|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Montanez, 410
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Neila J. Straub,
Michael Fabbri, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN,
LYNCH, O'CONNOR and GREANEY, JJ.
LYNCH, Justice.
The
defendant, Rufino Montanez, was convicted of distribution of cocaine (second
offense) and trafficking in cocaine in violation of G.L. c. 94C, §§ 32A (b ), 32E (b )(2) (1988 ed.).
(FN1) The judge sentenced him to
from nine to ten years on the distribution charge and from fourteen to fifteen
years on the trafficking charge, the sentences to be served consecutively at
the Massachusetts Correctional Institution at Cedar Junction. The defendant appealed, arguing that the
judge erred in: (1) denying his motion
for a new trial on the ground of ineffective assistance of counsel; (2) denying his motion to suppress certain
evidence; (3) denying his motion to
sever the two charges for separate trials;
and (4) denying his motion for a required finding of not guilty on the
trafficking charge. We transferred the
case to this court on our own motion, and we now affirm.
[410
On
The
warrant was executed on the evening of
On April
5, 1989, the evening before trial was to begin, the defendant, trailed by a
Woburn police officer, went to an airline terminal at Logan International
Airport in Boston. There the officer
approached the defendant, who was standing with a brown suitcase at the ticket
counter. The clerk at the counter gave
the officer the ticket that he was processing at the time, a one‑way
ticket to Puerto Rico issued in the name Rafael Lindt. The flight was scheduled to leave that
night. The officer observed various
articles of men's clothing in the brown suitcase when a woman accompanying the
defendant opened it to remove certain items.
The officer arrested the defendant, placed the suitcase in the police
cruiser, and left with the defendant and the woman. The suitcase was admitted in evidence over
the defendant's objection.
1. Ineffective assistance of counsel. The defendant claims that the judge
improperly denied his motion for a new trial based on ineffective assistance of
counsel. He points to three purported
shortcomings in his attorney's performance:
(1) counsel's failure to investigate a simultaneous search of another
resident of the defendant's apartment building;
(2) counsel's failure to seek suppression of the brown suitcase seized
at the airport; and (3) counsel's
failure to present mitigating factors at sentencing and to request concurrent
sentences. We reject the first two
claims on procedural and [410 Mass.
294] substantive grounds, and the
third on procedural grounds only.
[1] The
defendant's claims of ineffective assistance are barred as a procedural matter
because the defendant failed to raise these arguments in a timely fashion. (FN3)
A procedural chronology is in order.
Several months after his trial, the defendant moved for a new trial,
pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), on the ground of
ineffective assistance. The motion was
denied on April 2, 1990. The defendant
moved for reconsideration of the motion for a new trial on May 8, 1990. The motion for reconsideration was denied on May 14, 1990.
The defendant then appealed both rulings on June 7, 1990.
Upon the
denial of the motion for a new trial on April 2, the defendant was permitted
thirty days to file either an appeal, Mass.R.A.P. 4(b), as amended, 378 Mass.
928 (1979), or a motion for reconsideration. Commonwealth v. Cronk, 396 Mass. 194,
197, 484 N.E.2d 1330 (1985). (FN4) The defendant filed his motion for
reconsideration thirty‑six days later, on May 8, and his appeal more than
sixty days later, on June 7. In
addition, the defendant has made no showing of "good cause" that
might justify our extending the thirty‑day deadline. Mass.R.A.P. 14(b), as amended, 378 Mass. 939
(1979). Thus, the defendant's motion for
reconsideration and his appeal from the denial of the motion for a new trial
are time barred. (FN5)
[2]
Nevertheless, we address the merits of the defendant's claims. We discuss the first claim because we reject
it for [410 Mass. 295] substantive as well as procedural
reasons. In addition, we note that the
defendant raises the second and third claims for the first time on this
appeal. Because these claims have not
been adjudicated, the trial judge may consider them on a second motion for a
new trial or resentencing under Mass.R.Crim.P. 30(b). Therefore, we express our view of the second
and third claims, although they are not properly before this court, in order to
guide the trial judge should the defendant elect to raise them again in a rule
30(b) motion for postconviction relief.
