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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Nelson, 26 Mass.App.Ct.
794 (1989)
Appeals Court of Massachusetts,
No. 88‑P‑212.
Argued
Decided
Sharon B. Soffer, Asst.
Dist. Atty.,
Brian F. Gilligan,
Before GREANEY, C.J., and ARMSTRONG and WARNER, JJ.
WARNER, Justice.
This is
the Commonwealth's appeal from the dismissal before trial by a Superior Court
judge of certain indictments charging the defendants with drug and firearm
offenses. See Mass.R.Crim.P.
15(b)(1), 378
We draw
the essentially undisputed facts from the transcripts of the hearings before
the judges and the memoranda of decision of the first judge. A search warrant for an apartment in Mattapan
issued from the Dorchester District Court on the basis of an affidavit which
recited that a confidential informant had been in the apartment on a number of
recent occasions and had seen one "Willie" (whose physical
appearance the informant described) exchange cocaine for money with persons who
came to the apartment door. The
detective who made the affidavit said that his own surveillance revealed a
number of people, some of whom he believed had been involved with drugs, enter
and exit the building in which the apartment was located within a short period
of time; the detective did not observe
any occupant of the apartment.
On June 7,
1986, when the police entered the apartment to execute the search warrant they
were confronted by the defendants Cline and Nelson with drawn handguns; the guns were dropped. While the police were in the apartment, the
defendant Farrell, using a key, entered.
Here, the testimony was conflicting.
A police officer said that Farrell stated that he lived in the
apartment, which was his sister's.
Farrell testified that he told the police that he came only to pick up
some belongings of his sister.
(FN2) There was other inconsistent
evidence regarding Farrell's residence.
The search of the apartment turned up a handgun, drugs, drug
paraphernalia, cash and the title and registration to an automobile in
Farrell's name. No drug was found on the
person of any defendant.
Thereafter,
each defendant was indicted for unlawful possession of firearms, trafficking in
cocaine and conspiracy to traffic in cocaine.
In the conspiracy indictments, the three defendants were named as the
coconspirators. In a bill of
particulars, the Commonwealth identified the three defendants and
"Willie" as joint venturers and
coconspirators in the cocaine charges.
[26 Mass.App.Ct.
796] The defendants moved to compel
the Commonwealth to identify the confidential informant. The first judge, in a memorandum of decision,
noted the uncertainty of the evidence with respect to Farrell's association
with the apartment and the similarities in Farrell's physical appearance and
that of "Willie," as described by the informant. (FN3)
As to the defendants Cline and Nelson, the judge observed that they
claimed to have been in California at the time the alleged drug transactions
were observed by the informant and thus his identity was essential to their
defense. The judge denied the motion,
without prejudice, on the condition that the Commonwealth arrange for a
photographic array containing pictures of the defendants to be presented to the
informant; the purpose was to determine
whether the informant would identify any of the defendants as
"Willie." After this procedure,
the judge said, the defendants could again move for disclosure if they could
show compelling need.
The
informant could not be located by the police, and the defendants again brought
the question of disclosure before the first judge. In her second memorandum of decision, the
judge noted that the defendants' concern that a jury might infer that Farrell
was "Willie" had been ameliorated by the Commonwealth's willingness
to stipulate to the contrary. She added,
however, that the argument for disclosure had been enhanced by the inclusion of
"Willie" as a coconspirator, as it would be necessary to defend
against a charge involving an unknown person.
The judge ordered the Commonwealth to disclose the identity of the
informant within fourteen days. (FN4)
[26 Mass.App.Ct.
797] The Commonwealth failed to
disclose the identity of the informant, and the defendants filed a motion to
dismiss the indictments. After hearing
before a second Superior Court judge, all indictments were
ordered dismissed except those for firearms violations involving the handguns
in the possession of Cline and Nelson when the police entered the
apartment. The judge reasoned that the
informant could provide relevant testimony that "Willie" was not one
of the defendants and that evidence would tend to exonerate them on the
question whether they had a possessory interest in
the apartment or the drugs. (FN5)
[1] On the
basis of the somewhat confused and unfocused proceedings in the Superior Court,
we must determine the correctness of the determination of the inapplicability
of the government's privilege not to disclose the identity of an
informant. The privilege "has long
been recognized in this Commonwealth." Commonwealth v. Douzanis,
384 Mass. 434, 441, 425 N.E.2d 326 (1981).
It "serves a substantial, worthwhile purpose in assisting the
police in obtaining evidence of criminal activity." Ibid. The privilege is not absolute, however, and
its application is governed by fundamental considerations of fairness. See Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957); Commonwealth v. Douzanis, supra.
"Where the disclosure of an informer's identity, or of the contents
of his communication, 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. In these situations the trial court
may require disclosure and, if the Government withholds the information,
dismiss the action" (footnotes omitted). Roviaro
v. United States, supra, 353 U.S. at 60‑61, 77 S.Ct.
at 627‑628. "The problem [of
application of the privilege] 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 [ ] disclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime charged, the
possible defenses, the possible significance of the informer's testimony, [26 Mass.App.Ct.
798] and other relevant
factors." Id. at 62, 77 S.Ct. at 628‑629.
See Commonwealth v. Swenson,
368 Mass. 268, 277, 331 N.E.2d 893 (1975).
(FN6)
[2] The
following outline of the Commonwealth's case and the defendants' defense
surfaces from the limited record before us. The defendants were charged with conspiracy to
traffic and trafficking in cocaine, the latter involving a theory of joint
venture. They were also charged as joint
venturers in the unlawful possession of a
firearm. The cocaine and related
incriminating evidence were found in a safe and the gun in a bedroom in the
apartment. The case on any of the
charges against Cline and Nelson will rest on their presence in the apartment
with drawn guns when the police entered.
