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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. Healis, 31 Mass.App.Ct.
527 (1991)
Appeals Court of Massachusetts,
Middlesex.
No. 90‑P‑1296.
Argued
Decided
Richard B. Klibaner,
Kevin J. Mahoney, Asst. Dist. Atty., for Com.
Before ARMSTRONG, SMITH and GILLERMAN,
JJ.
SMITH, Judge.
The
defendant was convicted by a jury of trafficking in cocaine in excess of
fourteen grams (G.L. c. 94C, § 32E[b ][1], as amended by St.1988, c.
124). On appeal, he claims that the
judge committed error when he denied the defendant's motion for disclosure of
the full name and address of an informant.
The defendant also contends that the
[31 Mass.App.Ct. 528] evidence was insufficient for the jury to find that the defendant
intended to traffic in cocaine.
At trial,
it was the Commonwealth's theory that the defendant, a seller of cocaine, had
arranged to meet a buyer in
At
The
defendant looked around and appeared to be surveying the area. The informant left the restaurant, crossed
the street, and approached the defendant's automobile. The informant's hands were empty and at his
side, and the police officers did not observe him giving anything to the
defendant. The informant exchanged words
with the defendant and then returned to the restaurant. Once inside the restaurant, the informant and
the police officer had a conversation, and the police officer instructed the
informant to leave.
Meanwhile,
the defendant drove down the street, made a U‑turn, and parked directly
in front of the entrance to the restaurant.
The police officer, stationed in the street in an unmarked cruiser,
followed the defendant and parked about forty to fifty feet behind the
defendant's automobile. The police
officer in the restaurant left and gave a prearranged signal to the other
police officers.
The police
officer who was parked behind the defendant pulled up alongside the defendant's
automobile. He observed the defendant
reach under his front seat. The police
officer drew his gun, identified himself, and ordered the defendant out of the
automobile. The police officer then
reached under the front seat of the defendant's automobile and removed a [31 Mass.App.Ct.
529] clear plastic bag of 27.86
grams of 37 per cent pure cocaine in solid "rock" form. The defendant had thirty‑five dollars
on his person.
The
defendant's story was as follows:
Earlier on May 20, 1989 (the day he was arrested), the defendant had
arranged to meet an individual whom he knew by the name of "Orlando,"
not to sell cocaine to him, but rather to buy cocaine from him for his (the
defendant's) personal use. He had met
Orlando about three or four years before and had purchased cocaine from him on
several occasions over the years. The
amount of cocaine that the defendant purchased varied depending on how much
money he had with him.
On the day
he was arrested, the defendant had thirty‑five dollars and went looking
for Orlando in order to buy some cocaine from him. He found Orlando, and the two men made
arrangements to meet that evening in front of a restaurant at which time the
defendant would buy some cocaine from Orlando.
The
defendant arrived at the agreed location and parked across from the
restaurant. At first he did not see
Orlando, but a few minutes later Orlando came running out of the restaurant,
leaned into the defendant's automobile, dropped a bag onto the floor, and ran
back into the restaurant. The defendant
looked briefly at the bag and assumed it was cocaine. The bag, however, contained a greater amount
of cocaine than the defendant intended to purchase. The defendant made a U‑turn and drove
his automobile up to the front of the restaurant. As he did so, he shouted to Orlando,
"What's going on?" The
defendant was then arrested.
[1] 1. Motion to disclose name and address of
"informant." Prior to
trial, the defendant filed a motion requesting that the judge order the
Commonwealth to divulge the name, address, and criminal record of the
individual who first approached his automobile on the evening he was
arrested. In an affidavit accompanying
his motion, the defendant stated that the individual was known to him only by
his first name, "Orlando." He
did not know his last name or residential address; therefore, he was unable to summon him as a
witness.
[31 Mass.App.Ct. 530] The Commonwealth relied on the government's privilege not to
disclose the identity of an informant.
The judge denied the motion.
"The
government's privilege not to disclose the identity of an informant has long
been recognized in this Commonwealth." Commonwealth v. Douzanis,
384 Mass. 434, 441, 425 N.E.2d 326 (1981).
See also Commonwealth v. Amral, 407 Mass. 511, 516‑517, 554 N.E.2d 1189
(1990). "It was originally
justified as a means of encouraging 'every citizen' in his 'duty ... to
communicate to his government any information which he has of the commission of
an offence against its laws.' " Commonwealth v. Ennis, 1 Mass.App.Ct. 499, 501, 301 N.E.2d 589 (1973), quoting from Worthington v. Scribner, 109 Mass. 487,
488 (1872). The privilege, however, is
not absolute, particularly where a demand for disclosure is made at trial and
the issue is the defendant's ultimate guilt or innocence. Roviaro
v. United States, 353 U.S. 53, 60‑61, 77 S.Ct.
623, 627‑28, 1 L.Ed.2d 639 (1957). Commonwealth v. Lugo, 406 Mass. 565, 571,
548 N.E.2d 1263 (1990). In general, at
trial, an informant's identity must be disclosed "[w]here [such]
disclosure ... is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause...." Commonwealth v. Nelson, 26 Mass.App.Ct. 794, 797, 536 N.E.2d 1094 (1989), quoting from Roviaro v. United
States, 353 U.S. at 60‑61, 77 S.Ct. at 628.
Here, the
defendant was charged with a violation of G.L. c.