(FN6)
The
standards governing claims of ineffective assistance of counsel are well
established. The defendant must
demonstrate that his attorney's performance fell "measurably below that
which might be expected from an ordinary fallible lawyer" and that
counsel's conduct "has likely deprived the defendant of an otherwise
available, substantial ground of defence." Commonwealth v. Saferian,
366 Mass. 89, 96, 315 N.E.2d 878 (1974).
See Commonwealth v. Satterfield,
373 Mass. 109, 115, 364 N.E.2d 1260 (1977) (requiring a "showing that
better work might have accomplished something material for the
defense"). Where the defendant
challenges counsel's tactical or strategic decisions, he must establish that
such decisions are not merely unreasonable, but "manifestly
unreasonable," Commonwealth v.
Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978), in order that we may
"avoid characterizing as unreasonable a defense that was merely
unsuccessful." Commonwealth v. White, 409 Mass. 266,
272, 565 N.E.2d 1185 (1991). (FN7) The defendant's claims do not meet these
tests.
[3] [410 Mass. 296] The defendant argues, first, that counsel's failure to
investigate the arrest of one of the defendant's neighbors constituted
ineffective assistance. Simultaneous
with the search of the defendant's second‑floor apartment, the police,
pursuant to a warrant, conducted a search of a third‑floor apartment in
the same building. The search revealed
cocaine, and the neighbor was arrested.
The defendant claims that he informed his lawyer of these facts, but
that his lawyer failed to investigate the lead further. Noting that the neighbor also had access to the ceiling in the common
hallway on the second floor, the defendant suggests that counsel's omission
constitutes ineffective assistance in that it deprived him of the defense that
the cocaine hidden in the ceiling belonged not to the defendant, but to the
neighbor. We disagree.
If we
assume for purposes of analysis that counsel's decision not to investigate the
neighbor's arrest was "manifestly unreasonable" (though we do not so
decide), the defendant clearly was not prejudiced thereby. The defendant suggests that, had counsel
obtained the affidavit and return attached to the warrant authorizing the
search of the neighbor's apartment, he would have learned that the neighbor was
also known to sell cocaine and that cocaine packaged in paper folds was found
in the neighbor's apartment. The
persuasive value of this evidence, however, is negligible. The discovery of paper folds in the
neighbor's apartment carries little weight given the fact that similar paper
folds were discovered in the defendant's apartment, considerably closer to
where the cocaine was hidden. In
addition, the revelation that the neighbor was known as a cocaine dealer,
according to a confidential informant cited in the affidavit, was critically
flawed: in form, because the information
was inadmissible hearsay and, in substance, because the same informant alleged
that the neighbor "got a lot of his cocaine from [the
defendant]." Even if counsel had
found a way to overcome the admissibility problems, he undoubtedly would not
have offered that evidence at the risk of revealing the defendant's role as the
neighbor's supplier.
[4] [410 Mass. 297] Further, the argument that counsel's omission was prejudicial to
the defense suffers from a more fundamental defect‑‑counsel did in
fact introduce evidence similar to that contained in the warrant
application. On cross‑examination
of two police officers, counsel brought out the fact that the police conducted
drug investigations of another resident of the defendant's building. Thus, the record does not support the
defendant's claim that counsel's alleged failure to investigate the neighbor's
arrest deprived him of "an otherwise available, substantial ground of
defense." Saferian, supra. (FN8)
The
defendant's second claim of ineffective assistance stems from counsel's failure
to move for suppression of the brown suitcase found in the defendant's
possession at the airport on the eve of trial.
Again, even if counsel's failure to
[410 Mass. 298] make such a
motion was "manifestly unreasonable" (which we do not determine), the
defendant suffered no prejudice as a result of counsel's
omission. (FN9) Evidence of flight is properly admitted to
prove consciousness of guilt. Commonwealth v. Toney, 385 Mass. 575,
583, 433 N.E.2d 425 (1982). In this
case, both the testimony of the officer who followed the defendant to the
airport and the plane ticket itself were admitted as evidence of flight. Therefore, we conclude that there was
sufficient convincing, uncontradicted evidence of flight that counsel's
decision not to contest the admission of the suitcase was not prejudicial to
the defendant.
