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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. Ploude, 44 Mass.App.Ct. 137 (1998)
Appeals Court of Massachusetts,
No. 96‑P‑1487.
Submitted
Decided
Michele R. Moretti,
Joseph Makalusky, Assistant District Attorney, for the
Commonwealth.
SMITH, Justice.
On
On appeal,
the defendant claims that the judge committed error in (1) denying his
suppression motion, (2) allowing the Commonwealth to introduce evidence of a
prior bad act regarding the defendant's insurance claim filed before the fire,
and (3) improperly sentencing the defendant on both indictments. The defendant also contends that certain of
the prosecutor's remarks in his closing argument amounted to reversible error.
1. Denial of the defendant's suppression
motion. The defendant filed a
motion to suppress evidence seized and observations made during inspections of
the fire‑damaged building by the Chelsea fire department and agents of
the Bureau of Alcohol, Tobacco, and Firearms (ATF). The entries were made without any
administrative or search warrants or the consent of the defendant. After an evidentiary hearing, the judge
denied the defendant's motion, ruling that one of the owners of the building,
Stephen Quigley, had consented to the entries and his consent was sufficient.
On appeal, the defendant argues that Quigley
could not give the fire department and ATF agents his consent to enter the
building because he (Quigley) did not have joint access or control of the
building with the defendant. (FN1)
We
summarize the judge's findings of fact, supplemented by the uncontroverted
testimony of Quigley and Captain Russo of the Chelsea fire department, both of
whose testimony the motion judge accepted as credible. Commonwealth v. Alvarado,
423 Mass. 266, 268 n. 2, 667 N.E.2d 856 (1996).
Quigley and his brother [44
Mass.App.Ct. 139] coowned the two‑story
building and leased it to one Collins.
Collins subleased the building to the defendant, who was the owner of
Bay State Graphics, a printing company.
The
defendant had equipment on the first and second floors and a locked office on
the first floor of the building. In
addition to Bay State Graphics, a newspaper known as the Chelsea Record had an
office for receiving ads and selling newspapers on the first floor in the front
of the building. Also on the first floor
was an office used to store the effects of the Quigleys' deceased father. This office was locked. Quigley had keys to the building and to his
father's locked office. According to the
defendant, Quigley would visit the office once or twice a week. Otherwise, the area of the first floor was
open and accessible to anyone walking through the front door.
[1] On the
night of the fire, Captain Russo arrived at the scene and, after the fire was
extinguished, walked through the building accompanied by the defendant. Russo allowed the defendant to remove and
salvage various equipment. Russo removed
an electrical box and samples of wood.
(FN2)
Quigley
did not arrive at the property until two days after the fire. By that time, the defendant had already
retained the services of a company to board up the windows of the
building. Water and melting snow was
still entering the building, however, through holes cut into the roof by the
firemen in their efforts to extinguish the fire. As a result, about one week after the fire,
Quigley took steps to close the holes in the roof, hiring contractors to
complete repairs (begun by the defendant), remove debris, and restore the
sprinkler and heating systems.
After the
fire, Quigley gave Russo permission to enter the building at any time and gave
him a key for that purpose. On January
14, 1993, Russo, accompanied by ATF agents, entered the building without a
warrant. Another entry was apparently
made on January 15. The purpose of the
entries was to conduct an investigation into the cause of the fire. As a result of their investigation, both
Russo and the ATF agents concluded that the
[44 Mass.App.Ct. 140] fire had
been intentionally set. (FN3) After the entries, Quigley and the defendant
were presented with forms giving Russo and the others permission to enter the
building. Quigley signed, but the
defendant refused to sign the form.
In denying
the defendant's suppression motion, the judge concluded that Quigley, as
coowner of the building, possessed a sufficient proprietary interest in the
building to consent to the January entries into the building by Russo and the
ATF agents.
