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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. Modica, 24 Mass.App.Ct.
334 (1987)
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Further Appellate Review Denied
Steven J. Rappaport,
Ellen M. Caulo, Asst.
Dist. Atty., for the Com.
Before [24
Mass.App.Ct. 334]
GREANEY, C.J., and DREBEN and KASS, JJ.
GREANEY, Chief Justice.
Following
trial by a six‑person jury in a District Court, the defendant, a lawyer,
was convicted of receiving stolen property (computer equipment stolen from
Drawing
principally on the findings of fact made by the judge who heard the motion to
suppress, see Commonwealth v. Gil,
393 Mass. 204, 211‑212, 471 N.E.2d 30 (1984), we summarize the
circumstances of the seizure of the computer equipment. In August and October of 1983, the
On
December 19, 1983, about 8:30 P.M., the principal of Ipswich High School
received a telephone call from an anonymous well‑spoken man who
stated: "If you want to get your
equipment back, call the Wakefield police and have them stake out 37 Aborn Street and 22 Eaton Street [Wakefield] for a couple
of days and you should be able to get it back." The principal promptly made contact with the
Also on
Inspector
Theodore J. LeMieux of the Ipswich police was the
chief investigating officer for the Ipswich breaks. On December 20, 1983, the Ipswich police were
notified of the Rockport thefts, and Inspector LeMieux
was furnished with the serial numbers of the stolen computer equipment.
Acting on
the tip, the Ipswich police consulted with the Wakefield police. The Wakefield end of the investigation was
headed by Inspector Arthur O'Keefe. That
investigation revealed that an Aborn Street did not
exist in Wakefield but that an Aborn Avenue did. A Modica family
resided at 37 Aborn Avenue. Persons named Modica
also resided at 23 Eaton Street (not 22 Eaton Street as in the tip). Learning of these facts, the police decided
to conduct surveillance of the two Modica
addresses. Inspector LeMieux
and another officer watched the Aborn Avenue address
while Officer Daniel L. Moriarty of the Ipswich police watched the Eaton Street
home.
The
surveillance began on December 20, 1983, and lasted from approximately 4:00
P.M. to 10:00 P.M. Nothing was seen
during that period at either house.
Surveillance resumed on December 21, 1983. Inspector LeMieux
drove by the Eaton Street address at 4:15 P.M. and observed a beige Plymouth
"Scamp" (a mid‑size car) parked in the yard. A little after 6:00 P.M. Officer Moriarty saw
three men emerge from 23 Eaton Street.
Two of the men were carrying a cardboard box large and strong enough to
contain a computer. A third man followed
on crutches. Despite the facts that it
was dark outside and that the path was covered with snow, no outside lights
were turned on to guide the men from the house to the car. The two men carrying the box looked back and
forth several times in a furtive manner.
The two men placed the box in the back seat of the car, the third man
entered the car's rear seat, and the men left in the car. Moriarty made contact with LeMieux and O'Keefe, and a radio message went out directing
that the car be stopped. [24 Mass.App.Ct.
337] Officer James Moccia of the Wakefield police, who was on cruiser duty,
spotted the car and pulled it over as it was about to leave the town limits of
Wakefield. Moccia
quickly ascertained that the driver was Kevin Flynn, checked Flynn's license
and the registration for the car (both were in order), and waited for the other
officers (LeMieux, O'Keefe, and Moriarty) to arrive.
When these
officers arrived, Inspector O'Keefe, the officer coordinating the
investigation, appears to have taken charge.
He recognized Flynn, the driver of the car, as someone with whom he had
gone to high school. He recognized James
Dulong, the front seat passenger, as the man on
crutches and as someone who had previously been arrested for breaking and
entering and for drug offenses. He also
recognized the defendant as an attorney with whom he was slightly acquainted.
As he
approached the car, Inspector O'Keefe noticed the defendant seated in the rear
seat next to the box. The defendant was
clutching his briefcase to his chest. A
strong odor of marihuana emanated from the car's interior. Upon questioning the three men, O'Keefe
received evasive replies. O'Keefe asked
each man if the box belonged to him.
Each one denied ownership. The
defendant additionally told O'Keefe that "he knew nothing about the
box," that he could not "speak for the other people," and that
he was "just going to Boston."