94C, § 32E(b ) (1). "[T]he conduct prohibited by the statute
... is the knowing or intentional manufacture, distribution, dispensing or
possession with intent to manufacture, distribute, dispense or bring into the
Commonwealth [a net weight of fourteen grams but less than twenty‑eight
grams] of cocaine...." Commonwealth v. Chappee,
397 Mass. 508, 522, 492 N.E.2d 719 (1986).
His defense consisted of a denial that he possessed the cocaine with an
intent to "distribute [or otherwise] dispense" the drug. Also, implicit in his testimony was a claim
that he was "set up" by the informant (and by the police), whereby
the informant planted in the defendant's automobile cocaine far in excess of
the amount he intended to buy.
[31 Mass.App.Ct.
531] The questions before the jury
were clear‑‑was the defendant a buyer of a small amount of cocaine
for personal use or a seller of a large amount of cocaine? Further, who was telling the truth‑‑was
it the police officers who testified that the informant did not place anything
in the defendant's automobile, or was it the defendant, who testified that the
informant had dropped cocaine into his automobile? The testimony of the informant, obviously,
was critical.
Here, the
informant was an active participant and the only nongovernment
witness to events that gave rise to the defendant's arrest. See
Commonwealth v. Lugo, 406 Mass. at 572, 548 N.E.2d 1263 ("In the
informer situation, where the informer is an active participant in the alleged
crime or the only nongovernment witness, disclosure
usually has been ordered"). Also,
it was the informant who arranged the meeting at which the defendant's arrest
occurred and who acted under the direction of the police at all times just
prior to the defendant's arrest. See Commonwealth v. Ennis, 1 Mass.App.Ct. at 503, 301 N.E.2d 589 ("[T]he informer
was the only other person present at the sale [of narcotics] and, what is more,
arranged the meeting at which it occurred.
On these facts disclosure was required").
The
Commonwealth, however, argues that disclosure of the informant's identity is
not required because the defendant failed to show how the lack of the
informant's testimony prejudiced him. But "[t]here is ... no requirement that a
defendant, denied access to evidence that might prove helpful in his defence, must make a specific showing of just what the
evidence would have proved and how far he was prejudiced by the
withholding." Commonwealth v. Johnson, 365 Mass. 534,
547, 313 N.E.2d 571 (1974).
We, of
course, cannot tell what effect the disclosure of the informant's identity
might have had on the case. "[W]e
do not know what ... [the informer's] testimony might have been or what other evidence
might have been introduced if defence counsel had had
the benefit of [the identity of the informer]...." Commonwealth v. Ennis, 1 Mass.App.Ct. [31
Mass.App.Ct. 532]
at 504, 301 N.E.2d 589, quoting from and paraphrasing Commonwealth v. Balliro, 349 Mass. 505,
517, 209 N.E.2d 308 (1965).
On these
facts, we hold that disclosure of the informant's identity was essential to a
fair determination of the case. (FN1)
2. Denial of motion for required finding of
not guilty. The defendant argues
that the trial judge erred in denying his motion for a required finding of not
guilty. He contends that the
Commonwealth did not introduce sufficient evidence for a rational jury to find,
beyond a reasonable doubt, that he was guilty of trafficking in cocaine.
On this
issue we must determine "whether, after viewing the evidence in light most
favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt" (emphasis original).
Jackson v. Virginia, 443 U.S. 307, 318‑319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Commonwealth v. Latimore, 378 Mass. 671,
677, 393 N.E.2d 370 (1979).
[2] The
defendant argues that there was insufficient evidence from which the jury could
warrantably conclude that there was an intent to
distribute. "Intent is a factual
matter that may be proved by circumstantial evidence." Commonwealth v. LaPerle, 19 Mass.App.Ct. 424,
427, 475 N.E.2d 81 (1985). Possession of
a large quantity of cocaine can support an inference that the defendant
intended to sell cocaine. See Commonwealth v. Sendele,
18 Mass.App.Ct. 755, 758‑759, 470 N.E.2d 811
(1984).
[3] A
police officer was qualified as an expert in narcotics distribution. He testified that the amount (27.86 grams) and
purity (37 per cent) of the cocaine was consistent with an intent to
distribute. (FN2) In addition, the evidence showed that the
cocaine was in "rock" form, which also raised an inference that the
cocaine was being held for distribution.
See [31 Mass.App.Ct.
533] Commonwealth v. Sendele, 18 Mass.App.Ct. at 758, 470 N.E.2d 811. There was no error in denying the
defendant's motion. Compare Turner v. United States, 396 U.S. 398,
423, 90 S.Ct. 642, 655‑56, 24 L.Ed.2d 610
(1970) (14.68 grams of a cocaine and sugar mixture not sufficient to support
conviction of distribution); Commonwealth v. Sendele,
18 Mass.App.Ct. at 756, 758, 470 N.E.2d 811 (14.4
grams of 37 per cent pure cocaine in rock form, standing alone, might not be
sufficient to justify inference of intent to distribute).
There must
be a new trial because of the denial of the defendant's motion to obtain the
name and address of the informant.
Judgment reversed.
Verdict set aside.
(FN1.) On appeal, the defendant also argued
that the privilege did not apply because he was aware that "Orlando"
was the informant. See Commonwealth v. Curcio,
26 Mass.App.Ct. 738, 747, 532 N.E.2d 699 (1989)
("With the informer's identity known, the Commonwealth could not claim the
'informer's privilege' ..."). Trial
counsel did not make the argument below and, consequently, we do not consider
it now.
Commonwealth v. Lazarovich, 410 Mass. 466,
476, 574 N.E.2d 340 (1991).
(FN2.) The
expert witness also testified that a user of cocaine "[g]enerally" would have a smaller amount.