In
reviewing the denial of a suppression motion, we accept the judge's findings of
fact absent clear error. "[T]he
ultimate conclusion to be drawn from the fact[s] developed at the hearing is a
matter for our review, particularly where the conclusion is of constitutional
dimension." Commonwealth v. Accaputo, 380 Mass. 435,
448 n. 18, 404 N.E.2d 1204 (1980). We
agree with the judge's conclusion that the suppression motion should be denied but for a different reason.
Commonwealth v. Bennett, 414 Mass. 269, 271, 607 N.E.2d 408 (1993).
[2][3] A
third party does not have the authority to consent to a warrantless entry into
a building merely because he has a proprietary interest in the premises.
United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993
n. 7, 39 L.Ed.2d 242 (1974). See Chapman v. United States, 365 U.S. 610,
616‑617, 81 S.Ct. 776, 779‑780, 5 L.Ed.2d 828 (1961) (a landlord
does not generally have the authority to consent to a search of house rented to
another). Nevertheless, a person who has
"common authority" over the property to be searched may properly
consent to a search. United States v. Matlock, supra at 171,
94 S.Ct. at 993. Commonwealth v. Wahlstrom, 375 Mass. 115,
117, 375 N.E.2d 706 (1978).
The
"common authority" that is required for a third party's consent to a
warrantless entry into a building rests "on mutual use of the property by
persons generally having joint access or control for most purposes, so that it
is reasonable to recognize that any of the co‑inhabitants has the right
to permit the inspection in his own right and that the others have assumed the
risk that one of their number might permit the common area to be
searched." United States v. Matlock, 415 U.S. at 171
n. 7, 94 S.Ct. at 993 n. 7. People v.
Breidenbach, 875 P.2d 879, 888 (Colo.1994) ("When third persons have
broad rights to access and use of one's property, one assumes the risk that
they may consent to a search of those areas"). 3 LaFave, Search and Seizure § 8.5(a), at 777
(3d ed. 1996)[44 Mass.App.Ct. 141]
(a "lessor's consent may be effective ... when it is given with
respect to a portion of the premises which is not then in the exclusive
possession of the lessee").
[4] Here,
Quigley had a key to the building and to his locked first‑floor office,
which he visited once or twice a week.
The building did not have a separate entrance for Quigley's first floor
office. Rather, Quigley had to enter the
front door and walk through space leased to the defendant in order to get to
his office. (FN4) The defendant was aware of Quigley's practice
of using his office. In addition,
Quigley testified, and the judge deemed his testimony to be credible, that
during the defendant's occupancy of the premises, he (Quigley) had "free
reign of the building." Because
Quigley retained a portion of the leased property for his own purposes and had
"free reign of the building," he shared with the defendant the
authority to give consent to Russo and the ATF agents to enter the building in
order to conduct an investigation. It
follows that the defendant's suppression motion was properly denied.
2. Prosecutor's misconduct as to defendant's
prior injury. Before the trial, the
defendant filed a motion in limine to exclude evidence of, among other things,
an insurance claim filed by the defendant relating to an injury he suffered as
a result of a fall in September, 1992.
Defense counsel requested that the prior insurance claim not be
characterized in a manner suggesting that the defendant's claim had been
fabricated and that the defendant had not fallen. (FN5)
The Commonwealth argued that the scope of the defendant's injuries
suffered as a result of the fall was relevant to the defendant's work habits
and decreased work hours just prior to the fire. According to the Commonwealth, after the
fall, the defendant's work hours decreased because of the injuries he
sustained. Thereafter, the defendant's
typical day at the building began between 10 A.M. or 10:30 A.M. and would last
until 1:30 P.M. or 2 P.M. On the day of the fire, the defendant arrived at
about 10 and 10:15 A.M. and left at 11 A.M. stating that he was going home. However, the defendant returned to the
building sometime between 1:45 P.M. and 2 P.M., an occurrence that was rare
because of his injuries suffered in the fall.
