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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. Penta, 32 Mass.App.Ct.
36 (1992)
Appeals Court of Massachusetts, Middlesex.
No. 90‑P‑1293.
Argued
Decided
Further
Appellate Review
Denied
Christopher Patusky, Theos D. McKinney, with him,
Pamela L. Hunt, Asst. Atty. Gen., for Com.
Before KASS, SMITH and
SMITH, Justice.
The
defendant was the subject of a three‑count indictment which charged him
with (1) trafficking in cocaine in excess of 200 grams, (2) trafficking in
cocaine in excess of twenty‑eight grams, and (3) conspiring with one John
Mele to violate the narcotics laws. A jury found him guilty on the two counts
charging him with substantive offenses.
The defendant assigns as error (1) the denial of his suppression
motions, (2) the judge's ruling that a witness could claim his privilege
against self‑incrimination, and (3) the introduction of evidence of an
earlier drug transaction involving the defendant.
The
Commonwealth introduced the following evidence at trial. In late September, 1987, police officers
assigned to the narcotics unit of the Attorney General's office met a private
citizen named Jeffrey Mueller. Mueller
told them about various drug deals in
On October
21, 1987, Trooper White applied to the Superior Court for a one‑party
consent interception warrant pursuant to G.L. c. 276,
§§ 1‑3A, and to G.L. c. 272, § 99. A Superior Court judge granted the warrant on
the same day. A second warrant was
subsequently issued on October 30, 1987.
[32
Mass.App.Ct. 38]
On November 5, 1987, a transmitter was attached to Mueller (FN1) , and the
police provided him with $12,000 to pay for the cocaine. At 2:45 P.M., the police set up a
surveillance around Mueller's house.
About 3:15 P.M., the defendant arrived and went inside. Over the transmitter, the police heard the
defendant discussing the drug deal with Mueller. During their conversation, the defendant
asked for the money. Mueller showed him
the money, and the defendant started to count it. The defendant then told Mueller that he
wanted to take the money with him when he went to get the cocaine. Mueller had been instructed by the police not
to let the money out of the house or to leave the house himself. He objected to the defendant's taking the
money; he told the defendant that the
money belonged to his (Mueller's) brother, it was the only money the brother
had, and it could not be taken from the premises. The defendant responded that he would be back
in a half hour and left, leaving the money behind.
Between
4:15 and 4:30 P.M., the defendant returned by automobile to the area of
Mueller's home. He was driving, and John
Mele was his passenger. Shortly after he turned the corner onto
Mueller's street, the defendant pulled his automobile to the curb, and Mele got out. The
defendant handed Mele a brown package, which Mele placed in his jacket pocket. Mele wore a paging
device (beeper) on his waist.
The
defendant then drove to Mueller's house and entered. During the ensuing conversation, which the
police recorded, the defendant told Mueller that, after he counted the money,
he would "beep" someone. That
person would meet Mueller outside by the front of the defendant's automobile
and give [32 Mass.App.Ct.
39] Mueller the cocaine. After hearing this conversation, the police
entered Mueller's home and arrested the defendant as he was counting the
money. Mele
also was arrested. In the brown package
in Mele's pocket the police found two glassine
bags: one contained 224.2 grams of 59%
pure cocaine, and the other contained 27.6 grams of 52% pure cocaine. (FN2)
The
defendant was placed in a cruiser with two police officers. They informed him that they had a search
warrant for his house and asked the defendant if he wanted to be present during
the search. He said that he did but
changed his mind when he saw his father outside the house. The defendant told the police that he had
about three ounces of cocaine in a briefcase in his bedroom. The police found the briefcase in the bedroom
and searched it. In it they discovered inositol (a cocaine dilutant), a Deering Precision grinder, a cash box, gold jewelry, a
piece of glass, and 63.2 grams of cocaine.
