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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. Guerrero, 32 Mass.App.Ct.
263 (1992)
Appeals Court of Massachusetts,
No. 90‑P‑889.
Argued
Decided
Yvonne P. Toyloy,
Committee for Public Counsel Services, for Emilio Mejias.
William M. Leonard,
Robert C. Thompson, Asst. Dist. Atty., for
Com.
[32 Mass.App.Ct.
264] Thomas J. Freda,
Before KASS, SMITH
and GREENBERG, JJ.
KASS, Justice.
One
of the defendants, Emilio Mejias, raises the question
whether, in the light of Pennsylvania v.
Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d
528 (1990), answers to questions about employment at booking may be admitted as
inculpatory evidence.
Each defendant urges that he was entitled to a required finding of not
guilty. Jose A. Sanchez, another
defendant, argues that the evidence placed against him before the grand jury
was insufficient. We affirm the
convictions of trafficking in more than twenty‑eight grams of
cocaine. G.L.
c. 94C, § 32E(b ).
Viewing
the evidence in the light most favorable to the government, Commonwealth v. Latimore, 378
On
the basis of the exchange he had witnessed, Trooper Noone
applied for and received a "no knock" search warrant for the first
floor apartment. That night, February
16, 1988, around 9 P.M., a squad of police officers descended upon 10 Union
Street to execute the warrant. Two
officers, O'Reilly and Luciano, undertook to make an
additional "buy" before the search team moved in. They noticed, however, that their approach
had been observed; Trooper O'Reilly saw
someone looking at them from an apartment window as they drove up and then
quickly close the curtain.
[32 Mass.App.Ct.
265] Armed with a one‑person
battering ram, (FN3) O'Reilly opted for an immediate entry. From the hallway, he heard the sound of
running footsteps inside the apartment.
O'Reilly broke down the door with his battering ram and, with Luciano behind him, raced for the bathroom. There he found the three defendants between
the bathtub and the toilet. The officers
maneuvered the defendants into the bathtub, a place where, according to
O'Reilly, they could be "secured."
Other officers then escorted the defendants elsewhere in the apartment,
leaving O'Reilly and Luciano to begin their search in
the bathroom. The toilet attracted
attention because it was at a tilt and without water in it. With the aid of a flashlight, O'Reilly
inspected the crack between the tilted toilet and the floor. He saw a plastic baggie. To get at it, O'Reilly "dismantled"
the toilet with his battering ram. That
baggie enclosed twelve smaller bags containing white powder which proved to be
cocaine.
Trooper
O'Reilly then went down to the cellar to examine the soil pipe that led from
the toilet. There was a further
dismantling by battering ram. So
disassembled, the soil pipe disgorged sixteen small plastic bags of
cocaine. All the small bags were
"very similar if not identical" to the baggie E.T.
had bought earlier in the day.
Other
matter of interest found by the police in that apartment included: a bucket of water in the bathtub, a triple
beam scale, three machetes, a wooden club, and $450 in cash. The entry doors to the apartment were secured
from within by two‑by‑fours held in place by metal brackets on each
side of the door frame. A search of the
defendants turned up $314 in cash on the person of Mejias
and $290 on that of Guerrero. The
defendants denied living in the apartment.
[1]
1. Required finding of not guilty. This aspect of the appeal is controlled by
our opinion in Commonwealth v. Arias,
29
Mass.App.Ct. 613, 617‑620, 563
N.E.2d 1379 (1990), S.C., 410 Mass.
1005, 572 N.E.2d 553 [32 Mass.App.Ct. 266]
1991). As in Arias, the defendants argue that the government proved only their
presence where drugs were found. The
Commonwealth had also adduced evidence, however, that there was active running
around when the approach of the police was apparently spotted. All three defendants chose to hustle to a semifunctioning bathroom, where drugs were found to have
been secreted. Both entry doors were
barricaded with two‑by‑fours resting in metal brackets. Although sparsely furnished, among the
equipage were a club, three machetes, and a triple‑beam balance. A sandwich bag containing $450 was hidden
between a wooden board and a table bottom.