The [44 Mass.App.Ct. 142] judge ruled that the Commonwealth's
witnesses could not characterize the defendant's prior insurance claim as being
fabricated but also ruled that the Commonwealth could ask questions concerning the scope of the
defendant's injuries sustained in the fall.
[5] During
the course of the direct examination of the Commonwealth's witness on the topic
of the scope of the defendant's injuries, and also during cross‑examination
of the defendant, the prosecutor used the words "alleged" and
"allegedly" in regard to the fall.
The defendant objected each time, and his objections were sustained by
the judge.
The
defendant claims that the prosecutor, by using the words "alleged"
and "allegedly" in his questions, conveyed to the jury the impression
that the defendant staged the accident in order to file a fraudulent insurance
claim.
The use of
the words "alleged" and "allegedly" in the prosecutor's
questions was indeed unfortunate. The
judge acted promptly in sustaining the defendant's objections, however, and,
contrary to the defendant's claim, the jury did not hear any evidence
concerning any prior misconduct of the defendant. Further, we note that the judge informed the
jury, both at the beginning and at the close of the trial, that questions are
not evidence and that only the answers are evidence. We rule that the defendant was not prejudiced
by the prosecutor's misconduct.
3. Closing argument. The defendant claims that the prosecutor
made improper comments in his closing argument.
In particular, the defendant argues that the prosecutor (1) misstated
evidence concerning the condition of the building's sprinkler system and (2)
argued facts not in evidence concerning the location of the defendant's
automobile after the fire. The defendant
did not object to the remarks.
We have
examined the prosecutor's remarks "in light of the entire argument, as
well as the judge's instructions to the jury and the evidence at trial,"
see Commonwealth v. Walker, 421 Mass.
90, 104, 653 N.E.2d 1080 (1995), and hold that the prosecutor did not commit
error.
[6] 4. Improper sentencing. In Commonwealth v. Shuman, 17 Mass.App.Ct.
441, 449‑452, 459 N.E.2d 102 (1984), we held that the offense of burning
a building (G.L. c. 266, § 2) is a lesser‑included offense of burning a
building with the intent to defraud an insurer (G.L. c. 266, § 10). At the sentencing phase, both the prosecutor[44 Mass.App.Ct. 143]
and the defendant stated that the defendant should be sentenced on only
one of the charges. The judge disagreed
and imposed concurrent sentences.
(FN6) On appeal, both the
prosecutor and defense counsel agree that the judge committed error. The fact that the sentences were to run
concurrently did not render the sentencing of the defendant on both guilty
verdicts proper. Commonwealth v. Jones, 382 Mass. 387,
395, 416 N.E.2d 502 (1981). The matter
is remanded to the Superior Court where one of the defendant's convictions and
sentence shall be vacated and a sentence imposed on the other conviction.
So ordered.
(FN1.) The defendant does not argue that
because Quigley's status was that of only a coowner his consent was
insufficient.
(FN2.)
The defendant does not challenge the entry into the building by Russo on the
night of the fire. "It is ...
settled that officials do not need a warrant to remain in a building for a
reasonable time to investigate the cause of a fire after it has been
extinguished." Commonwealth v. Jung, 420 Mass. 675, 681,
651 N.E.2d 1211 (1995). Therefore, the
electrical box and wood samples removed by Russo could be properly removed by
him.
(FN3.)
The suppression hearing was limited to whether Quigley had sufficient authority
to consent to the warrantless entries.
At trial, there was testimony by Russo and others that the fire started
on the first floor.
(FN4.)
Quigley did not have access to the defendant's locked office on the first
floor, but that office was not the subject of any search.
(FN5.)
It was the Commonwealth's theory at the trial that, because the defendant's
company was in a precarious financial position, he set the fire to collect the
proceeds of a $475,000 insurance policy.
(FN6.)
The judge imposed a greater sentence on § 2, the lesser‑included offense.