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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
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Commonwealth v. Podgurski,
44 Mass.App.Ct. 929 (1998)
Appeals Court of Massachusetts.
No. 96‑P‑1078.
Further
Appellate Review Denied
James H. Budreau,
Stephanie M. Glennon,
Assistant District Attorney, for the Commonwealth.
RESCRIPT.
[44 Mass.App.Ct.
929] The defendant was convicted of
trafficking in cocaine of a net weight in excess of twenty‑eight grams,
but less than 100 grams. G.L. c. 94C, § 32E(b
)(2). On appeal, he argues that the motion
judge improperly denied his motion to suppress.
He also asserts that, at trial, admission in evidence that he possessed
guns was error, that a comment made by the prosecutor during closing argument
was unduly prejudicial, and that jury instructions on "trafficking"
were improper. We affirm the conviction.
1. Motion to
suppress.
The
defendant argues that the police conducted an illegal warrantless
search of his home and bedroom under the pretext of a G.L.
c. 209A restraining order. We summarize
the judge's findings of fact.
In the
afternoon of
[44 Mass.App.Ct.
930] After returning to her home to
retrieve her children, the wife entered the shelter. Approximately three hours later, several
officers went to the defendant's residence to serve the 209A order. Upon arrival, the police saw two men approach
and enter the defendant's house. The
police followed them into the house, arriving one minute later. Without knocking, the police entered the
defendant's home by opening the unlocked front door. Once inside, they spoke with the defendant
briefly, and explained the 209A order to him.
During this discussion, the defendant indicated that he had guns in the
bedroom. He then went to the bedroom and
closed the door behind him. The police
immediately entered the bedroom and observed the defendant grab a packet from
the dresser in an attempt to conceal it.
The police recognized that the packet contained cocaine, and seized it.
[1][2] The
motion judge denied the defendant's motion to suppress, concluding that the
defendant's wife consented to the search, that exigent circumstances justified
the search, and that there was no authority for the proposition that a warrant
was necessary in order to serve a 209A order.
The judge found that the police entered the bedroom because they
reasonably believed the defendant was prone to violence, and because they were
required to confiscate the guns. In
reviewing the denial of a motion to suppress, 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).
[3][4]
Article 14 of the Massachusetts Declaration of Rights, and the Fourth and Fifth
Amendments to the United States Constitution, protect individuals from
unreasonable searches. An
unconstitutional search occurs when government action constitutes a meaningful
interference with an expectation of privacy that society is prepared to
consider reasonable. Commonwealth v. Billings, 42 Mass.App.Ct. 261, 264, 676 N.E.2d 62 (1997). Under this rule, government action inside a
home without a warrant is presumptively unreasonable, unless it falls within an
exception to the warrant requirement.
Assuming arguendo that a search occurred, it
fell within the consent exception to the warrant requirement.
[5][6] The
motion judge ruled that the defendant's wife consented to the search. The defendant argues that his wife's consent
was not valid, and if it was valid, that the bedroom search exceeded the scope
of the authorized search. (FN1) Family members who live in a home together
may validly consent to a search of that home.
See Commonwealth v. Ortiz, 422
Mass. 64, 70, 661 N.E.2d 925 (1996).
Although temporarily housed in a shelter, the defendant's wife lived in
the house and could consent to its search.
See Commonwealth v. Sanna, 424 Mass. 92, 97‑98, 674 N.E.2d 1067
(1997) (defendant's father consented to search); United States v. Matlock,
415 U.S. 164, 170‑172, 94 S.Ct. 988, 993, 39
L.Ed.2d 242 (1974) (defendant's spouse may consent to search if spouse has a
"sufficient relationship to the premises"). The relevant question then becomes whether
she did, in fact, consent.
[7][8][9][10]
When the Commonwealth relies on consent as the basis for a warrantless [44 Mass.App.Ct.
931] search, "it must
demonstrate consent unfettered by coercion, express or implied ... [which is]
something more than mere acquiescence to a claim of lawful authority. Voluntariness of
consent is a question of fact to be determined in the circumstances of each
case." Commonwealth v. Robinson, 399 Mass.
