|
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.
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Elin H. Graydon,
Asst. Dist. Atty., for Com.
Hugh Samson,
Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY,
JJ.
GREANEY, Justice.
A jury in
the Superior Court convicted the defendant of distributing heroin. The only evidence concerning the defendant's
alleged activities came from Sergeant Walter Soriano of
the
In
accordance with the
We first
give an account of the trial and the hearing after remand.
(a) The trial. At trial, Soriano
testified that about 11:30 A.M. on October 13, 1983, he was dropped off at the
corner of Walnut and Park Streets in Lawrence.
Other officers were left to be called in when needed. Soriano placed
himself in a "fixed location" to specifically observe an adjacent
parking lot. He stated that he had a
clear, unobstructed view of that parking lot.
According to Soriano, there were only two
people[406 Mass. 567]
in the lot when he began his surveillance, Hispanic males working on an
automobile parked in the middle of the lot at the Bromfield
Street end. Later, at approximately
11:45 A.M., a 1968 Volvo automobile, which Soriano
had observed earlier with the defendant driving, drove into the parking lot and
backed up to a fence along the Walnut Street end.
Soriano testified that the defendant and another man,
identified as David Carrion, got out of the automobile. The defendant walked to the rear, opened the
trunk and took out a small plastic bag.
He closed the trunk, went to the passenger‑side rear tire, leaned
down and placed the bag near that tire. Soriano stated that he observed "approximately four or
five people at different times‑‑but within a short period of time‑‑come
in, walk into the parking lot ... [and] talk to either Mr. Lugo or Mr. Carrion,
[who] would immediately approach the individual." He testified that he saw the exchange of
money. According to Soriano,
"[t]he subject would give either Mr. Carrion or Mr. Lugo some money [and]
[o]ne of them would go to the rear of the vehicle,
lean down, take something out, go back towards the individual, and hand [it]
over." Soriano
stated that he was able to observe that the object handed over was blue. After each transaction, the defendant would
go to the rear of the automobile, open the trunk and deposit the money. Soriano used a
diagram of the area to depict the general area of the parking lot and nearby
buildings and obstructions.
After five
such transactions, Soriano communicated by radio with
other officers who immediately drove to the lot. One of the officers testified that he went to
the rear of the defendant's vehicle (at the passenger‑side rear tire),
reached underneath, and came out with a plastic bag which, upon subsequent
chemical analysis, was found to contain heroin.
The Volvo and its trunk were searched at some point and a wallet and
money were seized from the trunk.
The
defendant and one Angel Fernandez testified for the defense. The defendant denied any knowledge or
association with drugs and stated that he had come to the Park Street area to
see Jose Valentine for whom he occasionally worked. [406 Mass. 568] Valentine was not home but was
expected back. The defendant stated that
in order to use his time constructively while waiting for Valentine he returned
to his vehicle and began replacing the vehicle's antenna with another antenna
he had bought earlier. Because Valentine
had not arrived by the time the defendant had finished replacing the antenna,
the defendant testified that he began to pass the time talking with Fernandez
and his brother about "mechanic" things.
According
to the defendant, the police arrived somewhere between 11 and 11:30 A.M., by
which time the parking lot was filled with people. The defendant stated that the sight of police
sent almost everyone in the lot running in all directions. The defendant testified that one of the
police officers detained him while the others searched the entire area. Among the officers was Soriano,
whom the defendant knew. According to
the defendant, eight months prior to the incident, while the defendant was
driving his nephew to school, Soriano had stopped
him, searched his vehicle, asserted that the defendant's brother was a drug
dealer, and threatened to get the defendant too.
Fernandez
corroborated the defendant's testimony as to the events in the parking
lot. He testified that when the police came, the other people in the lot ran away,
and that the police had conducted a general search of the area. Fernandez indicated that the police looked
into garbage cans and other vehicles, suggesting, perhaps, that the officers
conducting the search did not know exactly where to look.
Based on
the testimony, the defendant's counsel argued to the jury that the parking lot
allegedly under surveillance was a "hangout"; that there was a crowd of people there on the
morning of October 13, 1987; that Soriano did not see any undisguised transfer of cash for
packets as he had claimed; that the most
Soriano had seen was suspicious activity obscured by
people, trees, and buildings; and that
based on suspicion only, Soriano, along with the
other officers, had searched the area and detained the defendant, whom Soriano suspected of drug activity because the defendant's
brother was a known drug dealer. Defense
counsel supported these [406 Mass.