[5] Finally,
the defendant argues that counsel's performance was deficient in that he failed
to present certain mitigating factors at the defendant's sentencing or to argue
for concurrent sentences. At the
sentencing, counsel noted only that the defendant "has two children [whom]
he has been supporting" and "has worked many years in Woburn where
his roots are." Counsel failed to
mention the defendant's involvement in various community groups and did not elaborate
on relevant points in the defendant's work or family history. See
Commonwealth v. Lykus, 406 Mass. 135, 145‑146, 546 N.E.2d 159
(1989). The Commonwealth suggests that
counsel described these factors to the judge only a few days before sentencing,
at a hearing on a motion for a review of bail, and that it would have been
redundant to repeat them. See Commonwealth v. Mamay, 407 Mass. 412,
425, 553 N.E.2d 945 (1990). Counsel's
comments at the prior hearing, however, were scarcely more detailed. More importantly, counsel never requested
concurrent rather than consecutive sentences.
See Lykus, supra, 406 Mass. at
146, 546 N.E.2d 159; Osborne v. Commonwealth, 378 Mass. 104,
113, 389 N.E.2d 981 (1979). Counsel's
performance in this regard was deficient, and we cannot conclude that his
performance did not affect the judge's sentencing decision.
We
conclude, therefore, that the defendant's claim of ineffective assistance at
the sentencing, alone among the grounds
[410 Mass. 299] he advances, has
merit. Because the defendant's appeal is
time‑barred, however, we do not decide this issue. We offer our view of the evidence only to
guide the trial judge should the defendant elect to bring a second motion for a
new trial or for resentencing.
2. Denial of the motion to suppress evidence. The defendant claims error in the denial of
his motion to suppress evidence seized during the search of his apartment and
the adjoining hallway. He contends that
the affidavit in support of the search warrant, which relied in part on
information supplied by confidential informants, failed to set forth sufficient
facts to support a finding of probable cause.
He further suggests that the search of the hallway exceeded the scope of
the search warrant. Neither argument
succeeds.
[6] a. The
search warrant affidavit. In Commonwealth v. Upton, 394 Mass. 363,
374‑376, 476 N.E.2d 548 (1985), we held that, under art. 14 of the
Declaration of Rights of the Massachusetts Constitution, the determination
whether an affidavit that incorporates information supplied by unnamed informants
establishes probable cause is governed by the principles developed under Aguilar v. Texas, 378 U.S. 108, 84
S.Ct. 1509, 12 L.Ed.2d 723 (1964), and
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637
(1969). Thus, such an affidavit must
inform the magistrate of "(1) some of the underlying circumstances from
which the informant concluded that the contraband was where he claimed it was
(the basis of knowledge test), and (2) some of the underlying circumstances
from which the affiant concluded that the informant was 'credible' or his
information 'reliable' (the veracity test)" (citation omitted).
Upton, supra, 394 Mass. at 375, 476 N.E.2d 548. If the informants' tips do not satisfy both
elements of the Aguilar‑ Spinelli
test, other statements in the affidavit that corroborate the tips may support a
finding of probable cause. Id.
The affidavit in this case satisfies the Aguilar‑ Spinelli standard.
[7] The
affidavit relied on two confidential informants. According to the affidavit, both informants
saw the defendant sell cocaine from his apartment on several occasions. In fact, one informant had himself bought
cocaine from the defendant,[410
Mass. 300] and the other had watched the defendant sell
cocaine within days of the submission of the affidavit. Because the informants' knowledge was based
on personal observations, the "basis of knowledge" prong of the Aguilar‑ Spinelli test was
satisfied. Commonwealth v. Valdez, 402 Mass. 65, 70,
521 N.E.2d 381 (1988).
[8][9][10]
The affidavit also established the informants' credibility in a number of
ways. The first informant, according to
the affidavit, had provided information that led to the conviction of two named
men for distribution of cocaine. This
assertion was sufficient to support a magistrate's conclusion that the first
informant was reliable. Commonwealth v. Amral, 407 Mass. 511,
515, 554 N.E.2d 1189 (1990). The second
informant had assertedly provided information leading to the arrest (but not
the conviction) of two others for distribution of marihuana. This information without more would not
establish the second informant's reliability. Commonwealth v. Rojas, 403
Mass. 483, 486, 531 N.E.2d 255 (1988).