The police also seized an electronic scale and a beeper from the
defendant's room. A police officer
testified that the items found were consistent with the cutting and
distribution of cocaine rather than with personal use. Mueller did not testify for the Commonwealth.
In his
defense, the defendant claimed that he had been subject to entrapment by
Mueller, acting as an agent of the police.
The defendant testified that he had been friends with Mueller for some
thirteen years. In the latter part of
1987, the defendant saw or spoke with Mueller several times a week. Sometime in September, they attended a
football game together. During the game,
Mueller told the defendant that he was in financial trouble and was unable to
obtain drugs from his usual dealer.
Mueller asked the defendant to buy some drugs for him. The defendant refused and said Mueller was
crazy. On the way home, Mueller brought
up the subject again, and again the defendant rebuffed Mueller;
the matter was dropped at that time.
About a
week later, the defendant went to court to bail out Mueller, who was in jail
after an arrest on some outstanding [32
Mass.App.Ct. 40]
warrants. Mueller told him he was in
further financial difficulty and needed the defendant's help getting
drugs. Again the defendant declined to
assist Mueller.
The
defendant testified that during September and October Mueller asked him
approximately twenty times to get some drugs for him. The defendant refused every time. Eventually, however, as a result of Mueller's
pleas, the defendant agreed to obtain some drugs for him.
The
defendant testified that Mueller wanted to buy eleven ounces of cocaine on
November 5. The defendant agreed to
arrange with Mele to get the cocaine for $10,750 and
to give it to Mueller; he made the
arrangements after speaking separately with Mele and
with Mueller. It was agreed that Mueller
would pick up two ounces of cocaine at the defendant's house on the evening of
November 4, and that the remaining nine ounces would be delivered to Mueller at
his house the next day. On November 4,
during the early evening, Mueller arrived at the defendant's house with a
briefcase. The defendant gave Mueller
two ounces of cocaine which Mueller placed in the briefcase. It was agreed that, on the following day,
Mueller would give the defendant $11,250, and the defendant would buy the drugs
from Mele and deliver them to Mueller. Mueller left his briefcase in the defendant's
bedroom.
The defendant
testified that on November 5 he drove to Mueller's house to complete the drug
transaction. After a conversation with
Mueller, the defendant left and drove to Mele's
house. He picked up Mele,
drove to the vicinity of Mueller's house, and let him out. The defendant then went to Mueller's
house. Upon entering the house, the
defendant was arrested by the police.
We now
examine the issues raised on appeal by the defendant.
1. Denial of suppression motions. Prior to trial, the defendant filed three
suppression motions. They were motions
to suppress (1) all information and statements obtained from the transmitter
worn by Mueller, (2) the defendant's statements made to the police after his
arrest, and (3) all evidenceseized [32 Mass.App.Ct.
41] from the defendant's home and
automobile. The motions were
denied. On appeal, the defendant
challenges the judge's actions on only the first two motions.
[1] a. Evidence obtained from the transmitter. The defendant claimed that the interceptions
of his conversations with Mueller violated the United States Constitution and
the Massachusetts Declaration of Rights for the following reasons: (1) the affidavit in support of the warrant
was not based upon probable cause, (2) the defendant did not consent to the
interceptions, and (3) the interceptions were not made pursuant to a valid
warrant. The defendant also claimed that
Mueller had not consented to wearing the transmitter.
An
evidentiary hearing was held at which the judge limited the evidence to whether
Mueller voluntarily consented to wear the transmitter. Mueller testified that he went to the police
because, sometime in early September, 1987, the defendant had threatened both
him and his family. From the outset, the
police informed him that his cooperation in the investigation would have to be
voluntary. Mueller testified that he
freely consented to wearing the transmitter and signed a consent form that so
stated.
