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Opinions of
The Massachusetts Supreme Judicial Court
and the Massachusetts
Court of Appeals
To be used in
conjunction with the CPS Criminal Procedure Textbook
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CPS
Commonwealth
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and the Law Office
of Patrick Michael Rogers
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Commonwealth v. Ortega, 59 Mass.
App. Ct. 217 (2003)
Bristol. May 13, 2003. - September 8, 2003.
Present: Grasso, McHugh,
& Mills, JJ.
The cases were tried before Catherine A. White, J.
Barry P. Wilson for the defendant.
Steven E. Gagne, Assistant District Attorney, for the Commonwealth.
GRASSO, J.
In this direct appeal from his conviction for
trafficking in heroin, see G. L. c. 94C, § 32E(c)(1), the defendant contends
that trial counsel was ineffective because he failed (1) to file a motion to
suppress evidence seized during execution of a no-knock search warrant and (2)
to call essential witnesses at trial. The defendant also maintains that the
prosecutor's redirect examination and closing argument created reversible error
and that the trial judge erred in denying his motion for a directed verdict.[1] We affirm.
Background. We recite the facts the jury could have
found in the light most favorable to the Commonwealth, reserving further
details for discussion in connection with the specific issues raised. Beginning
in early January, 1999, New Bedford
police Officer Troy Spirlet
began surveillance of the defendant at 280 Acushnet
Avenue, New Bedford. During
the next three weeks, Officer Spirlet observed the
defendant coming and going from the premises more than twenty-five times, often
using a key to gain entry. On some occasions, Officer Spirlet
followed the defendant from the premises to various locations and back to 280
Acushnet Avenue.
On February 5, 1999, Officer
Spirlet obtained a no-knock search warrant for apartment
3H at 280 Acushnet Avenue
that authorized the seizure of all drugs and materials related to the delivery
or distribution of controlled substances. Officer Spirlet
and three other officers executed the warrant the next day at approximately 8:00 A.M. Upon entry, they found the defendant,
along with Kelly Rodrigues and their young daughter.
When the defendant saw the police, he ran down the hallway into the bathroom.
After being subdued and handcuffed, the defendant indicated that he wished to
cooperate and motioned his head towards a shoebox on a shelf in the closet.
There the police found a large amount of heroin together with items commonly
used in drug operations including a stamp, a cutting agent, a sifter, glassine
packets, and small elastics. The police also seized 250 glassine packets of
heroin on a counter in the kitchen, twelve boxes of glassine packets, marijuana
in the refrigerator, and more than $1,000 in currency.
Also found were men's clothing and shoes, an envelope from the Registry of
Motor Vehicles addressed to the defendant at the Acushnet
Avenue address, other mail forwarded to him there,
and bank statements in the defendant's name. At the time of the search, the
defendant told the police that he lived at the apartment. Upon release from
custody, the defendant signed a bail recognizance that listed 280
Acushnet Avenue as his residence.[2]
1. Ineffective assistance of counsel.
a. The failure to file a motion to suppress. The defendant maintains that
counsel's failure to file a motion to suppress the drugs seized amounts to
ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). Specifically, he contends that probable cause to dispense with
the common-law knock and announce requirement was lacking.[3] See
Commonwealth v. Cundriff, 382 Mass. 137, 147 &
n.15 (1980), cert. denied, 451 U.S. 973 (1981) (requires probable cause to
believe evidence will be destroyed, suspect will escape, or announcement will
result in violent resistance endangering safety of police or others). See also
Commonwealth v. Macias, 429 Mass.
698, 704 (1999); Commonwealth v. Jimenez, 438 Mass.
213, 216-217 (2002).
Although challenging the no-knock feature of the warrant was one option to
consider, it was not the only reasonable one. "Unless a tactical decision
of trial counsel was 'manifestly unreasonable when made,' we will not find
ineffectiveness." Commonwealth v. LaCava, 438 Mass.
708, 713 (2003), quoting from Commonwealth v. Martin, 427 Mass.
816, 822 (1998). "[W]e give trial counsel's
tactical decisions due deference, and do not second guess competent lawyers
working hard for defendants who turn on them when the jury happen to find their
clients guilty." LaCava, supra at 713 (internal quotations and citations omitted).
The assessment that the risk in seeking suppression might outweigh the benefit
of denying the defendant's connection to the premises did not fall measurably
below that of reasonably competent counsel and thus does not warrant reversal. See Commonwealth
v. Rondeau, 378 Mass. 408,
412-413 (1979).
At trial, the centerpiece of the defense was disavowal of any connection to 280
Acushnet Avenue where the drugs and other indicia
of distribution were found. Juxtaposed with this disavowal was the defendant's assertion
that Rodrigues had a drug problem, had been arrested
for a drug offense, and had a number of questionable men friends who stayed
with her, any of whom could have been the owner of the men's clothing and the
drugs.
In his testimony, the defendant explained that he had lived previously with Rodrigues at 379 Cedar Street,
New Bedford, until October of 1998, when
her heroin use, drug arrest, and unsavory male friends led him to leave. He
then had moved to the Bronx, New
York, where he lived at his mother's house with his
new girlfriend. He had no ongoing relationship with Rodrigues
other than through their daughter. He only went to the premises three or four
times to visit his daughter who lived there with Rodrigues.