Then there was the cash found on Mejias ($314)
and Guerrero ($290). The drugs found on
the premises were packaged in the same manner and diluted with the same dilutant (lactose) to practically the same proportion as
the cocaine sold earlier in the day to E.T. This web of circumstantial evidence was
strong enough to warrant a finding of joint control and power by the defendants
over the cocaine found in the apartment. Commonwealth v. James, 30 Mass.App.Ct. 490, 494‑500, 570 N.E.2d 168 (1991).
In
abbreviated form, Trooper O'Reilly provided the same evidence to a grand
jury. If the evidence was enough to
convict, it was more than enough to secure an indictment. The motion in behalf of Sanchez (on whose
person no cash was found) to dismiss the indictment was properly denied. See
Commonwealth v. Arias, 29 Mass.App.Ct. at 616‑617,
563 N.E.2d 1379.
[2]
2. Admissibility of statements made
during booking. At their booking,
the defendants were asked about their employment, and each stated he was
unemployed. In closing, the prosecutor
invited the jury to reflect on the significance of the cash found on the
premises coupled with the declarations of the defendants that they were
unemployed. Manifestly, the statements
of the defendants about their employment status were inculpatory. The circumstances of the defendants'
unemployment came in evidence, over defense objections, through the testimony
of Trooper Luciano, who had been the booking officer.
[32 Mass.App.Ct.
267] In Commonwealth v. Kacavich, 28 Mass.App.Ct. 941, 550 N.E.2d 397 (1990), we summarized the
State and Federal authorities which held that routine questions put at booking,
including inquiries about address and employment, were not interrogation within
the meaning of the Miranda rule because the purpose of such questions was not
investigatory. Such questions might, therefore,
be asked without Miranda warnings.
Subsequent to the Kacavich opinion, the Supreme Court, in Pennsylvania v. Muniz, 110 S.Ct. at 2650, further defined the "routine booking
exception" to the Miranda principle as "biographical data necessary
to complete booking or pretrial services."
As examples of permissible
routine booking questions, the Court cited questions regarding the name,
address, height, weight, eye color, date of birth, and current age (FN4) of the
defendant. Categorized as impermissible
was a question asked of Muniz to test his sobriety, "Do you know what the
date was of your sixth birthday?"
In the face of an inaudible reply, the police officer tried again,
"When you turned six years old, do you remember what the date
was?" Although the police were not
interested in the date of Muniz's sixth birthday, but in his ability to
calculate it, the Court reasoned that if the content of the answer to a
question had potential to incriminate, then the question was one which a person
in custody ought not to be asked without Miranda warnings. Id. at 2647‑2649. The content of Muniz's truthful answer to
the question put, that he did not know the date of his sixth birthday,
supported an inference, incriminating in his case, that his mental faculties
were impaired. Id. at 2649.
Similarly,
while a booking officer proceeding down a litany of routine questions may have
no investigatory purpose in asking the arrested person about how she or he is
employed, the content of what comes from the lips of that person in response to
the question may be incriminating, as the instant case illustrates. Predictably, the prosecutor thought the
juxtaposition of cash and lack of employment worth mentioning in closing
argument. To be sure, even the most
basic biographical[32 Mass.App.Ct. 268] questions‑‑name, age, address,
next of kin, weight, height, eye color‑‑may in a particular context
yield information which assists in proving the case against the defendant. That sort of information is pertinent,
however, to the custodial responsibilities of the police. The relevance of occupation and employment to
those responsibilities is less immediately obvious, and, in light of the Muniz decision, it will be preferable,
unless Miranda warnings are repeated prior to booking, to scrub questions about
employment status from the booking ritual.
See Smith, Criminal Practice & Procedure § 341, n. 2.5
(Supp.1991). Cf. United States v. Doe, 878 F.2d 1546, 1551‑1552 (1st
Cir.1989).
Our
reflections on the bearing of the Muniz
case on booking practices do not, however, carry the day for Mejias, the only one of the defendants who has raised the
point. Mejias
did not assert below that he did not receive a renewal of the Miranda warnings
before he was booked, nor did he move at trial (1) to strike his answer at booking
to the employment status question or (2) by a motion in limine,
to bar the Commonwealth from mentioning the employment status of the defendants
in closing argument.