The case against Farrell will depend on the method of his entry into the
apartment and conflicting evidence of his association with it. (FN7)
Thus, the cases against all of the defendants (however they are tried,
see Mass.R.Crim.P. 9(e), 378 Mass. 861 [1979] ) will
require, in part, proof beyond a reasonable doubt that one or more of the
defendants had constructive possession of the cocaine or the gun. The defendants argue that in this context the
informant's identity would be relevant and helpful because the informant's
testimony would establish that (1) none of the defendants is the
"Willie" whom the informant observed in the apartment, and (2) none
of the defendants was seen by the informant during his observations of cocaine
dealing in the apartment. At the very
least, the defendants contend, this evidence would help to create a reasonable
doubt in the minds of a jury with respect to the question of constructive
possession.
The
Commonwealth counters that the force of the defendants' argument is lost
because the Commonwealth had stipulated that the defendants "were not the
guys there"‑‑that none of the defendants is the
"Willie" whom the informant [26
Mass.App.Ct. 799]
saw selling drugs from the apartment.
(FN8) The Commonwealth's
stipulation, however, does not go far enough.
At the trial on any of the charges against the defendants, neither the
affidavit nor any of the hearsay information in it could be introduced by the
Commonwealth or by the defendants over objection. The Commonwealth's stipulation, even if
reduced to writing and in clear terms that the informant did not observe any of
the defendants in the apartment at the times "Willie" allegedly had
been seen selling cocaine, would be probably confusing (perhaps dangerously so
for the defendants, by introducing otherwise unexplained prior drug dealing
from the apartment) to a jury which had no knowledge of the affidavit
allegations as to the informant's observations.
We think
consideration should be given to whether a proper balance between the public
interest in upholding the government's privilege and the rights of the
defendants to a fair trial would be struck by a more carefully crafted and
expanded stipulation by the Commonwealth.
Such a stipulation (if possible on the facts known to the Commonwealth)
could state not only that none of the defendants is "Willie" or was
present at the times of the informant's observations but also that the relation
of those observations in the search warrant could be read to the jury or, in
the discretion of the judge, a redacted version of the affidavit could be
introduced in evidence. The defendants
will not be heard to object to the affidavit portion of the stipulation, as
this would provide part of the very information which they seek by revelation
of the identity of the informant.
In applying
the balancing test, the judge may also consider whether there would be any
unfairness to the defendants in the failure to disclose the identity of the
informant which may be related to the naming of "Willie" as an unindicted coconspirator in the bill of particulars. This question should be reviewed in [26 Mass.App.Ct.
800] light of any stipulation made
by the Commonwealth and the suggestion (by the first judge, see note 4, supra,
and, at oral argument, by the Commonwealth) that nolle
prosequis of the conspiracy indictments would
eliminate any potential unfairness.
(FN9)
The order
dismissing the indictments is vacated, and the matter is remanded to the
Superior Court for further proceedings consistent with this opinion. The Commonwealth has the burden of going
forward. If it does not do so within
sixty days of the issuance of the rescript from this
court, the order of dismissal shall be reinstated.
So
ordered.
(FN1.) Four of the companion cases are against
Nelson, five are against Charles Farrell and five are against Robert Cline.
(FN2.)
Farrell said that his sister and her husband, Willie Thompson, and their two
children had resided in the apartment until the couple separated in April of
1986.
(FN3.)
The physical description of Willie Thompson (see note 2, supra), as reported by
his wife (Farrell's sister), closely resembles that of "Willie," as
reported by the informant.
(FN4.)
The judge mentioned an alternative of a nolle prosequi of the conspiracy indictment. We are not certain what was meant in this
respect. "Willie" was an unindicted coconspirator with the three defendants. His name appeared only in the Commonwealth's
bill of particulars. In any event, the
Commonwealth took no action regarding the conspiracy indictments prior to the expiration
of the time within which it was ordered to disclose the identity of the
informant.
(FN5.)
The Commonwealth's case on the merits of the cocaine charges would be based
both on theories of joint venture and constructive possession.
(FN6.)
For the different considerations and procedures in cases involving a claim that
a search warrant affidavit contains intentional or reckless misstatements, see Commonwealth v. Douzanis,
384 Mass. 434, 425 N.E.2d 326 and
Commonwealth v. Abdelnour, 11 Mass.App.Ct.
531, 534‑537, 417 N.E.2d 463 (1981).
(FN7.)
There is suggestion in the record that others came to the apartment door and
were questioned by the police and then allowed to leave. We know nothing further of the circumstances.
(FN8.)
On appeal, the defendants characterize the prosecutor's statements as
"mere promises to stipulate."
In any event, in these circumstances, the Commonwealth would be held to
its promises. Cf. Commonwealth v. Benton, 356 Mass. 447, 448, 252 N.E.2d 891 (1969);
Commonwealth v. Spann, 383 Mass. 142, 145, 418 N.E.2d 328 (1981).
(FN9.) The
question whether a defendant may be convicted of conspiracy with one who is
unnamed is not presented in this appeal.
But see United States v. Fusaro, 708 F.2d 17, 21 (1st Cir.1983); Nolan & Henry, Criminal Law § 448, at 344
(1988); Model Penal Code § 503(2) (1962,
published 1985); Torcia,
Wharton's Criminal Law, § 733, at 553 & n. 22 (14th ed. 1981). Mass.App.Ct.,1989.