He denied living or keeping clothing or toiletries at the Acushnet
Avenue apartment, denied having keys or paying any
portion of the rent, and denied owning the men's clothing found there. All
phone bills, gas and electric bills, and rental receipts for the apartment were
in Rodrigues's name or that of another woman. Except
for one occasion, on visits to his daughter the defendant stayed with a friend
at 35 Rodney French Boulevard.
The defendant further testified that on the night prior to execution of the
search warrant, he had arrived by bus from New York
at about 10:30 P.M. and watched his
daughter while Rodrigues went out with her new
boyfriend. The defendant had fallen asleep on the couch around 11:00 P.M. He awakened the next morning when
the police entered the premises. The 250 bags of heroin found in the kitchen
were placed there some time after the defendant had fallen asleep. He never saw
the marijuana found in the refrigerator. Upon his arrest a police officer said,
"You're a hard person to find; you're always in New
York."
Viewed as part of an over-all defense strategy, the determination not to risk
undermining the defense of disavowing any connection to the apartment by filing
a motion to suppress was not "manifestly unreasonable." See
Commonwealth v. Rondeau,
378 Mass. at 412-413. "[A]n
ineffective assistance of counsel challenge made on the trial record alone is
the weakest form of such a challenge because it is bereft of any explanation by
trial counsel for his actions and suggestive of strategy contrived by a defendant
viewing the case with hindsight." Commonwealth v. Peloquin,
437 Mass. 204, 210
n.5 (2002). To challenge the search and seizure of items from the
third-floor apartment at 280 Acushnet Avenue,
the defendant had the threshold burden of establishing that the government
intruded in a place in which he had a reasonable expectation of privacy.[4]
See Commonwealth v. D'Onofrio, 396 Mass.
711, 714-715 (1986); Commonwealth v. Carter, 424 Mass.
409, 411 (1997). "In connection with a suppression motion, a defendant has
the burden of establishing that the government has intruded on his or her
reasonable expectation of privacy, thus establishing that a search has taken
place. Then, but only then, the government has the burden to show that its
search was reasonable and therefore lawful." Commonwealth
v. Pina, 406 Mass. 540, 544,
cert. denied, 498 U.S. 832 (1990). See
Commonwealth v. Sespedes,
58 Mass. App. Ct. 907, 909 n.3 (2003).
The rules of criminal procedure require that a defendant seeking suppression
raise the issue by motion and supporting affidavit, upon personal knowledge,
setting forth the factual basis for the motion. See Mass.R.Crim.P.
13, 378 Mass. 871 (1979); Commonwealth v. Robles, 48 Mass. App. Ct. 490, 491 n.1 (2000); Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 773-774 (2001). An affidavit from the defendant
himself asserting a factual basis for a claimed expectation of privacy in the
premises would put at some risk the defendant's chosen trial strategy of
disavowing all connection to the Acushnet Avenue
apartment or its contents and thrusting the blame in Rodrigues's
direction. The defendant ran the risk of being impeached at trial with his
supporting affidavit. See Commonwealth v. Rivera, 425 Mass. 633, 637-638 (1997). There was little likelihood that Rodrigues would risk inculpating herself to aid the
defendant's cause.[5]
Even assuming that the defendant could have met
his threshold burden of establishing that a search in the constitutional sense
occurred, see Commonwealth v. Frazier, 410 Mass. 235, 243 (1991), the
likelihood of the defendant's establishing the absence of probable cause to
issue a no-knock warrant was at least open to question.[6] Moreover,
"evidence seized in violation of the law will be suppressed only if the
violation is substantial or rises to the level of a Federal or State
constitutional violation." Commonwealth v. Grimshaw, 413 Mass. 73, 77
(1992). Violation of the knock and announce requirement does not
automatically lead to suppression of the evidence. See Commonwealth
v. Gomes, 408 Mass. 43, 46 (1990); Commonwealth v. Jimenez, 438 Mass. at 222.
Whether the evidence seized should be suppressed would depend upon (1) the
degree to which the violation undermined the principles underlying the
governing law; and (2) the extent to which exclusion will tend to deter such
violations from being repeated. Commonwealth v. Gomes, 408 Mass.
at 46. Under these circumstances, we cannot conclude that defense counsel's
decision not to file a motion to suppress was manifestly unreasonable.
b. Additional witnesses. The defendant next contends that counsel was
ineffective in failing to call his current girlfriend, his mother, and Rodrigues to corroborate his assertion that he lived in New
York rather than at Acushnet Avenue.[7]
Ineffective assistance of counsel is not established simply by showing that the
defendant's counsel did not call a witness. See Commonwealth
v. Rondeau, 378 Mass. at 413;
Commonwealth v. McMaster, 21
Mass. App. Ct. 722, 735
(1986). The defendant must make a showing that the purported testimony
would have been either relevant or helpful. See Commonwealth
v. Beauchamp, 49 Mass. App.
