe the entry was justified. To be sure, Cauley
testified that he came upon the cottage in the course of an investigation of
the possibility of narcotics in a house which might have been broken into and
that Getty's information, on which he proceeded, came from an informant for
whose reliability neither Cauley nor [9 Mass.App.Ct.
622] Getty could vouch. ([FN5])
In view of the uncertainty of the information, the trial judge could, as
he did, believe Cauley's testimony that when he came
upon the cottage from which the door had been torn, he did not know that this
was the cottage to which Getty's informant had referred. From the testimony, Cauley
had no physical description of or any other information as to the specific
cottage involved; there are "numerous cottages in the area." Cauley was
obviously looking for the cottage which he ultimately entered, but it was
just happenstance that he went in the direction of that cottage. ([FN6])
Further, there were tracks in the snow leading to the cottage, and there
was an automobile parked in the yard.
In the
circumstances the possibility that this was the cottage where narcotics might
be found did not cancel out the alternate possibility that someone in the
cottage was in need of help or that an intruder was in the dwelling. Cauley was not
obliged to treat the cottage as somehow an outlaw without the right to police
protection and aid because of the possibility that there might be narcotics in
it. That mere possibility did not
require him to depart from the normal procedure that "if we came upon a
break we go in and ascertain if anybody who had broken in was still
inside." Accordingly, the motion to
suppress was properly denied.
(3) 2. Voir dire of prospective jurors. Of the seventeen questions which defense counsel
proposed that the trial judge ask [9
Mass.App.Ct. 623]
prospective jurors, the judge asked six.
In view of the representations of counsel that there had been "a
lot of publicity" when the case began a little less than a year
previously, the judge agreed to ask defense counsel's proposed question
addressed to the possible exposure of the venire to such publicity. ([FN7])
He thus complied with G.L. c. 234, s 28, as
amended through St.1975, c. 335, which requires the examination of prospective
jurors "if it appears that, as a result of the . . . possible exposure to potentially prejudicial
material . . . the juror may not stand
indifferent." We see no reason to
interfere with the judgment of the trial judge in refusing to ask additional
questions dealing with such general topics as a defendant's right not to
testify and the presumption of innocence.
The trial judge apparently saw no sufficient relation between whatever
"extraneous considerations" the publicity might have engendered and
those questions, which arise at every trial and which are, as the trial judge
indicated, dealt with in the charge to the jury. The trial judge necessarily has a large
measure of discretion to decide just how to frame the questions in applying the
statute. See Commonwealth v. Campbell, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNC]), 393 N.E.2d 820 (1979); Commonwealth v.
Jones, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FND]),
399 N.E.2d 1087, further appellate review granted, ‑‑‑ Mass. ‑‑‑
(1980). ([FNE])
(4) 3.
Motions for directed verdict. Contrary
to the defendant's contention, there was sufficient evidence when the defendant
moved for a directed verdict at the end of the Commonwealth's case from which
the jury could find beyond a reasonable doubt that the defendant had dominion
and control over the narcotics seized in the Brimfield cottage. Three trunks of marihuana were found in the
cellar, the windows [9 Mass.App.Ct. 624]
of which were welded shut with metal plate and the heavy door to which was
secured by two dead‑bolt Yale locks. The keys to these locks were in the possession
of the defendant when the police went to his East Longmeadow home. Further, in his bedroom in East Longmeadow
they found books of account with reference to sales of marihuana and under his
bed three jars, the numbers on which correlated with numbers in notebooks found
in the Brimfield cottage. The search of
the Brimfield cottage also yielded a number of papers and bills addressed to
"Mr. Richard Fiore, 26 Smith Avenue, East Longmeadow," where Richard
Fiore lived and a number addressed to Richard Fiore with directions to the
Brimfield cottage. We need not analyze
each piece of evidence; together, we are convinced, they presented a jury
question as to the control and possession of the narcotics in the Brimfield
cottage. See Commonwealth v. Dinnall, 366 Mass. 165, 169, 314 N.E.2d 903 (1974);
Commonwealth v. Rugaber, 369 Mass. 765, 769‑770,
343 N.E.2d 865 (1976); Commonwealth v. Xiarhos, 2 Mass.App. 225, 231‑232, 310 N.E.2d 616 (1974);
Commonwealth v. Lee, 2 Mass.App. 700, 702‑705,
319 N.E.2d 732 (1974).
(5) 4.