That Mejias made no pretrial motion to suppress his booking
statement should, perhaps, occasion no surprise. There is some doubt that the government ever
made the booking statements available to defense counsel before trial. Indeed, Mejias
claims on appeal that his statement about being unemployed should have been
suppressed on the authority of Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196,
10 L.Ed.2d 215 (1963), i.e., that the government had failed to comply with a
pretrial agreement to disclose inculpatory (or
exculpatory) statements. See also Commonwealth v. Gallarelli,
399 Mass. 17, 20‑21, 502 N.E.2d 516 (1987). All three defense lawyers insisted they had
not received the booking sheets. The
assistant district attorney, for his part, insisted the booking sheets had been
furnished. The judge made no findings
which resolved the conflict, nor was he pressed so to do by defense
counsel. (FN5) On that state of the [32 Mass.App.Ct. 269] record, the foundation for a motion to suppress was inadequate.
Astutely,
the judge declared a recess during which the defense lawyers might consider how
to cope with adverse material in the booking sheets. Neither counsel for Mejias
nor for the other two defendants moved to strike or suppress their clients'
statements on the ground that they had been made without adequate refreshment
of Miranda warnings. Indeed, Detective Luciano had testified that these Spanish‑speaking
defendants were given Miranda warnings orally by him. He also testified that there was a sign in
Spanish in the booking room which announced the Miranda rights. At trial, Mejias
did not argue that his statement about employment was unguarded because he had
not received timely or adequate Miranda warnings. He cannot now attempt to argue on appeal an
issue that rests on the assumption that he had not received adequate Miranda
warnings when he was booked. Finally,
the failure of counsel for Mejias to request a
continuance after disclosure of Mejias's inculpatory statement suggests that earlier knowledge of it
would not have resulted in effective defense tactics to neutralize such adverse
impact as the statement had. See Commonwealth v. Medina, 372 Mass. 772,
779‑780, 364 N.E.2d 203 (1977); Commonwealth v. Baldwin, 385 Mass. 165,
177, 431 N.E.2d 194 (1982).
[3]
3. The objection to the instruction. During his closing argument, counsel for
Sanchez, Mr. William M. Leonard, characterized the search and seizure operation
in this case as "Nazi justice."
It was altogether appropriate‑‑hence not error‑‑for
the trial judge to comment as follows:
"In addition, members of the jury,
despite what might be any arguments or comments made to you to the contrary,
the police, in this case, in the execution of this warrant acted properly in
accordance with our American law. It was
a no knock warrant, it was legally obtained, the search was legal in accordance
with the [32 Mass.App.Ct.
270] warrant, the gathering of the
material under the authority of the warrant was legal and the return to the
Court was legal. No inference should be
drawn to the contrary.
"Also, members of the jury, the fact
that I am making this comment to you with respect to the lawyer's argument
should not, in any way, be considered adverse to the defendants, but I make it
for your purposes to set the record straight.
What happened after the warrant was executed, and with respect to the
elements of the crime is going to be completely up to you. But the procedure was perfectly authorized
and legal."
The judge's comment was a necessary
correction of Mr. Leonard's excessive remarks.
See Commonwealth v. Mahdi, 388 Mass. 679, 693, 448 N.E.2d 704 (1983)
(condemning closing argument [in that case by prosecutor] calculated to
distract jurors from detached consideration of the evidence);
Commonwealth v. Edgerly, 6 Mass.App.Ct. 241, 257, 375 N.E.2d 1 (1978) ("[i]t is the duty of the trial judge to guard against
improper argument to the jury").
See also Commonwealth v. Hogan,
12 Mass.App.Ct. 646, 653 n. 10, 428 N.E.2d 314
(1981).
Judgments
affirmed.
(FN1.) The companion cases are against Emilio Mejias and Jose A. Sanchez.
(FN2.) E.T.
apportioned the contents of the baggie, half to himself and half to the patrons
who had provided the money to buy it.
(FN3.) O'Reilly described this device as
"approximately a foot and a half, two feet long and weighs approximately
forty to fifty pounds and it's made specifically to take down doors."
(FN4.) Current age may, of course, be deduced
from date of birth, but the Pennsylvania police asked for both.
(FN5.) One may add that booking sheets are
available for inspection by defense counsel and that it is difficult to take
seriously the posture of outrage assumed by the defense lawyers that they had
been unfairly surprised by mention of what appeared on those sheets.