Ct. 591, 609-610 &
n.23 (2000). He has not done so. Nor has he established that the failure
to call these witnesses undermined his defense in any significant way.
The testimony the defendant speculates these witnesses could have supplied was
cumulative of the defendant's testimony. See
Commonwealth v. Knight, 437 Mass.
487, 500 (2002).[8] During
cross-examination, the defendant testified that his current girlfriend, who was
outside the courtroom, could testify that he lived in the Bronx.
Defense counsel directed the jury's attention to other corroborative evidence
that the defendant lived there, including a New York
State photo identification card and
a car rental agreement, both of which listed a Bronx
address. Counsel's failure to call these witnesses did not deprive the
defendant of an otherwise available ground of defense. See Commonwealth
v. Saferian, 366 Mass. at 96.
2. Guilt by association. We have considered and we reject the defendant's
contention that improper questioning by the prosecutor could have resulted in
his conviction based on "a doctrine of guilty by association." See Commonwealth
v. Szemetum, 3 Mass. App. Ct. 651, 653-654 (1975); Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999). One isolated improper question did not
cause prejudicial error. Commonwealth v. Pagano, 47
Mass. App. Ct. 55, 60 (1999), cert. denied, 528 U.S.
1089 (2000).
3. Prosecutor's closing. The defendant asserts that the conviction should be
reversed because in closing argument the prosecutor made statements as to what
he would have done in the defendant's position. We have reviewed the entire
closing argument and, in context, the now-challenged remarks created no error,
much less a substantial risk of a miscarriage of justice. See
Commonwealth v. Montgomery, 52
Mass. App. Ct. 831, 834-835 (2001).[9] In his closing the prosecutor did not
vouch for the credibility of the police officers or suggest the prosecutor's
personal knowledge of things unknown to the jury. Rather, the prosecutor
addressed the evidence, including the differences between the police officers'
testimony and the defendant's, and suggested that if the jury used their common
sense they would find the officers' testimony more credible. Ibid.
4. Motion for required finding of not guilty. The evidence that the defendant
had constructive possession of the heroin found in the apartment was ample.
Mere presence in the area where contraband is found is insufficient to show
"the requisite knowledge, power, or intention to exercise control over the
[contraband], but presence, supplemented by other incriminating evidence 'will
serve to tip the scale in favor of sufficiency.'" Commonwealth v. Albano, 373 Mass.
132, 134 (1977), quoting from United States
v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). Commonwealth v. Monson, 57 Mass. App. Ct. 867, 870-871 (2003). Officer Spirlet
observed the defendant coming and going from the premises more than twenty-five
times, often using a key to gain entry. The defendant told the police he lived
there, pointed out the drugs in the closet, and signed a bail receipt which
stated he lived at the apartment. See ibid. The police found men's clothing, as
well as mail addressed to the defendant and forwarded there. See Commonwealth
v. Rarick, 23 Mass. App. Ct. 912, 913 (1986). The judge did not err in denying the
defendant's motion for a required finding of not guilty. See Commonwealth
v. Latimore, 378 Mass. 671,
677-678 (1979).
Judgment affirmed.
FOOTNOTES:
[1] Following his
conviction, the defendant filed a new trial
motion that raised the same issues pressed here on
direct appeal. The trial judge denied the motion, and the defendant did not
appeal from that ruling.
[2] The defendant acknowledged signing the bail
recognizance, but disavowed the handwriting that indicated Acushnet
Avenue to be his residence.
[3] The defendant does not argue that the search
warrant application and affidavit failed to establish probable cause to believe
that drugs were located at the apartment.
[4] The drug charges on which the defendant was
indicted were possessory offenses conferring
automatic standing. See Commonwealth v. Amendola, 406 Mass. 592, 600
(1990); Commonwealth v. Montanez, 410 Mass. 290,
300-301 (1991); Commonwealth v. Lodge, 431 Mass. 461,
474-475 (2000).
[5] Also pending was an indictment for conspiracy, a
non-possessory offense, in which Rodrigues
was alleged to be a co-conspirator. See Commonwealth
v. Frazier, 410 Mass. 235, 244-246 & n.3 (1991); Commonwealth v. Albert, 51 Mass. App. Ct. 377, 379 nn.5 & 6 (2001).
[6]
See Commonwealth v. Macias, 429 Mass. at 704 n.6.; Commonwealth v. Jimenez, 438 Mass at 218. The
affidavit in support of the search warrant application recited that a
confidential informant made a controlled buy of heroin from the defendant at a
location away from the apartment. The defendant did not allow customers to come
to the apartment due to fear of complaints by neighbors and in order not to
draw attention to himself. The affidavit also recited
the defendant's previous arrest for assault and battery by means of a dangerous
weapon.
[7] The defendant asserts that Rodrigues
could also have testified that she and the defendant were not engaged in a
relationship, and, further, to the respective locations of herself, the
defendant, and their daughter at the time the police entered.
[8] In his new trial motion, the defendant provided
no affidavits from any of the prospective witnesses setting forth the substance
of their proposed testimony. See Commonwealth v. Lynch, 439 Mass. 532, 538-539 & n.2 (2003).
[9] Defense counsel made no contemporaneous
objection.