The second informant's story, however, was substantially corroborated by
the police officers' own observations.
The
affidavit related the February 6, 1988, undercover purchase of cocaine from the
defendant, and numerous details gathered by police officers during the
surveillance of the defendant. In
addition, the informant stated that, when the defendant was open for business,
his distinctive automobile would be parked outside the apartment building, a
lighted lamp would be set in a designated window, and a lookout would be
posted. The police observed the same
activity during their surveillance of the defendant. Thus police corroboration bolsters the second
informant's credibility. See Upton, supra 394 Mass. at 376, 476
N.E.2d 548. We hold, therefore, that
the informants' tips satisfied both prongs of the Aguilar‑ Spinelli standard, and that the affidavit contained
ample evidence to support the magistrate's finding of probable cause.
[11][12]
b.
The search of the hallway ceiling.
The defendant contends that, even if the search warrant was valid, the
officers' search of the area above the dropped ceiling in the common hallway
outside his apartment exceeded the scope of the warrant[410 Mass. 301] and was unlawful under the State and Federal
Constitutions. The defendant's claim
under the Fourth Amendment to the United States Constitution fails at the
outset because he lacks standing to raise the issue. United States v. Salvucci,
448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). This court, however, has recently decided
that, where possession is an essential element of the charge, a defendant has
standing to contest the search and seizure of evidence under the State
Constitution, even though the defendant did not have actual possession of it at
the time of the search. Commonwealth v. Frazier, 410 Mass. 235,
571 N.E.2d 1356 (1991).
[13][14][15]
When a defendant has standing under our rule for State constitutional purposes,
we then determine whether a search in the constitutional sense has taken place.
Commonwealth v. Frazier, supra at 244 n. 3, 571 N.E.2d 1356. This determination turns on whether the
police conduct has intruded on a constitutionally protected reasonable
expectation of privacy. See Sullivan v. District Court of Hampshire,
384 Mass. 736, 742, 429 N.E.2d 335 (1981); California v. Ciraolo, 476 U.S. 207, 211,
106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986), quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19
L.Ed.2d 576 (1967) (Harlan, J., concurring).
The measure of the defendant's expectation of privacy is (1) whether the
defendant has manifested a subjective expectation of privacy in the object of
the search, and (2) whether society is willing to recognize that expectation as
reasonable. See Ciraolo, supra; Commonwealth v. Mamacos, 409 Mass. 635, 638, 568
N.E.2d 1139 (1991); Commonwealth v. Panetti, 406 Mass. 230,
231,
547 N.E.2d 46 (1989). The defendant bears the burden of
establishing both elements. Mamacos, supra. In examining the expectation of privacy
question under art. 14, we do not necessarily reach the same result as under
Fourth Amendment analysis. Commonwealth v. Panetti, supra, 406
Mass. at 234, 547 N.E.2d 46.
[16][17]
Conceding for present purposes that the defendant may have had a subjective
expectation of privacy in the space above the hallway ceiling, we conclude that
that expectation was not reasonable. In
evaluating the reasonableness of an individual's expectation of privacy, we
look to a number of factors, including the character of the location involved.