569] arguments with the points noted
below, (FN1) but the core of the defendant's claim‑‑that Soriano could not have seen all that he said he saw, and
that inconsistent statements that had been brought out in the course of the
trial could not be explained away‑‑found defense counsel
speculating as to where Soriano might have been,
rather than arguing from certain knowledge.
(b) Remand hearing. At the in camera hearing on remand, Soriano identified his location and again testified that
from that location, he had a clear, unobstructed view of the defendant
distributing drugs. During cross‑examination
by the defendant's counsel, however, inconsistencies surfaced in Soriano's testimony with respect to: (1) whether he had been let off at the corner
of Walnut and Park Streets as he had previously claimed or at the corner of Bromfield and Park Streets;
(2) whether his alleged surveillance location was the first house off
Walnut Street or the second; (3) whether
a fence at the Walnut Street end of the parking lot obscured his view because
it was higher than the defendant's car;
(4) whether he was only a few feet from the incident or was in fact as
far away as fifty feet (Soriano conceded that the
second house off Park Street on the Walnut Street side of the parking lot, one
with no view of the defendant's car and one where the defendant argued at trial
Soriano had to have been, if anywhere, would maybe
have been forty to fifty feet from the defendant's car); and (5) whether he had observed [406 Mass. 570] the defendant place a bag under or near the left rear tire or the
right rear tire.
Notwithstanding
these discrepancies, and the inconsistencies brought out at trial, the judge
concluded that "Sergeant Soriano had a clear and
unobstructed view at close range and ... was able to see those things that he
said he saw." Based on this
finding, the judge concluded that the defendant had not been prejudiced by not
knowing the exact surveillance location, and that the Commonwealth's interest
in preventing disclosure outweighed the defendant's interest in knowing the
location.
[1] With
this background in mind, we turn to the applicable law. As the Appeals Court opinion noted, counsel
have accepted the existence of a so‑called "surveillance location
privilege" and recognize that it has been analogized to the well‑established
informer's privilege. Commonwealth v. Lugo, 23 Mass.App.Ct. 494, 497, 503 N.E.2d 974 (1987). Policy reasons comparable to those which favor
the nondisclosure of an informer support the privilege to keep a surveillance
location secret. Id. at 498, 503 N.E.2d 974.
In Roviaro v. United
States, 353 U.S. 53, 60, 77 S.Ct. 623, 627, 1
L.Ed.2d 639 (1957), the leading case in this area on the
informer's privilege, the United States Supreme Court recognized that
privileges of this type are limited by a fundamental requirement of
fairness. In general, "[w]here ...
disclosure ... is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause, the privilege must give
way." Id. at 60‑61, 77 S.Ct. at 628. The
Court in Roviaro
distinguished between the need for disclosure at a pretrial suppression hearing
and at the trial proper (which was the situation presented in Roviaro ),
and, as to the latter, observed that the privileged material "must be disclosed whenever [it]may be relevant and helpful to the accused's defense" (emphasis supplied). Id.
at 61‑62, 77 S.Ct. at 628. In the last analysis, the Court declined to
formulate a fixed rule on the subject.
Instead, it noted that "[t]he problem is one that calls for
balancing the public interest in protecting the flow of information against the
individual's right to prepare his defense.
Whether a proper balance renders nondisclosure erroneous must depend on
the particular circumstances[406
Mass. 571] of each case, taking into consideration the
crime charged, the possible defenses, the possible significance of the
[privileged] testimony, and other relevant factors." Id. at 62, 77 S.Ct. at 628.
Cases
which have considered the subject have maintained the distinction between a
demand for disclosure at a pretrial hearing, where the issue is probable cause
for arrest or a search, and a demand for disclosure at trial, where the issue
is the defendant's ultimate guilt or innocence.
