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Opinions of The and the Court of Appeals To be used in conjunction
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CPS Commonwealth
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Commonwealth v. Hall, 50 Mass.App.Ct.
208 (2000)
Appeals Court of Massachusetts,
Hampden.
No. 99‑P‑228.
Argued
Decided
Further Appellate Review Denied
Wendy H. Sibbison,
Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.
Present: PORADA, DREBEN, & DUFFLY, JJ.
DREBEN, J.
The
defendant appeals from his conviction of trafficking in excess of twenty‑eight
grams of cocaine. We reverse [50 Mass.App.Ct.
209] his conviction and remand for a
new trial because all evidence of police brutality was excluded so as to
preclude the defendant from conveying the issue of police bias to the
jury. The credibility of the police witnesses
was a critical issue at trial. We
discuss only those issues that are relevant to a new trial.
1. Motion to suppress. The motion judge found the following
facts. Based on a tip of a confidential
informant that the defendant would arrive at
[1][2] The
defendant claims there was an insufficient basis for finding probable cause or
reasonable suspicion for the seizure.
(FN2) He properly concedes that
the informant was reliable. The officer
receiving the tip, Thomas Scanlon of the narcotics bureau of the Springfield
police department, testified that the informant had previously provided
information which had led to the seizure of narcotics and convictions in at
least five cases.
What the
defendant challenges is the informant's basis of knowledge. Scanlon testified that he had spoken by
telephone with the informant concerning the defendant on three occasions on
November 20, as well as several weeks before.
During the second call on November 20, Scanlon asked the informant to
find out when one of the narcotics deliveries was going to occur. On the third phone call, the informant stated
he was present and participated in an arrangement for a street dealer, who
regularly had business with the defendant, to call the defendant in his [50 Mass.App.Ct.
210] vehicle and make plans for a
delivery. The informant then told
Scanlon that the defendant would be driving a certain color Honda Accord and
would deliver drugs between 4:45 and 5:00 P.M. at Truman Circle. Scanlon did not ask for a description of the
defendant or of his clothing as he knew the defendant. Truman Circle is a small street with just ten
houses on it. The defendant's car, as
predicted, arrived at 4:45 P.M.
[3] The
informant's tip was based on hearing only the street dealer's part of the
conversation and hence was not based entirely on personal knowledge (and
presumably was based upon some hearsay).
The deficiency was, however, compensated by police corroboration. The informant's description of the expected
behavior of the defendant, i.e., his arrival at a certain short street, Truman
Circle, in a specified car at a stated time, was verified by the police. See
Commonwealth v. Stevens, 362 Mass. 24, 28, 283 N.E.2d 673 (1972);
Commonwealth v. Bakoian, 412 Mass. 295,
301‑302, 588 N.E.2d 667 (1992).
See also Commonwealth v. Powers,
39 Mass.App.Ct. 911, 913, 654 N.E.2d 338 (1995). In these circumstances, the police had
reasonable suspicion to effectuate a
Terry stop. (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct.
1868, 20 L.Ed.2d 889 [1968] ). As the
motion judge found, once the defendant fled and threw the item to the ground,
his actions elevated the suspicion to probable cause to arrest. See
Commonwealth v. Sweezey, 50 Mass.App.Ct.
48, 52, 735 N.E.2d 385 (2000), and cases cited.
[4][5][6]
Contrary to the defendant's contention, the motion judge was not required to
conclude that the police action in attempting to block the defendant's vehicle
constituted an arrest rather than a Terry
stop. "The distinguishing feature
of a Terry stop is that the intrusion
is temporary, and in degree it is not excessive or incommensurate with the
accomplishment of its purpose." Commonwealth v. Fitzgibbons, 23 Mass.App.Ct. 301, 306, 502 N.E.2d 142 (1986). "Blocking generally will be reasonable
when the suspect is in a vehicle because of the chance that the suspect may
flee upon the approach of police with resulting danger to the public as well as
to the officers involved." Id. at 304, 502 N.E.2d 142 (citation
omitted).
Commonwealth v. Blake, 23 Mass.App.Ct.
456, 460, 503 N.E.2d 467 (1987). Here,
although a number of police cars awaited the defendant, they were out of his
sight. Only two were present when he
attempted to flee. (The defendant
claimed he only heard one, see note 1,
supra.) The intrusion was not
incommensurate with the purpose of precluding flight.
