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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
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Germain, 396
Supreme Judicial Court of Massachusetts,
Argued
Decided
[396
Lynn Morrill Turcotte,
Asst. Dist. Atty., for Com.
Before [396
[396
After
trial by jury, the defendant, John Edward Germain,
was convicted of armed robbery while masked, see G.L.
c. 265, § 17 (1984 ed.) (four
complaints), and stealing by confining or putting in fear, see G.L. c. 265,§ 21 (1984 ed.)
(four complaints). (FN1) The defendant was sentenced to the
Massachusetts Correctional Institution at Cedar Junction for concurrent terms
of not less than twelve nor more than twenty years on these convictions. On appeal the defendant alleges error in the
denial of his motion to suppress, and his motion for a required finding of not
guilty. He also alleges error in the
prosecutor's opening statements. We
allowed the defendant's application for direct appellate review. We affirm.
We
summarize the facts of the robbery. At
approximately
[396 Mass. 415] The robber carried a small, gray‑colored handgun with rust
spots on the top of the barrel which he used to force the store manager
downstairs to the cash office. There he
instructed the manager and four other employees to put white money bags into a
cardboard box. (FN2) After the employees followed his orders, he
directed them to an office where the safe was located; there, he emptied the safe of petty cash
funds and banded bills. The total amount
taken was $11,000 in cash and various tickets and receipts valued at
approximately $5,000. The robber
left. On his way out, he pulled a
telephone cord from the wall. A few
minutes later, the employees left the office and called the police. The police arrived at approximately 10:30
A.M. and obtained descriptions of the robber and the details of the robbery.
On April 7
a Worcester police officer received a telephone tip from an anonymous person
stating that the defendant was the person who robbed the Zayre
store. The officer made an investigation
and on April 8 sought and obtained a search warrant. The search of the defendant's apartment
yielded several items which were similar to those used by the robber. (FN3)
[1] 1. The motion to suppress. (FN4)
Prior to trial the defendant moved to suppress the items taken from his
apartment because the affidavit in support of the warrant failed to meet the
"two‑pronged test" of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), [396 Mass. 416] and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See
Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). (FN5)
The defendant asserts that the affidavit barely passes the basis of
knowledge test and totally fails the veracity test. We conclude that the supporting affidavit
justified the issuance of the search warrant.
The
affidavit sets forth the facts of the robbery and the description of the
robber. See supra. The affidavit also
describes the items worn by the robber as follows: a brown knit hat, a suede mask, brown work
gloves, brown waistline vinyl jacket, blue "jox"
tennis shoes with white stripes on the sides.
The affidavit describes the gun carried by the robber as a handgun, gray
in color with numerous spots of rust on the top of the barrel.
The
affidavit further states that an anonymous informant called a Worcester police
officer on April 7, 1980, and told the officer that John Germain
was living in Worcester at 9 Barclay Street, first floor; that Germain had
committed a robbery at the Zayre department
store; and that he was involved in two
other armed robberies, at the Professional Pharmacy on Pleasant Street on the
sixth and twenty‑fourth of March, 1980.
The informant said that he had seen in a brown cardboard box in the
first floor apartment at 9 Barclay Street numerous white bank deposit bags
containing a large amount of currency, a gray‑colored handgun with rust
stains on the top of the barrel, and a brown suede mask.
The affidavit
states that the police spoke with one Amy Antinarella,
the owner of the building at 9 Barclay St.
She told police that on April 5, 1980, she rented the first floor
apartment to the defendant for two months commencing April 1, 1980. The defendant paid $250 in cash. He paid with eight [396 Mass. 417] twenty‑dollar
bills and seven ten‑dollar bills.
(FN6) Antinarella
told police that on April 5, 1980, she had observed a large quantity of
currency in the defendant's wallet. She
also told the police she saw the defendant give his girl friend four hundred
fifty dollars in cash to purchase dining room furniture from Antinarella's daughter.
The affidavit states that a records check by the police disclosed that
the defendant had an extensive criminal record including possession of a .32
caliber revolver and that on October 23, 1978, the defendant had been sentenced
to nine months in a house of correction for possession of burglarious tools,
breaking and entering in the daytime, and stealing controlled substances
(sixteen counts).
"[T]o
establish probable cause, an affidavit based on information from an unnamed
informant must provide the magistrate with facts showing some of the underlying
circumstances leading to the informant's knowledge, as well as his reliability.