Commonwealth v. Pina, 406 Mass. 540, 545, 549 N.E.2d 106
(1990). Thus, [410 Mass. 302] we
consider whether the defendant owned the place involved, Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65
L.Ed.2d 633 (1980); Commonwealth v. Mora, 402 Mass. 262, 265,
521 N.E.2d 745 (1988); whether the
defendant controlled access to the area,
Commonwealth v. D'Onofrio, 396 Mass. 711, 717, 488 N.E.2d 410 (1986); and whether the area was freely accessible to
others, Sullivan v. District Court of
Hampshire, supra. We have stated
that "an individual can have only a very limited expectation of privacy
with respect to an area used routinely by others." Id. See
Pina, supra, 406 Mass. at 544‑546, 549 N.E.2d 106;
D'Onofrio, supra. One writer
has suggested that "the fundamental inquiry is whether [the] practice, if
not subjected to Fourth Amendment restraints, would be intolerable because it
would either encroach too much upon the 'sense of security' or impose
unreasonable burdens upon those who wished to maintain that security." W.R. LaFave, Search and Seizure § 2.1(d), at
313 (2d ed. 1987). In this case, the
defendant neither owned nor controlled access to the hallway outside his
apartment. The hallway was a common
area, accessible to the public, that was freely and frequently used by people
other than the defendant. To permit the
police to make a warrantless intrusion into such an area does not encroach too
much on the public's sense of security or impose unreasonable burdens on it. See
Commonwealth v. Thomas, 358 Mass. 771, 773‑775, 267 N.E.2d 489 (1971)
(no legitimate expectation of privacy in cellar ceiling of apartment
building). That is not to say that the
police may seize evidence in common areas in all circumstances without fear of
intruding on constitutional restrictions.
If, for example, a tenant was permitted by lease or with the landlord's
agreement to store belongings in a locked container in the common area, the
tenant's expectation that the contents of such container could not be freely
examined by others would be reasonable.
Cf. United States v. Chadwick, 433 U.S. 1, 97
S.Ct. 2476, 53 L.Ed.2d 538 (1977). A
mailbox located outside an apartment in a common area would afford a tenant
similar protection. Of course these
examples are not all‑inclusive, but offered only in contrast to the
defendant's claim.
[410 Mass. 303] We conclude, therefore, that the defendant had no
constitutionally protected reasonable expectation of privacy in the area above
the hallway ceiling not leased or controlled by him nor subject to any agreement
or understanding with the landlord as to its use. The police conduct, therefore, did not
constitute a search in the constitutional sense. Consequently, it is unnecessary to reach the
defendant's arguments that the "search" exceeded the scope of the warrant.
3. Denial of the motion to sever. The defendant next contends that the judge
erred in denying his motion to sever the trials of the distribution and
trafficking indictments. He argues that
the distribution charge (stemming from the February 6, 1988, undercover
purchase) and the trafficking charge (stemming from the subsequent surveillance
and the evidence seized in the June 3, 1988, search) were unrelated, and that
he was unfairly prejudiced by the joinder.
We disagree.
Joinder is
governed by Mass.R.Crim.P. 9, 378 Mass. 859 (1979). Under rule 9(a)(3), the judge may join
"related offenses" for trial unless he determines that joinder would
not serve the interests of justice. Rule
9(a)(1) defines "related offenses" as those which "are based on the
same criminal conduct or episode or arise out of a course of criminal conduct or series of
criminal episodes connected together or constituting parts of a single scheme
or plan."
[18] The
determination whether joinder is appropriate is committed to the sound
discretion of the trial judge. See Commonwealth v. Todd, 394 Mass. 791,
794, 477 N.E.2d 999 (1985); Commonwealth v. Moran, 387 Mass. 644,
658, 442 N.E.2d 399 (1982). This court
has stated that joinder is appropriate where the offenses "constitute a
single line of conduct, grow out of essentially one transaction, and would be
proved by substantially the same evidence." Commonwealth v. Gallison,
383 Mass. 659, 671, 421 N.E.2d 757 (1981).
Severance is required, however, where these criteria are not satisfied
and the defendant would be prejudiced by the cumulative evidence of different
offenses.
Id. Applying these principles
to the facts of this case, we conclude that joinder was proper.
[19] [410 Mass. 304] The two offenses clearly are connected in a single course of
conduct. There was ample evidence to
support the Commonwealth's theory that the defendant continuously sold cocaine
from his apartment in the four months between the undercover purchase and the
search. In addition, evidence of the
February 6 undercover purchase would have been admissible in a trial on the
trafficking charge to establish the defendant's intent to distribute, an
essential element of the charge of trafficking in cocaine. G.L. c. 94C, § 32E(b ). See Commonwealth v. Hoppin, 387 Mass. 25, 33, 438 N.E.2d 820 (1982)
(evidence of other crimes admissible "when it tends to show a state of
mind, common scheme, plan, or method of action bearing on the crime
charged").