[7][8] The
fact that some of the police thought they were converging on the defendant to
arrest him did not convert the stop into
[50 Mass.App.Ct. 211] an arrest, see Commonwealth
v. Cook, 419 Mass. 192, 198, 644 N.E.2d 203 (1994), nor did the
Commonwealth's concession that the police officer's intent was to arrest the
defendant, if there was such a concession, bind the motion judge or this court
to apply a probable cause standard. See Commonwealth v. Va
Meng Joe, 425 Mass. 99, 102, 106 n. 9, 682 N.E.2d
586 (1997) (court obligated to accept a factual concession, but can ignore
legal conclusions).
In sum,
the judge did not err in declining to apply the probable cause standard and in
concluding that the attempt to block the defendant was based on reasonable
suspicion. There was no error in the denial
of the motion to suppress the cocaine.
2. Exclusion of evidence of police bias. At the hearing on the motion to suppress,
the accounts of what happened when the police caught up with the defendant
varied significantly. Both the defendant
and a high school student, one Oliver Duncan, testified that the defendant
alighted from the car with his hands up, was grabbed by police officers,
handcuffed, and then kicked and beaten.
Pictures and medical records confirmed that the defendant had been
injured. The defendant also testified
that the next day he went back to press charges to "Internal Affairs"
at the police station.
[9] On the
day prior to trial, when motions and other matters were discussed, defense
counsel indicated that he had several witnesses "who [would] testify that
[the defendant] was beaten by the police after being handcuffed in a prolonged‑‑protracted,
violent manner." This testimony,
he claimed, would "go directly towards the credibility of the
police." The trial judge responded that she saw no reason for the
admissibility of this evidence and would not permit it to come into evidence at
that time. (FN3) The issue, she said, was whether or not the
defendant had the drugs. Whether
excessive force was used in the arrest was a collateral matter. The judge also indicated that should the
matter become meaningful during the trial for some reason she [50 Mass.App.Ct.
212] did not then appreciate,
counsel was to alert her and she would take another look. (FN4)
[10][11][12][13][14]
"[E]vidence of bias is almost never a collateral
matter." Commonwealth v. LaVelle,
414 Mass. 146, 153, 605 N.E.2d 852 (1993).
"The right of a criminal defendant to cross‑examine a
prosecution witness to show the witness's bias, and hence to challenge the
witness's credibility, is well established in the common law, in the United
States Constitution (Sixth Amendment), and in the Constitution of the
Commonwealth (art. 12 of the Declaration of Rights)." Commonwealth v. Bui, 419
Mass. 392, 400, 645 N.E.2d 689, cert. denied, 516 U.S. 861, 116 S.Ct. 170, 133 L.Ed.2d 111 (1995). "If, on the facts, there is a
possibility of bias, even a remote one, the judge has no discretion to bar all
inquiry into the subject." Ibid.
The defendant must "make a plausible showing that the circumstances
existed on which the alleged bias is based." Id. at 401, 645 N.E.2d
689. As stated in Blair v. United States, 401 F.2d 387, 389 (D.C.Cir.1968), "It
is of course clear that the range of evidence that may be elicited for the purpose
of establishing bias of a witness is quite broad and that accordingly evidence
of police brutality is admissible for such purposes" (footnote citing 3 Wigmore, Evidence §§ 943‑953 [3d ed.1940] omitted).
Possible
bias of police witnesses was an important question in this case. All nine prosecution witnesses were members
of the narcotics division of the Springfield police department. If brutality had occurred, they would have
had a motive to cover up the beating to protect themselves or their fellow
officers. See Commonwealth v. Maffei, 19 Mass.App.Ct. 924, 471 N.E.2d 1364 (1984). The medical evidence and photograph
introduced at the motion to suppress, and the testimony of the defendant, of
the high school student Oliver Duncan, and even that of the officers concerning
the defendant's injuries, gave plausibility to the claim of untoward behavior
by the police.
[15][16] [50 Mass.App.Ct.
213] The case against the defendant
hinged on the credibility of the witnesses.
At trial, the police claimed that the defendant threw the drugs out the
window of his car. When they finally
caught up with him, he resisted arrest and they had to subdue him. They saw no one other than the defendant
leave the vehicle. (FN5) On the other hand, the defendant's five
witnesses put a third person in the car who, the defendant claimed, must have
thrown the drugs. A number of these
witnesses testified that when the defendant alighted from the car, he had his
hands raised. In these circumstances, it
was error to exclude all cross‑examination and direct evidence of police
brutality. (FN6), (FN7) On retrial, the
judge will have discretion to limit such evidence if redundant, but not to
exclude it entirely.
Cases
elsewhere support the view that evidence of police brutality may indicate bias
of police witnesses. See, e.g., United States v. Padilla, 869 F.2d 372,
379 n. 3 (8th Cir.), cert. denied, 492 U.S. 909, 109 S.Ct.