209, 217, 503 N.E.2d 654 (1987) (citations omitted). In the present case, there was ample evidence
to support the motion judge's finding that the defendant's wife knew the
officers would go to her house, and that she voluntarily consented to their
entry. See Commonwealth v. Cantalupo, 380 Mass.
173, 177, 402 N.E.2d 1040 (1980) (ample evidence of consent where the defendant
initiated the search by opening his jacket, saying "search me" and
making a gesture indicating an invitation to the officers to search him). The defendant's wife initiated contact with
the police, and formally applied for their assistance. She told them there were weapons in the
bedroom, implicitly because she wanted the police to remove them. She also arranged to be out of the house
before the police arrived to serve the order, strongly implying that she knew
they would enter her home when they served it.
For the same reasons, the officers' search of the bedroom fell within
the search consented to by the wife. See Commonwealth v. Rexach,
20 Mass.App.Ct. 919, 919‑920, 478 N.E.2d 744
(1985). Accordingly, the search was
constitutional under the consent exception to the warrant requirement. (FN2)
[11] Once
the police were legitimately inside the bedroom pursuant to the consent
exception to the warrant requirement, they saw a cocaine packet and seized
it. Under the plain‑view doctrine,
the cocaine was lawfully seized. See Commonwealth v. Blake, 23 Mass.App.Ct. 456, 463‑464, 503 N.E.2d 467 (1987)
(that trooper suspected a scale might be found in the glove compartment did not
taint his sighting it from a lawful position).
It follows that the defendant's suppression motion was properly
denied. Accordingly, we need not
consider whether serving a 209A order constitutes a search. See
Commonwealth v. Canavan, 40 Mass.App.Ct.
642, 645, 667 N.E.2d 264 (1996) (discussing community caretaking doctrine).
There is
no merit to the defendant's assertion that his description of the guns'
location occurred while he was in custody.
See G.L. c. 209A, § 3A (order is civil in
nature). His claim that the statements
should be suppressed fails.
2. Guns in
evidence.
At trial,
Officer Callery testified that the 209A order
authorized him to remove the guns the defendant kept in his bedroom. (FN3)
The jury were also informed that the defendant invited the police to follow
him into the bedroom in order to remove the guns, and that seven guns were
removed. (FN4) The defendant argues that the admission of
evidence of the guns (which were identified by manufacturer and caliber)
constituted "bad act" evidence, which impermissibly suggested to the
jury that the defendant was violent, and necessitates[44 Mass.App.Ct. 932] reversal. We review for prejudicial error. See
Commonwealth v. Daggett, 416 Mass. 347, 352 n. 5, 622 N.E.2d 272 (1993).
[12][13]
It is well‑established that admitting "evidence of a defendant's
criminal or wrongful behavior to show a tendency of bad character or propensity
to commit the crime charged [is prohibited]." Commonwealth v. Leonardi, 413 Mass. 757, 763, 604 N.E.2d 23
(1992). In the present case, however,
there is simply no evidence upon which the jury could have concluded that the
defendant was not legally permitted to possess the weapons, or that the
weapons, by virtue of their manufacturer, or caliber, were inherently
unlawful. Consequently, evidence that
the defendant owned guns was not evidence of criminal or wrongful
behavior. The gun evidence was relevant
to explain the police officers' presence in the defendant's bedroom, and their
opportunity to observe the defendant grab a small package from his dresser in
an attempt to conceal it. We find no
error in admitting evidence of the guns' existence at
trial. See Commonwealth v. Ali, 43 Mass.App.Ct.
549, 563‑564, 684 N.E.2d 1200 (1997).
3. Prosecutor's
comments.
During
closing argument, the prosecutor posed the following question, "When the
police arrived to serve that order, were these two gentlemen at the house ...
were they paying a social visit?"
The defendant argues that this comment was improper because it implies
the men were present to buy drugs, and because it was not based upon any
evidence admitted at trial. We review
for prejudicial error. See Commonwealth v. Daggett, 416 Mass. at
352 n. 5, 622 N.E.2d 272.
At trial,
Officer Callery testified that two men were standing
in the doorway to the defendant's home, speaking with the defendant's mother,
when he arrived to serve the 209A order.
He stated that they lingered outside until the defendant was arrested,
at which time they left. (FN5) Later, the defendant's wife testified that
the defendant expected to receive a cocaine delivery on the night the police
served the 209A order.