O'Keefe mused aloud that "the box was just seen coming out of 23
Eaton Street, being carried by Mr. Flynn and Mr. Modica
and ... now nobody knows anything about the box." O'Keefe then asked Flynn, the driver of the
car, if the motor vehicle belonged to him.
When Flynn said it did, O'Keefe continued, "You're the operator of
the car, it's your car. I would like to
look in that box." Flynn replied
in the affirmative. Flynn looked over at
the defendant. No words were
exchanged. When the box was placed on
the trunk of the car, a police officer noticed that the box was marked
"Fragile." The officers
opened the box and found inside a computer and accessories, which were
immediately identified by their serial numbers as property stolen
from Rockport High School on December 19, 1983.
All three men were placed under arrest and advised of their rights.
[24 Mass.App.Ct.
338] At this point the defendant
said to Flynn: "As an attorney, I
advise you to say nothing to the police."
Flynn handed Inspector O'Keefe the keys to the car and asked O'Keefe to
"lock it up." As O'Keefe
secured the vehicle, he noticed a glassine bag, which appeared to contain
marihuana, protruding from the briefcase the defendant had left on the rear
seat of the car. The bag was also
seized. (FN1)
[1] 1. Motion to suppress. The stop of the automobile was clearly
justified because the police had "specific and articulable
facts" to warrant suspicion that the three men in the vehicle may have
been transporting stolen property. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968);
Commonwealth v. Ferrara, 376 Mass. 502, 504, 381 N.E.2d 141
(1978). The telephone tip (which had
indicia of coming from a person with inside knowledge of the breaks) (FN2) had
been "fortified through corroboration of its elements by means of police
investigation." Commonwealth v. Kaufman, 381 Mass. 301,
303, 408 N.E.2d 871 (1980). At the time
of the stop the police had seen a box capable of holding a computer being moved
by three men from a house which had been identified as a possible place where
stolen computer equipment had been secreted.
One of the men was injured. This
significant fact tended to corroborate evidence found at the scene of the
Rockport High School break‑in which indicated that someone involved in
that crime might have been injured. The
car, headed out of town, fit the characteristics of the type of vehicle used in
the Rockport break. Movement of the box
from the house to the car involved highly suspicious circumstances (furtive
glances, apparently designed to see if anyone was observing, movement of a
bulky object at night and in slippery conditions without extra lighting). These circumstances were indicative of
efforts to avoid detection.
[2] [24 Mass.App.Ct.
339] A valid Terry stop permits limited restraint of the individuals involved
as long as their detention is commensurate with the purpose of the stop.
Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct.
1319, 1325, 75 L.Ed.2d 229 (1985).
"Terry and Royer state a 'principle of
proportionality,' " Commonwealth v.
Borges, 395 Mass. 788, 794, 482 N.E.2d 314 (1985), that is, "[t]he
degree of intrusiveness on a citizen's personal security, including considerations
of time, space, and force, must be proportional to the degree of suspicion that
prompted the intrusion." Commonwealth v. Borges, 395 Mass. at
794, 482 N.E.2d 314.
[3] The
detention and inquiry here did not exceed reasonable bounds, as measured by the
information known and the purpose of the stop.
Only one uniformed officer initiated the stop. That officer obtained the usual
identification papers. A slight delay
followed while the officer in charge of the investigation arrived. Some questioning with respect to the contents
of the box was obviously in order as the purpose of the stop was to investigate
the possible transportation of specific stolen property. The questioning was preceded by Inspector O'Keefe's
identification of Dulong, observation of Dulong's injury, (FN3) and observation of the car as one
having characteristics of the type of vehicle used in the crime. The inquiry, which was reasonably brief,
produced inconsistent and incredible answers about ownership of the box. Up to that point in the stop,
Inspector O'Keefe was still involved in a reasonable Terry ‑type inquiry.
However, at that point, because of his prior knowledge of the crime and
the evasive answers, Inspector O'Keefe acquired probable cause to arrest the
three men and to seize the box. See Commonwealth v. Riggins, 366 Mass. 81,
88, 315 N.E.2d 525 (1974) ( "Implausible answers to police questions will,
with other facts, support a finding of probable cause ... as will peculiar
behavior and evasive replies"). See
also Commonwealth v. Corridori,
11 Mass.App.Ct. 469, 478, 417 N.E.2d 969 (1981);
Commonwealth v. Ceria, 13 Mass.App.Ct.