Mueller
also testified that, at the time he contacted the police, he no longer was using
cocaine but was ingesting 250 milligrams of valium daily. The police assisted him in obtaining
admittance to an out‑of‑State drug treatment facility about
November 15, 1987, some ten days after the defendant's arrest. At the time that Mueller went to the police,
he was in default in three courts on charges involving uttering counterfeit
lottery tickets. Mueller testified that
he told the police about the defaults, and two police officers arranged to have
the defaults removed and the matters postponed to a later date. Further, about five days after signing the consent form, he
received from the Attorney General's office an airplane ticket to an out‑of‑State
destination. In addition, he stated
that, on the day before he testified at the suppression hearing, he received
from the police $1,500 in cash and $125 for a telephone bill.
[32 Mass.App.Ct.
42] After the hearing, the judge
denied the defendant's suppression motion.
The judge specifically found that Mueller had freely consented to
wearing the transmitter.
Shortly
after the denial of his motion, the defendant filed a motion requesting that
the judge reconsider his denial. The
motion stated that Mueller had recanted his testimony given at the suppression
hearing. Mueller's affidavit accompanied
the defendant's motion. Among other
things, the affidavit stated the following:
(1) when Mueller first contacted law enforcement authorities in the fall
of 1987, he was under the influence of valium and was worried about his pending
criminal charges; he was told by the
authorities that the cases would be "temporarily misplaced" and later
taken care of and that he would be able to move out of the State at the expense
of the Attorney General; (2) the day he
signed the consent form, he did not think it was the right thing to do but was
told it was "too late"; and
(3) he was told that if he did not agree to wear the transmitter, his pending
criminal cases would "reappear" and he could be charged as an
habitual felon. According to Mueller's
affidavit, were it not for those statements, he would not have consented to
wear the transmitter. The judge held an
evidentiary hearing on the matter.
At the
hearing, Mueller was represented by counsel.
Because his affidavit and proposed testimony contradicted his previous
testimony, the judge advised Mueller of his privilege against self‑incrimination. Mueller testified nonetheless. He stated that the testimony he had given at
the previous hearing was not truthful.
Mueller further testified that the defendant "was my friend all my
life ... and I just couldn't live with myself." He claimed that he was coerced into wearing
the transmitter; in addition to the
inducements (to which he had testified at the previous hearing), the police
also promised him a percentage of the money based on the value of the cocaine
he recovered. His remaining testimony
was generally in accord with the statements in his affidavit.
At the
close of the evidence, the judge found that Mueller's recantation of his
previous testimony was not credible. [32 Mass.App.Ct.
43] The motion to suppress remained
denied. At the request of the
prosecutor, the judge, acting under G.L. c. 268, § 4,
ordered Mueller to appear and answer to any potential indictment for
perjury. No perjury indictment was
returned prior to trial.
On appeal,
the defendant raises two issues relative to the denial of his suppression
motion: (1) the interception warrants
were invalid because the person who made application for their issuance was a
State trooper and was not the Attorney General or his designee as required by G.L. c. 272, § 99 F 1;
and (2) Mueller did not consent to wear the transmitter until October
22, 1987, the day after the first warrant issued. (FN3)
The
defendant's claim that the applications for the warrants were by an
unauthorized person was not made below, and we need not consider it now.
Commonwealth v. Colon, 408 Mass. 419, 427, 558 N.E.2d 974
(1990). In any event, "[t]he
authorization by [Mueller (FN4)] to record and transmit the communications,
coupled with the fact that the recording and transmitting occurred 'in the
course of an investigation of a designated offense as defined' in [G.L. c. 272,] § 99 B 4, meant that the secret hearing
and recording of conversations by the police was not an 'interception.' "
Commonwealth v. Davis, 407 Mass. 1001, 1001, 551 N.E.2d 1201
(1990). Therefore, G.L.
c. 272, § 99, did not apply to the situation here. Id. at 1002, 551 N.E.2d
1201.
Commonwealth v. Price, 408 Mass. 668, 671 n. 2, 562 N.E.2d 1355 (1990). On appeal, the defendant does not make a
separate claim that under G.L. c. 276, §§ 1‑3A,
the police otherwise lacked the authority to obtain the warrants.