[14][15][16]
A prosecutor must limit comment in closing statement to "the evidence and
the fair inferences that can be drawn from the evidence."
Commonwealth v. Ferreira, 381 Mass. 306, 316, 409 N.E.2d 188
(1980). Counsel may, however,
"attempt to assist the jury in their task of analyzing, evaluating, and
applying evidence. Such assistance
includes suggestions by counsel as to what conclusions the jury should draw
from the evidence." Ibid. In this case, the prosecutor's
comment was based upon evidence admitted at trial. Given that evidence, described above, the
prosecutor's suggestion was permissible.
4. Jury
instructions.
At the
conclusion of the evidence, the judge gave a standard instruction, and‑‑in
response to a question from the jury‑‑supplemental instructions, on
trafficking. The defendant argues that
the instructions were improper because they did not highlight the
Commonwealth's obligation to prove that the defendant intentionally possessed
at least 28 grams of cocaine. At trial,
the defendant's wife testified that she dumped some inositol
(a cutting agent) into the defendant's cocaine.
The defendant asserts that the jury should have been [44 Mass.App.Ct. 933] told that he could only intentionally possess the quantity of
cocaine he had in the bag before his wife added the unknown quantity of inositol, because he was unaware of any such addition. (FN6)
We review for prejudicial error.
See Commonwealth v. Daggett,
416 Mass. at 352 n. 5, 622 N.E.2d 272.
[17]
During the initial trafficking charge, the judge correctly stated that the
Commonwealth had to prove beyond a reasonable doubt "that the defendant
had consciously, voluntarily and purposefully possessed the controlled
substance." In addition, in the
supplemental instructions, the judge repeated the distinction between
"trafficking" and the lesser included offense of "possession
with intent to distribute," precisely because the amount of cocaine that
the defendant possessed was at issue.
See Commonwealth v. Tata, 28 Mass.App.Ct. 23, 26,
545 N.E.2d 1179 (1989). The judge
explained that, in order to find the defendant guilty of trafficking, the jury
had to conclude that the controlled substance weighed 28 grams or more. We conclude that these instructions were
sufficient to alert the jury to their obligation to determine how much
controlled substance the defendant knowingly possessed. See
Commonwealth v. Wills, 398 Mass. 768, 780, 500 N.E.2d 1341 (1986)
(defendant not entitled to any particular instruction).
Judgment affirmed.
(FN1.) The defendant cites no authority for
his assertion that, because his wife was not present when the police served the
order, and he was, her consent was invalid.
Accordingly we do not address this claim. But see
Commonwealth v. Ploude, 44 Mass.App.Ct.
137, 140‑141, 688 N.E.2d 1028 (1998) (building coowner's
consent to search valid, even when defendant‑owner refused permission).
(FN2.)
Although unnecessary to the disposition of this case, we add that the police
officers' entry into the bedroom was justified by the exception for exigent
circumstances because the officers reasonably followed the defendant to prevent
violence. See Commonwealth v. Rexach, 20 Mass.App.Ct. at 919‑920, 478 N.E.2d 744.
(FN3.)
The Commonwealth's citation to G.L. c. 209A, § 3B, is
inappropriate as that section was not effective until July 1, 1994. St.1994, c. 24, §§ 6 & 11.
(FN4.)
This testimony differed from the motion judge's findings of fact in his order
denying the motion to suppress.
(FN5.)
This testimony differed from the motion judge's findings of fact in his order
denying the motion to suppress. He found
that the two men entered the house.
(FN6.)
The trafficking statute requires that the net weight of the controlled
substance, or "any mixture
thereof," be twenty‑eight grams or more. G.L. c. 94C, § 32E(b )(2) (emphasis supplied). Thus, the weight or quantity of the cutting
agent that the defendant possessed would be irrelevant until it was mixed into
the controlled substance, see
Commonwealth v. Nutile, 31 Mass.App.Ct.
614, 624, 582 N.E.2d 547 (1991), and until the defendant knew he possessed the
mixture, but not necessarily the mixture's weight. See
Commonwealth v. Rodriguez, 415 Mass. 447, 452‑454, 614 N.E.2d 649
(1993).