Commonwealth v. Upton, supra, [394 Mass.] at 375 [476 N.E.2d
548]. See Aguilar v. Texas, supra, [378 U.S.] at 114 [84 S.Ct.
at 1514]. If the informant's tip fails
to satisfy one of these portions of the
Aguilar test, independent corroboration in the affidavit may supplement the
informant's tip to support a finding of probable cause. Commonwealth v. Upton, supra. See Spinelli v. United States, supra [393 U.S.] at 415 [89 S.Ct. at 588]." Commonwealth v. Saleh,
396 Mass. 406, 486 N.E.2d 706 (1985).
"Each prong of the Aguilar‑Spinelli test‑‑the basis of knowledge and
the veracity of the informant‑‑presents an independently important
consideration." Commonwealth v. Upton, 394 Mass. 363, 375‑376,
476 N.E.2d 548 (1985).
The
defendant argues that there is no basis for concluding that the information
provided by the informant is reliable.
The defendant contends that the facts that he had cash, that he rented
an apartment shortly after the robbery and paid the rent in cash, and that he
made purchases with cash are consistent with innocence and these facts do not
provide any reason to believe the informant's information was reliable. We do not agree.
[396 Mass. 418] [2] The second prong of the
Aguilar‑Spinelli standard may be satisfied
by showing either the informant to be credible or his information to be
otherwise reliable. Aguilar v. Texas, supra at 114. The police investigated the informant's
information and corroborated the fact that on April 5, 1980, shortly after the
robbery, the defendant was in Worcester, that he rented the apartment on the
first floor of 9 Barclay Street (the address supplied by the informant), that
he had large amounts of currency, and that he was making large cash
purchases. Last, the police learned that
the defendant had a record of similar crimes (i.e., crimes of theft, possession
of a .32 caliber gun, possession of burglarious tools). (FN7)
Further, the informant's detailed description of the gun, clothing, and
other items matched the detailed descriptions of the same items given to police
by the victims and included in the affidavit.
See Draper v. United States,
358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327
(1959). These facts together with the
informant's observations support the magistrate's determination of probable
cause.
[3] An
affidavit for a search warrant also "must be tested and interpreted by
magistrates and courts in a commonsense and realistic fashion.... [T]he resolution of doubtful or marginal
cases in this area should be largely determined by the preference to be
accorded to warrants." United States v. Ventresca,
380 U.S. 102, 108‑109, 85 S.Ct. 741, 745‑746,
13 L.Ed.2d 684 (1965). See Commonwealth v. Stewart, 358 Mass. 747,
750, 267 N.E.2d 213 (1971). The motion
to suppress was correctly denied.
[4] 2. Denial of the defendant's motion for a
required finding of not guilty. The
defendant moved for a required finding of
[396 Mass. 419] not guilty and
the judge denied the motion. The
defendant argues the circumstantial evidence was insufficient to support a
finding of guilty beyond a reasonable doubt.
The defendant contends that the evidence linking him with the robbery is
too tenuous, since there is no identification of the robber, and too speculative,
because others had access to the apartment where the items from the robbery
were found. (FN8) "It is not necessary to prove that no
one other than the accused could have done the act.... That another might have had the opportunity
to do the act goes only to the weight of the evidence."
Commonwealth v. Lussier, 364 Mass. 414,
421, 305 N.E.2d 499 (1973), quoting
Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968). The weight of the evidence is a jury
question. See Commonwealth v. Swartz, 343 Mass. 709, 713, 180 N.E.2d 685 (1962).
3. The prosecutor's opening. The defendant contends that the prosecutor's
opening statement was improper because he referred to a composite drawing (FN9)
of the defendant which the judge later excluded from the evidence. (FN10)
Because defense counsel failed to object to these statements or to
request a curative instruction, we limit our review to a determination of
whether there is a substantial risk of a miscarriage of justice.
Commonwealth v. Campbell, 394 Mass. 77, 88, 474 N.E.2d 1062 (1985).
Commonwealth v. McGahee, 393 Mass. 743,
749, 473 N.E.2d 1077 (1985).
[5][6] As
a general rule counsel is free to state in his opening anything that he expects
to be able to prove. See Commonwealth v. Hartford, 346 Mass.