[32 Mass.App.Ct.
44] [2] b. Defendant's statements after
his arrest. The defendant claims
that the judge committed error in refusing to suppress the defendant's
statements made after his arrest and while in the cruiser en route to his home
with police who were to execute the search warrant. He argues that those statements should have
been suppressed because the evidence did not support the finding that the
defendant was informed of his Miranda rights while in the cruiser.
The judge
also found, however, that the defendant was advised of his Miranda rights at
the time of his arrest and that he understood them and did not invoke any
protection afforded by them. That
finding was supported by the evidence.
In these circumstances, there was no requirement that the police readminister the Miranda warnings during the ride to the
defendant's home.
[3][4][5][6][7][8]
2. The allowance of Mueller's claim of
privilege against self‑incrimination. Before defense counsel gave his opening
statement to the jury, he informed the judge that he planned to call Mueller as
a defense witness. Defense counsel,
however, had been informed that, if called as a witness, Mueller intended to
assert his privilege against self‑incrimination. Therefore, defense counsel asked the judge
for guidance on how to approach the matter in his opening statement.
With the
jury excused, the judge asked Mueller's attorney whether Mueller intended to
exercise his privilege against self‑incrimination. Mueller's attorney answered
affirmatively. He stated that Mueller's
conflicting testimony at the previous hearings would likely give rise to a
perjury prosecution. If Mueller
testified at the defendant's trial, that testimony would provide further
evidence against Mueller at a perjury trial.
In response, the defendant argued that Mueller had waived his privilege
against self‑incrimination by his voluntary testimony at the previous
hearings.
After
engaging in a lengthy discussion with counsel, the judge indicated that he
would recognize Mueller's claim of the privilege against self‑incrimination. The jury returned to the courtroom, and the
defendant called Mueller as a witness.
He provided his name and address and then claimed his [32 Mass.App.Ct.
45] privilege in response to any
questions concerning his activities in the fall of 1987. Over the defendant's objection, the judge refused
to order Mueller to answer any of the defendant's questions, and the witness
was excused.
There is
no question that the judge was correct in ruling that Mueller had a valid claim
of privilege under both the Fifth Amendment to the United States Constitution
and under art. 12 of the Massachusetts Declaration of Rights. At the two previous hearings, Mueller had
given conflicting testimony on several material issues. As a result, whatever his testimony would
have been at the defendant's trial, it surely would have produced evidence that
could have been used against him in any subsequent perjury proceeding. See
Commonwealth v. Borans, 388 Mass. 453, 457, 446
N.E.2d 703 (1983).
The fact
that the privilege existed, however, does not conclude our inquiry into the
matter. We now must consider the issue
raised before the trial judge by the defendant:
Did Mueller, by his testimony in the two previous hearings, waive his
privilege against self‑incrimination and, therefore, should he have been
ordered to testify at the defendant's trial?