Admission of evidence. Cauley's expert testimony as to the "street
value" of cocaine and hashish was admissible. The trial judge was well within his
discretion in qualifying Cauley as an expert (Commonwealth
v. Boyd, 367 Mass. 169, 182, 326 N.E.2d 320 (1975)) and the testimony was
obviously relevant to the defendant's intent to distribute. See Commonwealth v. Baltrop,
2 Mass.App. 819, 820, 309 N.E.2d 214 (1974);
Commonwealth v. Rivera, ‑‑‑ Mass.App.
‑‑‑ ([FNF]), 382 N.E.2d 210
(1978). See also cases cited in Opinion
of the Justices, ‑‑‑ Mass. ‑‑‑, ‑‑‑
n. 4 ([FNG]), 393 N.E.2d 313 (1979). We find unconvincing the defendant's argument
in his brief based on points made on cross‑examination going to the weight
of the testimony. His further objection
to the evidence of the correlation between the numbers on the jars found in the
defendant's East Longmeadow home and the notations in notebooks in the
Brimfield cottage is insubstantial.
Judgments
affirmed.
(FN1.) The quotation, included in the judge's
findings, is taken from Cauley's testimony at the
hearing.
(FN2.)
There was also a trailer park in the area.
(FN3.)
No separate issue is raised with reference to the East Longmeadow warrant.
(FNA.) Mass.App.Ct.Adv.Sh. (1979) 180, 181‑182.
(FNB.) Mass.Adv.Sh. (1979) 2149.
(FN4.)
The defendant also complains that Cauley omitted from
his affidavit any reference to the additional information received from Getty
about the possibility that narcotics might be found in the cottage. But in our view, as explained in part (b)
infra, this possibility did not make unlawful the entry into the cottage;
therefore its inclusion in the affidavit would have been immaterial. See Franks v. Delaware, 438 U.S. 154, 161‑164,
98 S.Ct. 2674, 2679‑81, 57 L.Ed.2d 667 (1978);
Commonwealth v. Reynolds, 374 Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (Mass.Adv.Sh. (1977) 2817, 2822‑2824), 370 N.E.2d
1375 (1977).
(FN5.)
Cauley testified that on questioning Getty he was
told that Getty had never used this informant before and that when Cauley "asked him what did he base his reliability on
. . . he told me that the informant was
very scared and he tended to believe him."
Getty would not tell Cauley where the
informant got the information.
(FN6.)
He testified: "I went through a trailer park where there was numerous
places. There were some up behind it and
I went up a dirt road. I b(ore) to the
right. You could have b(orne) to the left and I think the(re) are cottages up in
there. I came upon a cottage." He further testified: "I came upon a
dwelling that was obviously broken into.
I did not know . . . if it was
the same place that Mr. Getty had talked to me about . . . . I went in to ascertain if anybody was inside
there who had broken in, to secure the property for the owner and to identify
the owner, if at all possible."
(FN7.)
The proposed question was: "Do you have any knowledge of this case gained
from any source including but not limited to radio, television, newspapers or
in conversation with other prospective jurors?
a. If so,
have you formed an opinion about the case?
b.
If you have not formed an opinion but have knowledge of the case, can you
decide the issues solely on the evidence presented at trial?"
He
also asked as proposed by defense counsel: "Do you have any special
feelings about narcotics which will make it difficult for you to decide this
case upon the evidence alone?"
(FNC.) Mass.Adv.Sh. (1979)
2055, 2074‑2076.
(FND.) Mass.App.Ct.Adv.Sh.
(1980) 153, 163‑165.
(FNE.) Mass.Adv.Sh. (1980)
917.
(FNF.) Mass.App.Ct.Adv.Sh.
(1978) 1129.
(FNG.) Mass.Adv.Sh. (1979)
1781, 1788 n. 4.