230, 234, 431 N.E.2d 608 (1982). As a
consequence, everything that occurred thereafterbecomes [24 Mass.App.Ct.
340] academic: probable cause existed to justify the
defendant's further restraint.
[4] The
motion judge also concluded that Flynn consented to the opening of the box and
examination of its contents. She found
as follows: "[T]here is simply no
evidence that the police in any way threatened or coerced Flynn. Nor were the circumstances of the stop so
inherently coercive that they vitiated Flynn's consent. Instead, I find that Flynn suspected that the
police knew something was amiss, but, not knowing how much the police knew, he
attempted to feign innocence and hoped in that way to defend against the
charges." The judge's observations
are to be evaluated in light of the fact that the defendant, a lawyer, was
present to give Flynn advice and had warned Flynn earlier that he (the
defendant) would speak for him and that Flynn "shouldn't consent to a
search of the vehicle." We think
that the judge's finding that Flynn had given his valid consent to the opening
of the box, in the apparent hope that he could bluff his way out of his
predicament, is a tenable conclusion.
See Commonwealth v. Cantalupo, 380 Mass. 173, 177, 402 N.E.2d 1040
(1980). It is therefore unnecessary to
consider the possibly more difficult question whether the police could have
opened the box and examined its contents without first seeking a warrant. See the discussion of the scope of searches
of closed containers found in automobiles appearing in 3 LaFave,
Search and Seizure § 7.2 (2d ed. 1987) and Smith, Criminal Practice and
Procedure § 269 (2d ed. 1983). (FN4)
[24 Mass.App.Ct.
341] 2. Alleged errors at the trial.
The defendant's claims of error as to certain matters at trial and the
effectiveness of his trial counsel's representation do not present issues of
great substance.
[5] (a)
The defendant maintains that testimony by two prosecution witnesses that other
items of stolen property had been discovered in the apartment occupied by the
defendant's father at 23 Eaton Street prejudiced him by unfairly accusing him of participation in other crimes. See
Commonwealth v. Tobin, 392 Mass. 604, 615‑616, 467 N.E.2d 826
(1984). "Evidence of other crimes
is clearly not admissible for the purpose of proving bad character or a
propensity to commit crimes. If,
however, such evidence is relevant for some other purpose, it is not rendered
inadmissible merely because it indicates the possible commission of another
offense." Commonwealth v. Bradshaw, 385 Mass. 244,
269, 431 N.E.2d 880 (1982) (citations omitted).
The testimony was introduced for the limited purpose of showing that the
defendant knew that the box taken from his father's apartment and seized in the
stop of the car contained stolen computer equipment. Thus, the evidence had relevance to the issue
of the defendant's knowledge, which was the central issue at trial. There was an adequate foundation for the
trial judge to make a preliminary finding that admission of the evidence could
warrant a jury inference that the defendant was aware of the stolen computer
equipment in his father's apartment. The
admission of the evidence met the criteria established by cases such as Commonwealth v. Murphy, 282 Mass. 593,
598, 185 N.E. 486 (1933), and Commonwealth[24 Mass.App.Ct. 342] v. Baker, 368 Mass.
58, 85‑86, 330 N.E.2d 794 (1975).
After considering the evidence, "[w]e cannot say that the trial
judge abused his discretion in concluding that [the] testimony ... was more
probative than prejudicial." Commonwealth v. Imbruglia,
377 Mass. 682, 695, 387 N.E.2d 559 (1979).
[6] (b) We
discern nothing improper in the prosecutor's final argument. The prosecutor's remarks about what
transpired at the questioning during the stop of the car were permissible
comment on the evasive and inconsistent answers given by the three men and the
inherent weakness of the defendant's case.
See Commonwealth v. Belton,
352 Mass. 263, 270, 225 N.E.2d 53, cert. denied, 389 U.S. 872, 88 S.Ct. 159, 19 L.Ed.2d 153 (1967); Commonwealth v. Porter, 15 Mass.App.Ct. 331, 335‑336, 445 N.E.2d 631
(1983). The prosecutor also argued as
follows: "[I]t could have all ended
right then and there. There could have
been an adequate explanation. There
could have been more information provided.
But it wasn't." These
comments were not an attempt to subvert the defendant's right to remain
silent. Read in context, the "then
and there" referred to the initial inquiry prior to the arrest, and the
"adequate explanation" pertained to the inherent weakness of the
answers given to the police.