In Luna v. Superior Court, 407 Mass. 747,
749‑751, 555 N.E.2d 881 (1990), decided after the trial judge's decision
in this case, the court held that a prospective witness in a criminal case, who
voluntarily submitted an affidavit in conjunction with a
Commonwealth motion, waived his privilege against self‑incrimination as
to subsequent questions seeking related facts in the same criminal case. The record here provides an ample basis upon
which to conclude that Mueller's testimony in the two prior hearings was
voluntary. At the first hearing, he was
a willing Commonwealth witness. After
that hearing, Mueller voluntarily submitted an affidavit recanting his
testimony. At the hearing on the motion
to reconsider the judge's denial of the defendant's suppression motion, Mueller
was represented by counsel and was advised of the possible legal consequences
if he testified in accordance with his affidavit. He testified after being so advised. Further, the trial, at which he invoked his
privilege, involved the same charges and the same defendant as the earlier
proceedings at which Mueller [32 Mass.App.Ct. 46]
voluntarily testified; the trial was
merely a continuation of the earlier proceedings. "[W]aiver
extends to subsequent proceedings if [the] 'proceeding in which the privilege
is invoked is a probable, logical, or natural continuation or outgrowth of the
proceeding ... in which prior testimony has been given by the witness.' " Luna
v. Superior Court, 407 Mass. at 751, 555 N.E.2d 881, quoting from Matter of DeSaulnier
(No. 2 ), 360 Mass. 761, 766, 276 N.E.2d 278 (1971). Contrast
Commonwealth v. Borans, 388 Mass. 453, 446 N.E.2d
703 (1983), and Palaza
v. Superior Court, 393 Mass. 1001, 469 N.E.2d 60 (1984), where witnesses' waivers
by testimony in earlier proceedings were held not to apply in later trials that
involved different defendants. We hold
that, by voluntarily testifying in two proceedings prior to the same trial,
Mueller waived his right to exercise his privilege against self‑incrimination
as to questions seeking related facts.
It was error for the judge not to order Mueller to answer questions
concerning any matters which were the subject of his previous testimony.
The
Commonwealth claims that any error in excluding Mueller's testimony was
harmless because it did not prejudice the defendant or otherwise impair the
integrity of the fact‑finding process.
See Chambers v. Mississippi,
410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d
297 (1973). (FN5) The defendant contends, however, [32 Mass.App.Ct.
47] that because of the judge's
ruling he was deprived of Mueller's testimony, which was relevant, material,
and vital to his defense. See Washington v. Texas, 388 U.S. 14, 16,
87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). In order to resolve the issue, we must
examine the defense of entrapment.
There are
two elements of the entrapment defense:
(1) that the defendant was induced by a government agent or one acting
at his direction and (2) that the defendant lacked predisposition to engage in
the criminal conduct of which he is accused.
Before a
defendant is entitled to an instruction on the defense of entrapment, the
defendant has the burden of producing some evidence of inducement by the
government. Commonwealth v. Thompson, 382 Mass. 379,
384, 416 N.E.2d 497 (1981). The judge
ruled that the defendant had met his burden and instructed the jury on the
entrapment defense.
Once the
issue whether the defendant was entrapped is before the jury, the burden is on the Commonwealth to prove beyond a
reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to
commit the crime. United States v. Rivera, 855 F.2d 420,
423 (7th Cir.1988). United States v. Rodriguez, 858 F.2d 809,
815 (1st Cir.1988). Had Mueller
testified at the defendant's trial, his testimony would have been relevant and
material on each of those elements.
(FN6) The erroneous exclusion of
Mueller's testimony created "grave question whether the defendant received
a fair trial, and his convictions must be reversed." Commonwealth v. McMiller, 29 Mass.App.Ct.
392, 409, 560 N.E.2d 732 (1990).
[9] 3.
Evidence of defendant's prior drug transaction. Because the issue might arise at the new
trial, we discuss the defendant's claim that the judge committed error in
allowing the Commonwealth to introduce evidence of a prior drug transaction.
[32 Mass.App.Ct.
48] Mueller and the defendant had
agreed to an October 22 meeting to discuss the defendant's forthcoming November
5 sale of cocaine by the defendant. On
October 21, the police obtained a one‑party consent interception warrant
and the following day attached a transmitter to Mueller. (FN7)
The conversation between Mueller and the defendant was recorded. During the conversation, both men discussed
details of the November 5 sale. Mueller
also complained that a previous sale of cocaine to him by the defendant was
"short" of the agreed amount.
The defendant told Mueller not to worry because the cocaine involved in
the November 5 sale would be "good stuff."
On
rebuttal, the Commonwealth offered the contents of the recording in evidence
solely on the issue of the defendant's predisposition to commit the November 5
crimes. The judge overruled the
defendant's objection, and the jury heard the contents of the recording.