3223, 106 L.Ed.2d 572 (1989); Lutherman v. State,
348 So.2d 624, 625 (Fla.Dist.Ct.App.1977); People v. Lenard,
79 Ill.App.3d 1046, 1049, 35 Ill.Dec. 104, 398 N.E.2d
1054 (1979); McKinley v. State, 465 N.E.2d 742, 746‑747
(Ind.Ct.App.1984); City of Xenia v. Burton, 128 N.E.2d 134,
136 (Ohio Ct.App.1953); Lansdale v. State, 143 Tex.Crim. 167, 168, 158 S.W.2d 75 (1942). See also
Commonwealth v. Maffei, 19 Mass.App.Ct.
at 924, 471 N.E.2d 1364.
[17][18]
3. Other matters. The defendant's account of what occurred‑‑complete
denial of involvement‑‑did not, without more, "provide a basis
for requiring a lesser included offense instruction" on possession because
such evidence "in no way negated" the defendant's intent to
distribute the cocaine. See Commonwealth v. Egerton,
396 Mass. 499, 504, 487 N.E.2d 481 (1986).
"It is true ... that the jury were free to disbelieve all, or any
portion, of (the police testimony),"
id. at 505, 487 N.E.2d 481; for
example, they were free [50 Mass.App.Ct. 214]
to disbelieve that the large quantity of cocaine indicated trafficking. "The judge's duty to charge on lesser
included offenses, however, is not coincident with the jury's unique
prerogative as the ultimate fact finder.
The judge need not reconstruct all possible factual scenarios subsumed
in the evidence presented, no matter how unreasonable, and charge the jury
accordingly. There must be some evidence
on the element differentiating the greater and lesser offenses."
Ibid. Although the judge
probably would not have been in error in giving an instruction based on the
defendant's hypothesis, if rational, on the evidence taken in its entirety, see Commonwealth v. Thayer, 418 Mass. 130,
133, 634 N.E.2d 576 (1994) (if on any hypothesis of the evidence, the jury
could have found the lesser offense, giving an instruction to the jury on this
crime is not error), such an instruction was not required. Accordingly, there was no error in the
judge's refusal to charge on the lesser included offense. As the remaining contentions of the defendant
are not likely to arise on retrial, we see no need to discuss them.
For the
reasons stated in part two of this opinion, the judgment is reversed, and the
matter is remanded to the Superior Court for a new trial.
So ordered.
(FN1.) The defendant testified at the motion
hearing that he heard a car behind him skidding and he "pull[ed] off"
as a natural reflex.
(FN2.)
The police attempt to block the defendant's car was a seizure. See
Commonwealth v. Stoute, 422 Mass. 782, 789, 665
N.E.2d 93 (1996).
(FN3.)
Although the defendant did not bring the matter up again at trial, except as
indicated in note 4, infra, we do not
consider whether the absence of a further objection at trial precludes review,
see Commonwealth v. Whelton,
428 Mass. 24, 26, 696 N.E.2d 540 (1998), as we are not persuaded that the error
did not "materially influence the guilty verdict."
Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999),
quoting from Commonwealth v. Freeman,
352 Mass. 556, 563‑564, 227 N.E.2d 3 (1967).
(FN4.)
The defendant attempted to bring in evidence of police misconduct on redirect
examination of one of the defense witnesses, Marcie Stallworth,
who testified that she had seen a small male, not the defendant, flee from the
car. The prosecution had, without laying
a foundation, see Commonwealth v. Brown,
11 Mass.App.Ct. 288, 296, 416 N.E.2d 218 (1981),
elicited the fact that Stallworth had not called the
police, and defense counsel wanted to ask her why. He claimed that her response would have been
that she saw the police assaulting the defendant, and she was afraid to go to
them. The judge ruled the matter was a
stretch as she had given a good explanation, namely, that she had come forward
after overhearing a conversation about the incident between the relatives of
the defendant.
(FN5.)
The Commonwealth never argued that the defendant was engaged in a joint
venture, or that he had constructive possession of the cocaine.
(FN6.) On cross‑examination of the
defendant by the prosecution, the defendant attempted to testify that the
police came at him with force. His
unresponsive answer to a question of the prosecutor can not be viewed as
sufficient to present the issue of brutality to the jury.
(FN7.) "Because bias, prejudice, and
motive to lie are not considered collateral matters, they may be demonstrated
by extrinsic proof as well as on cross‑examination. There is no requirement that the opponent
cross‑examine on the matter as a foundation prior to offering extrinsic
evidence." Liacos,
Massachusetts Evidence § 6.9, at 299‑300 (7th ed.1999) (citations
omitted). See Commonwealth v. Gabbidon, 17 Mass.App.Ct. 525, 531, 459 N.E.2d 1263 (1984).