Nor do we
view the vague remark by the prosecutor on one aspect of the defendant's trial
testimony as implying that the defendant had other witnesses he was afraid to
call. The remark stayed within the
bounds of the evidence produced at the trial and suggested (properly) that the
defendant's testimony may have been fabricated.
(FN5)
[7] (c)
"The question of effectiveness of counsel is a practical, not a
theoretical one." Commonwealth v. Schlieff,
5 Mass.App.Ct. 665, 668, 369 N.E.2d 723 (1977). The record shows that the defendant was
furnished with competent representation throughout the trial. His trial counsel's stipulation that the
computer equipment [24 Mass.App.Ct. 343]
found in Flynn's car (and other computer equipment and typewriters found in the
defendant's father's apartment) were in fact stolen represented a tactical
decision designed to focus the trial on the single issue disputed by the
defense‑‑whether the defendant knew that the computer equipment
taken from Flynn's car had been stolen.
The fact that the police had learned after the trial that one typewriter
found in the apartment might not have been stolen does not make trial counsel's
decision to enter into the stipulation unreasonable. The defendant has failed to establish either
prong of the test for establishing ineffectiveness of trial counsel. See
Commonwealth v. Saferian, 366 Mass. 89, 96, 315
N.E.2d 878 (1974).
Judgment affirmed.
Order denying motion for new trial affirmed.
(FN1.) The defendant was subsequently charged
with possession of marihuana as a result of that seizure. He entered a guilty plea to the charge, and
his conviction of that offense is not involved in this appeal.
(FN2.)
The tip specifically identified the addresses where the Modicas
lived and implied personal knowledge that stolen goods might soon be moved from
one of the addresses.
(FN3.)
The fact that there was some evidence that Dulong did
not receive his injury in the break is not of great relevance. That evidence was not known to the
police. In considering the
reasonableness of the police action, we consider only what was known at the
time of the stop. See Commonwealth v. Thibeau,
384 Mass. 762, 764, 429 N.E.2d 1009 (1981).
(FN4.)
What has been said disposes of the defendant's general argument that the
episode involved an arrest without the existence of antecedent probable
cause. The other considerations which
the defendant points to as establishing an arrest (rather then a valid Terry inquiry that evolved into
probable cause for an arrest) do not persuade us to his point of view. (a) The presence of extra police came about
as the result of coordination between surveillance personnel watching two
houses. (b) The closing in of the car,
while a fact to be considered, is not necessarily "incompatible with a Terry inquiry or equivalent to an
arrest." Commonwealth v. Blake, 23 Mass.App.Ct. 456, 461, 503 N.E.2d 467 (1987), and cases
cited. (c) Flynn and the defendant were
asked to step out of the car only after probable cause for their arrest
existed. (d) Testimony by Inspector
O'Keefe to the effect that Flynn was not free to leave represented O'Keefe's
intention to complete a preliminary inquiry of the person who appeared to
control the box before allowing that person to go. The testimony is not inconsistent with the
intrusion permitted by the circumstances of the stop. (e) That the motion judge chose to accept
Inspector O'Keefe's version of the events on key matters, including the time of
giving Miranda warnings, reflects her considered choice as the factfinder, probably on an assessment that the other officers
who testified had not been directly involved in the inquiry after the
stop. (f) The present case distinctly
contrasts with the principal cases relied upon by the defendant, such as Commonwealth v. Bacon, 381 Mass. 642,
411 N.E.2d 772 (1980), in which an unsubstantiated hunch was held insufficient
to satisfy the standard necessary for a
Terry stop, and cases such as
Commonwealth v. Loughlin, 385 Mass. 60, 430
N.E.2d 823 (1982), and Commonwealth v.
Sanderson, 398 Mass. 761, 500 N.E.2d 1337 (1986), in which proper stops
calling for very limited inquiries were turned into unlawful arrests by reason
of lengthy and intrusive detentions.
(FN5.) There
was no instruction by the judge concerning the drawing of inferences from the
fact that certain witnesses had not been called. Compare
Commonwealth v. Franklin, 366 Mass. 284, 294, 318 N.E.2d 469 (1974). Instead, the judge instructed the jury: "Keep in mind, again, as we have said
from the outset and sometimes we repeat to the point of boring you, the evidence
in this case is [what] you heard on the stand."