[20][21]
Further, the defendant has not met his burden of demonstrating prejudice
requiring severance. See Gallison, supra. This burden is not satisfied by a showing
merely that the defendant's chances for acquittal would have been better had
the two indictments been tried separately. Id. 383 Mass. at 672, 421 N.E.2d
757. Rather, the defendant must
establish that "the prejudice resulting from a joint trial is so
compelling that it prevents [the] defendant from obtaining a fair trial."
Commonwealth v. Moran, 387 Mass. 644, 658, 442 N.E.2d 399
(1982). In this case, however, there was
substantial evidence to support both charges, and no indication that the jury
inappropriately applied evidence of one charge toward the other. It is also relevant that the judge instructed
the jury to consider the two indictments separately. There is no indication in the record that
this instruction was inadequate to offset any possible prejudice from the
joinder. See Gallison, supra, 383 Mass. at 671, 421 N.E.2d 757.
There was
no abuse of discretion in the judge's denial of the motion to sever.
4. Denial of the motion for required finding
of not guilty. At the close of the
Commonwealth's evidence, the defendant moved for a required finding of not
guilty on the trafficking [410 Mass.
305] indictment. (FN10)
The defendant argues that the judge improperly denied that motion. The judge's ruling was not in error.
The
standard of review on the denial of a motion for a required finding of not
guilty is "whether, after viewing the evidence in the 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 in original). Commonwealth v. Latimore,
378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979). See Commonwealth v. Colon‑Cruz, 408
Mass. 533, 545‑546, 562 N.E.2d 797 (1990). In this case, the Commonwealth presented
sufficient evidence to justify sending the indictment to the jury under this
standard.
[22] In
order to convict the defendant on the charge of trafficking in cocaine, the Commonwealth was required to prove that the
defendant knowingly or intentionally possessed twenty‑eight or more (but
less than 100) grams of cocaine with the intent to distribute the drug. See G.L. c. 94C,§ 32E(b )(2). The evidence of
these elements was strong, albeit circumstantial. The police discovered more than twenty‑nine
grams of cocaine as well as powder used to "cut," or dilute, cocaine
immediately outside the defendant's apartment door, hidden above the dropped
ceiling. In the same location, police
found smaller amounts of cocaine packaged in paper folds. A police officer testified that this method
of packaging was characteristic of the drug trade. Similar paper folds were found in the
defendant's apartment (though these did not contain cocaine), as well as $1,406
in cash on the defendant's person. There
was also expert testimony that the police officers' observations during the
surveillance of the defendant, as well as the amount and purity of the cocaine
discovered above the hallway ceiling, suggested that the defendant[410 Mass. 306] was engaged in the
distribution of cocaine. Finally, there
was the evidence of the defendant's attempt to flee on the eve of trial, from
which the jury could infer consciousness of guilt. Commonwealth v. Toney, 385
Mass. 575, 583, 433 N.E.2d 425 (1982).
The jury could have concluded from this evidence that the defendant
possessed the cocaine with the intent to distribute it. Cf.
Commonwealth v. Pratt, 407 Mass. 647, 651‑654, 555 N.E.2d 559
(1990). The Latimore standard does not require that the Commonwealth entirely
eliminate the possibility that someone other than the defendant could have
committed the crime. Commonwealth v. Casale, 381 Mass. 167,
175, 408 N.E.2d 841 (1980). The mere
possibility that one of the defendant's neighbors might have hidden the cocaine
in the hallway ceiling, therefore, is not enough to warrant a required finding
for the defendant. The judge did not err
in denying the motion for a required finding of not guilty.
Judgments affirmed.
(FN1.) The second offense element of the
distribution charge was based on the fact that the defendant had pleaded guilty
to the charge of possession of cocaine in 1987.
See G.L. c. 94C, § 32A(b
). The defendant elected to proceed
without the jury on this issue, which was tried before the trial judge after
the jury returned guilty verdicts on the two indictments before them.