Compare McCray v. Illinois,
386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938);
United States v. Green, 670 F.2d 1148 (D.C.Cir.1981);
Hicks v. United States, 431 A.2d 18 (D.C.App.1981);
State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964) (disclosure not
required within the context of a suppression hearing), with Roviaro v. United States, supra;
Commonwealth v. Johnson, 365 Mass. 534, 313 N.E.2d 571 (1974);
Commonwealth v. Crespo, 3 Mass.App.Ct. 497, 334 N.E.2d 641 (1975), overruled on a
different point in Commonwealth v. Niziolek, 380 Mass. 513, 518‑519, 404 N.E.2d 643
(1980);
Commonwealth v. Ennis, 1 Mass.App.Ct. 499,
301 N.E.2d 589 (1973); Portomene v. United
States, 221 F.2d 582 (5th Cir.1955); United States v. Conforti,
200 F.2d 365 (7th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct.
782, 97 L.Ed. 1356 (1953); Sorrentino
v. United States, 163 F.2d 627 (9th Cir.1947) (disclosure required within
the trial context). Indeed, we have
noted that "[i]t is revealing of the courts'
approach that nondisclosure is rather readily countenanced at pre‑trial
hearings, but not so at the trial itself." Commonwealth v. Johnson, supra,
365 Mass. at 545, 313 N.E.2d 571.
The cases
that have required disclosure at trial have all done so on a standard of
materiality or something roughly akin thereto.
See Commonwealth v. Johnson, supra
("helpful"); Commonwealth v. Ennis, supra
("important," "material," "relevant,"
"helpful"); Portomene v. United
States, supra ("material"); Sorrentino v.
United States, supra ("material"); State v. Burnett, supra
("essential," "material").
See also J. Wigmore, Evidence § 2374, at 768 (McNaughten rev. 1985) ("[D]isclosure
will be compelled if the [privileged information] is ... material ... on the
issue of guilt"). Further,
"material" does not necessarily mean ultimately[406 Mass. 572] conclusive.
"There 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, supra,
365 Mass. at 547, 313 N.E.2d 571. 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. Roviaro v. United
States, supra; Commonwealth v. Ennis,
supra; Portomene
v. United States, supra; United States v. Conforti,
supra. Also involved is the
corollary principle that "[a] fair and full cross‑examination to
develop facts in issue or relevant to the issue is a matter of absolute right
and is not a mere privilege to be exercised at the sound
discretion of the presiding judge, and the denial of the right is prejudicial
error." Commonwealth v. Johnson, supra, 365 Mass.
at 543, 313 N.E.2d 571, quoting Gossman v. Rosenberg, 237 Mass. 122, 124, 129 N.E. 424
(1921).
In the Ennis case, for example, the crime
charged was the sale of marihuana. A
police officer testified that he bought the drug from the defendant at a
prearranged sale having met the defendant after a conversation with an informer. On cross‑examination, the police
officer acknowledged that the informer had also been present at the sale. The defendant denied that any sale had
occurred. On these facts, where the
issue was whether the police officer was telling the truth or whether the
defendant was telling the truth, the testimony of the informer was deemed by
the court to be "important to a fair determination of the case[,]"
and the withholding of his identity was determined to be error.
Commonwealth v. Ennis, supra, 1 Mass.App.Ct.
at 503, 301 N.E.2d 589. Ennis has been cited with approval by
this court in Commonwealth v. Johnson,
supra, 365 Mass. at 545, 313 N.E.2d 571, and in Commonwealth v. Swenson, 368 Mass. 268, 276 n. 8, 331 N.E.2d 893
(1975), and has been relied upon in a case involving an implied surveillance
location privilege. Commonwealth v. Crespo,
supra, 3 Mass.App.Ct. at 500, 334 N.E.2d 641.
We come
then to the application of the law to this case. In connection with remand, the Appeals Court
framed two alternatives for the judge to consider. "If the location is such [406 Mass. 573] that Soriano was close to the parking
lot and had an unobstructed view, the judge may conclude that the defendant was
not prejudiced by not knowing the exact spot.... If, however, Soriano's
view was obstructed, or was distant from the transaction, principles of
fairness will require that the defendant be able to put these facts to a
jury." (Citations omitted.) (FN2) Commonwealth v. Lugo, 23 Mass.App.Ct. 494, 500‑501, 503 N.E.2d 974
(1987). In connection with the second
alternative, the Appeals Court pointed out (with citation to relevant
authority) that "[i]n weighing the interests of
both the defendant and the government, the judge is to consider that the
standards of disclosure at trial are more demanding than at a suppression
hearing ... and that here Soriano's testimony is
crucial to the government's case and not merely corroborative" (citations
omitted).