482, 486, 194 N.E.2d 401 (1963); Commonwealth v. Clark, 292
Mass. 409, 410, 198 N.E. 641 (1935). The
record does not support [396 Mass.
420] the defendant's assertion that
the opening was made in bad faith. The
reference to the composite was not improper.
See Commonwealth v. Weichell, 390 Mass. 62, 73, 453 N.E.2d 1038 (1983),
cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79
L.Ed.2d 698 (1984). Before the
prosecutor's opening and again before the closing arguments, the judge gave
strong instructions that the statements of counsel were not evidence. We conclude that the prosecutor's opening did
not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
(FN1.) The defendant also was convicted of
unlawful possession of a firearm (two complaints), see G.L.
c. 269, § 10 (a) (1984 ed.), and unlawful possession of ammunition (one
complaint), see G.L. c. 140, § 129C, as amended
through St. 1978, c. 551, § 1. These
three convictions were placed on file.
The defendant asserts that the record does not disclose his personal
affirmative agreement to have these convictions placed on file, and therefore
we should reverse them as well as the convictions on which sentences were
imposed. Because we affirm the
convictions on which sentences were imposed, we do not address this issue. See
Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).
(FN2.)
The robber took the following items:
$11,000 in cash (mostly tens and twenties), Zayre
"scratch game" tickets with "# 7 week" in the upper left
hand corner, charge slips, cash register tapes, white bank deposit bags, and a
cardboard box.
(FN3.)
The police seized the following items from the defendant's apartment: two automatic pistols, one of which was gray
in color with rust spots on the top portion of the barrel (both .32
caliber); two brown suede face
masks; two pairs of brown cloth
gloves; one brown and orange knitted
hat; one pair of sneakers with
stripes; one army‑style green
duffle bag; one brown velour v‑neck
sweater; one box of 30 rounds of
Remington .32 caliber ammunition; and a
cartridge magazine with .32 caliber ammunition.
(FN4.)
The record indicates that there was an evidentiary hearing on the motion to
suppress. We do not consider that
evidence because the search was conducted pursuant to a search warrant. Where a warrant is used, the judge may
consider only the affidavit or affidavits presented to the magistrate. See
Commonwealth v. Monosson, 351 Mass. 327, 330, 221
N.E.2d 220 (1966).
(FN5.)
The Commonwealth suggests that there is an issue as to whether we should apply Commonwealth v. Upton, 394 Mass. 363,
476 N.E.2d 548 (1985). We do not
agree. In Upton, we held that, under art. 14 of the Massachusetts
Declaration of Rights, the test for determining probable cause in cases involving
unnamed informants incorporates the principles developed under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410,
89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Because
Upton did not announce a new standard but rather retained the traditional
standard for testing the sufficiency of an affidavit, it applies to this
case. See Commonwealth v. Breese, 389 Mass. 540, 548‑550, 451 N.E.2d
413 (1983).
(FN6.)
The record does not disclose the denominations of the bills for the remaining
twenty dollars.
(FN7.)
The record of prior convictions is used as a factor because the convictions
were recent, and the crimes sufficiently similar to be relevant on the
determination of probable cause. See United States v. Harris, 403 U.S. 573,
583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). In this case the record showed a pattern of
conduct from which the inference may be drawn that the defendant was not averse
to acquiring property by illegal means and to possessing an illegal weapon (.32
caliber gun). Although these convictions
may not be admissible at trial, they may be used to establish probable
cause. "[B]efore
the trial we deal only with probabilities that are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act." United States v. Harris, supra at 582‑583,
91 S.Ct. at 2081, quoting Brinegar v. United States, 338 U.S. 160,
175, 69 S.Ct. 1302, 1310, 93 L.Ed.
1879 (1949).
(FN8.)
The defendant rented the apartment on the fifth of April for two months
commencing April 1. On April 8 the
apartment was unoccupied. From April 5
through April 8 the defendant, his girl friend, and various members of his girl
friend's family cleaned and painted the apartment.
(FN9.)
On the day of the robbery, an employee of Zayre who
was not a victim of the crime saw a man answering the defendant's description
leaving the main area of the store right after the robbery. The employee assisted the police in making a
composite but was not available at the time of trial.
(FN10.) The defendant argues that this was the
core of the Commonwealth's case. We do
not agree. The core of the case against
him consisted of the incriminating items found in the apartment he rented.