The
defendant agrees that the Commonwealth may introduce evidence of conduct
reflecting the defendant's predisposition to commit the November 5 crimes, but
contends such evidence must be limited to that conduct which occurred prior to
Mueller's inducements. Because those
inducements began in September, the defendant argues that the October 22
conversation should not have been admitted.
We disagree.
The
Commonwealth was entitled to introduce evidence relevant to the defendant's
predisposition to commit both the November crimes for which he was tried,
namely, trafficking in a quantity in excess of 200 grams of cocaine and
trafficking in a quantity in excess of 28 grams. Contrary to the defendant's argument, when
proving the defendant's predisposition the Commonwealth is not limited to the
period of time prior to Mueller's inducement.
Rather, the Commonwealth may offer such evidence from the entire period
prior to the time the defendant committed the November 5 crimes.
Commonwealth v. Miller, 361 Mass. 644, 652, 282 N.E.2d 394
(1972). Here, the [32 Mass.App.Ct. 49] judge gave careful and thorough instructions to the jury as to
the limited purpose of such evidence.
4. Conclusion. The judgments are reversed, the verdicts are
set aside, and the matter is remanded to the Superior Court for a new trial.
So ordered.
(FN1.) The transmitter was about one‑half
the size of a pack of cigarettes and was attached by an "ace" bandage
to Mueller's body underneath his clothing.
The
transmitter included a microphone, an antenna, and a battery. The transmitter would pick up sound, then
transmit it from the antenna to a receiver which would be located nearby. In this instance, the police heard the
conversations between Mueller and the defendant over the receiver and recorded
them. Police witnesses testified to the
contents of the conversations. In
addition, the recordings of the conversations were played to the jury.
(FN2.) Twenty‑eight grams equal
approximately one ounce. Thus, a total
of just under nine ounces of cocaine was found on Mele.
(FN3.) The defendant argues that the warrant
was invalid because the evidence showed that Mueller signed the consent form on
October 22, contrary to the affidavit accompanying the warrant, which stated
that Mueller had consented to the interception on October 21.
The
defendant did not raise the issue at the suppression hearing and we need not
consider it now. In any event, there was
ample evidence to support the judge's finding, made at the conclusion of both
hearings, that Mueller had orally consented before the issuance of the October
21 warrant. The defendant has not raised
any issue on appeal challenging that finding.
(FN4.) See note 3, supra.
(FN5.) The Commonwealth claims, among other
things, that the defendant did not suffer any harm from the exclusion of
Mueller as a witness, because the judge "inexplicably" permitted
Mueller to claim his privilege in front of the jury. That action, according to the Commonwealth,
worked to the benefit of the defendant because the drama of a witness
"taking the Fifth" causes the jury to believe that the witness has
committed a crime. See Commonwealth v. Phoenix, 409 Mass. 408,
429, 567 N.E.2d 193 (1991).
We
agree with the Commonwealth that it was error for the judge, in these
circumstances, to permit Mueller to invoke his privilege against self‑incrimination
before the jury. Commonwealth v. Hesketh,
386 Mass. 153, 157‑158, 434 N.E.2d 1238 (1982). Commonwealth v. Gagnon, 408
Mass. 185, 198, 557 N.E.2d 728 (1990).
But we fail to see how the defendant obtained any particular advantage
from the judge's error. The defendant
was not trying to show that Mueller had committed a crime. Rather, the defendant was attempting to establish
that the only reason he committed the crime was because Mueller, acting as a
police agent, induced him to break the law and he was not so predisposed. We doubt that the jury would perceive the
action of Mueller in exercising his privilege as somehow helping the defendant.
(FN6.) The defendant made an offer of proof to
the trial judge as to the contents of Mueller's testimony were he ordered to
testify. It was generally similar to the
testimony Mueller gave at the second hearing.
(FN7.) See note 3, supra.