Id. at 501, 503 N.E.2d 974.
The judge
appears to have considered the alternatives posed by the Appeals Court as
mutually exclusive, and as requiring a finding of fact on his part of one or
the other. In keeping with the first
alternative, the judge concluded that Soriano had
given credible testimony as to his secret location [406 Mass. 574] and, as
a result, that the defendant was not entitled to disclosure.
[2] The
more proper inquiry, in our view, concerns whether disclosure would have
provided material evidence needed by the defendant for a fair presentation of
his case to the jury. We conclude that
it would have provided such evidence. The entire prosecution case rested on Soriano's credibility, and his ability to observe what he
said he had seen from his hidden location.
Soriano's testimony was not corroborated in
any respect. The defendant made a strong
preliminary showing that he might have need of the privileged information. The in camera hearing on remand established
several inconsistencies as to the location of Soriano's
vantage point and whether it permitted him to have a clear view of what he
claimed to have seen. Added to the
inconsistencies that had been brought out at trial, the missing information was
significant. The application of the
privilege hampered cross‑examination of Soriano
on the key factual issue before the jury.
In the circumstances, "a fair determination of [the] cause," Roviaro v. United
States, supra, 353 U.S. at 61, 77 S.Ct. at 628,
required that the defendant's counsel be furnished with the exact place where Soriano claimed to be so that counsel would have been able
to inquire on the subject in a concrete manner without being left to speculate
about rough (and possibly misleading) diagrams and hypothetical locations. In the last analysis, it would be for the
jury in this case to determine, in light of fully disclosed evidence, whether Soriano had a clear or an obstructed view or no view at
all. Finally, we see no basis in the
Commonwealth's argument about the procedural aspects of this appeal to deny the
defendant the review we have given him.
The order
allowing the Commonwealth's motion in limine is
reversed. The judgment is reversed, and
the verdict set aside. The case is
remanded for a new trial.
So ordered.
(FN1.) Defense counsel argued (1) previous
statements and testimony of Soriano that he saw the
defendant place the plastic bag containing the packets by the left rear tire
rather than the right; (2) that the
rough diagram of the scene drawn by Soriano
deceptively portrayed the buildings in the area as having equal and
unobstructed views of the parking lot;
(3) inconsistencies in the testimony of the officers present at the
search of the Volvo regarding what was found and where; (4) that there was no inventory made of items
found in the Volvo or on the defendant;
(5) that the police made a general unfocused search of the parking lot
more suggestive of a "fishing expedition" than a precise response to Soriano's observations;
and (6) that the police did not arrest any alleged purchasers.
(FN2.)
With respect to the first quoted alternative, the Appeals Court cited (supra, 23 Mass.App.Ct.
at 500, 503 N.E.2d 974) four cases which differ from this case. In two of those cases, the issue of
disclosure was raised within the express context of a suppression hearing,
rather than a trial. United States v. Jenkins, 530 F.Supp. 8, 9 n.*
(D.D.C.1981); United States v. Green, supra. In the remaining two, although the issue of
disclosure was raised within the trial context, neither defendant had made a
preliminary showing of need. In the
first, defendant "offered no showing that there was any vantage point in
the relevant area that could not permit a clear view of [defendant's]
activities." Thompson v. United States, 472 A.2d 899,
901 (D.C.App.1984). In the second,
defendant "offered no reason why [any further knowledge of the
surveillance location] might be important." United States v. Harley,
682 F.2d 1018, 1021 (D.C.Cir.1982). The Harley defendant knew the house number
of the surveillance location, its approximate height above street level, and
its distance from the incident allegedly observed. Id. Moreover, the government provided the jury a
videotape taken at the time of the surveillance which "indisputably
show[ed] the view the officers in the surveillance post had, the distance, the
angle, and the existence or nonexistence of obstacles in the line of
sight." Id.
The Appeals Court opinion mentions some of these distinctions.
Commonwealth v. Lugo, supra.