(FN2.)
A police officer testified that the bag contained 29.51 grams of 86‑91%
pure cocaine.
(FN3.)
The Commonwealth does not contest the timeliness of the defendant's remaining
claims.
(FN4.)
Under Cronk, supra, quoting United States v. Cook, 670 F.2d 46, 48
(5th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982),
a motion for reconsideration must be brought within a "reasonable
time," which, in criminal matters, is construed as the period allocated
for noticing an appeal. Rule 4(b)
requires that such appeals be filed within thirty days.
(FN5.)
This case does not present the situation in which a motion for reconsideration timely filed may stop the appeal period
from running until the motion is denied.
See Commonwealth v. Powers, 21
Mass.App.Ct. 570, 573, 488 N.E.2d 430 (1986), quoting United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50
L.Ed.2d 8 (1976).
(FN6.)
We are precluded from resolving these claims more definitively under G.L. c.
211, § 3 (1988 ed.), while this remedy remains open to the defendant.
(FN7.)
The defendant bases his claims of ineffective assistance of counsel on both the
State and Federal Constitutions. We have
stated that, if the Saferian test is
met, then the requirements of the Federal Constitution are necessarily
satisfied as well. See Commonwealth v. Haggerty, 400 Mass.
437, 438 n. 2, 509 N.E.2d 1163 (1987); Commonwealth v. Fuller, 394 Mass. 251,
256 n. 3, 475 N.E.2d 381 (1985).
Therefore, we analyze the defendant's claims under the Saferian standard only.
(FN8.)
The defendant also argues that the prosecutor's failure to produce the warrant
application in response to a discovery request violated his right to a fair
trial under the Federal and State Constitutions. Ordinarily the prosecution is required to
disclose exculpatory, material evidence to the defense. Commonwealth v. Gregory,
401 Mass. 437, 441, 517 N.E.2d 454 (1988).
Assuming arguendo that the warrant papers contained exculpatory
evidence, see id. at 442, 517 N.E.2d
454, the question then becomes whether that evidence was "material."
Commonwealth v. Wilson, 381 Mass. 90, 107, 407 N.E.2d 1229
(1980). The definition of
"material" varies with the specificity of the defendant's discovery
request. In this case, the defendant
requested that the Commonwealth provide "any facts of an exculpatory
nature within the possession, custody, or control of the prosecutor,"
pursuant to the mandatory discovery requirement of Mass.R.Crim.P. 14(a)(1)(C),
378 Mass. 874 (1979). This request,
which merely recited the language of rule 14(a)(1)(C), was a general
request. Contrast Commonwealth v. Gallarelli, 399 Mass. 17, 20‑22, 502 N.E.2d
516 (1987) (request for all exculpatory material combined with more specific
requests for police reports held to be a specific request). Where the defendant's discovery request is so
broad, the test of materiality is whether the evidence in question
"creates a reasonable doubt that did not otherwise exist ... [when]
evaluated in the context of the entire record." United States v. Agurs, 427
U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976). Accord
Gregory, supra; Gallarelli, supra,
399 Mass. at 21, 502 N.E.2d 516. The
statements contained in the warrant papers do not meet this test. The jury were presented with evidence that
called into question the defendant's possession of the cocaine, including
testimony that another resident of the apartment building was the subject of
drug investigations. Thus, in view of
the fact that substantially similar evidence was presented at trial, we cannot
conclude that the information contained in the warrant papers might have
created "a reasonable doubt that did not otherwise exist." The prosecution, therefore, was not required
to produce this evidence on the facts of this case.
(FN9.)
We express no opinion as to the legality of the police officer's
"seizure" of the suitcase or the likelihood of success on a motion to
suppress it.
(FN10.) The judge accepted the motion on both
the distribution and trafficking charges.
On appeal, however, the defendant offers no argument that the evidence
on the distribution charge was insufficient to submit to the jury. Therefore that argument is waived. Mass.R.A.P. 16(a)(4), as amended, 367 Mass.
919 (1975). Commonwealth v. Bongarzone, 390 Mass.
326, 348, 455 N.E.2d 1183 (1983).