|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Pratt, 407
Supreme Judicial Court of Massachusetts, Essex.
Submitted
Decided
Brownlow M. Speer,
Lissa C. Pancare,
Robert J. Bender, Asst. Dist. Atty., for the
Com.
Before [407
LIACOS, Chief Justice.
The
defendants James J. Pratt (Pratt) and his wife, Penny S. Pratt (Mrs. Pratt),
were convicted by a jury in the Superior Court in
1. Facts.
We summarize the evidence in a light most favorable to the Commonwealth,
considering the evidence at the close of the Commonwealth's case.
Commonwealth v. Mazza, 399
In
the early morning hours of October 19, 1987, State Trooper Gregory Dern and about fourteen fellow State troopers prepared to
execute a warrant to search for drugs at a house located at 194 Southern Avenue
in Essex, as well as at a small one‑room cottage behind the house, a
small shed, the land behind the property, and the persons of Pratt and Mrs.
Pratt. One Lieutenant James Jajuga stopped Pratt on Route 128 and transported him to
the house in Essex, which was owned by Pratt's parents. While one group of officers detained Pratt at
the house, another group of officers proceeded to the small cottage which was
located behind the house, and which served as the Pratts'
residence.
State
Trooper Dern knocked on the cottage door. A female voice responded from within the
cottage, "Who is it?" Dern replied that it was the police, that he had a warrant,
and asked the occupant to open the door.
There was a pause. Again the
voice in the cottage said, "Who is it?" Dern answered,
"Police. I have a warrant. Will you open the door, please." Yet, again, the woman's voice asked,
"Who is it?" At this point, Dern forced the door open and entered the cottage.
On
entering the cottage, Trooper Dern and the police
officers accompanying him observed Mrs. Pratt lying in bed. Dern showed Mrs.
Pratt the search warrant, explained the
officers' purpose for being in the cottage, and began searching the
cottage. In plain view, sitting on a
stove, was a gold‑[407 Mass.
650] colored bowl containing some
partially burnt glassine bags with the term "7‑LIFE" stamped on
them. (FN3) Also located on the stove was a spoon that
was burned on the bottom, with a small swab of cotton on top, (FN4) and some
additional glassine bags.
The
search in the cottage proceeded. After
five or ten minutes, Trooper Brian Lilly was about to search some shelves above
the bed, where some folded towels, stockings, and toiletries lay. Just as Lilly was reaching for the shelf,
Mrs. Pratt got out of bed, pointed to the shelf, and began to speak. (FN5)
While officers held Mrs. Pratt, Lilly searched the shelf. He found a brown wrapper, within which were
forty‑four glassine bags, each bearing the inscription "7‑LIFE." They were wrapped in packets of ten, except
for one packet which contained four bags.
Each bag contained heroin. Also
on the shelf were forty‑four round tablets wrapped in a piece of tinfoil,
later identified as methaqualones. (FN6)
In the same place, the police found a brown bottle which contained fifty‑two
methadone tablets, as well as seven hypodermic needles and seven syringes.
From
behind the stove, the police seized a small bag of white powdered substance
which proved to be dextrose, commonly used as a dilutant
in heroin. They also found documents in
a cannister under the bed, including identification
cards with the Pratts' names on them, as well as the Pratts' marriage certificate. Near the bed was a telephone; next to the telephone the police found a
piece of paper with some handwritten notations relating to drug transactions.
[407 Mass. 651] After the search of the cottage was completed, approximately
fifteen police officers formed a line and started walking from the rear of the
cottage across the property, turning over rocks and logs in search of
drugs. One officer overturned a rock,
lifted up a square matted patch of sod, and found a white plastic bag
containing a glass jar with white pills in it.
Nearby, two more pill‑filled bottles were found. In total, 1,357 methaqualone
pills were discovered. Under a rotted
log, the police found a plastic container wrapped inside a black trash
bag. In the container were four aluminum
foil packages; inside each package were
two brown packages, each of which contained approximately fifty glassine bags
of heroin with the inscription "7‑LIFE" stamped on them,
wrapped in units of ten.
[1]
2. Sufficiency of the evidence. Arguing that there was insufficient evidence
to prove that she was in possession of the contraband in the cottage or on the
property, Mrs. Pratt claims that the trial judge erroneously denied her motion
for a required finding of not guilty. We
disagree.
"The
essential question in evaluating the denial of a motion for a required finding
of not guilty is whether the evidence received, viewed in a light most
favorable to the Commonwealth, is sufficient so that the jury 'might properly
draw inferences, not too remote in the ordinary course of events, or forbidden
by any rule of law, and conclude upon all the established circumstances and
warranted inferences that the guilt of the defendant was proved beyond a
reasonable doubt.' " Commonwealth v. Pope, 406 Mass. 581, 584,
549 N.E.2d 1120 (1990), quoting
Commonwealth v. Clary, 388 Mass. 583, 588, 447 N.E.2d 1217 (1983).
"Possession
implies 'control and power,' ... exclusive or joint ..., or, in the case of
'constructive possession,' knowledge coupled with the ability and intention to
exercise dominion and control."
Commonwealth v. Brzezinski, 405 Mass. 401,
409, 540 N.E.2d 1325 (1989), quoting
Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498,
459 N.E.2d 1236 (1984).
The
evidence warranted an inference that Mrs. Pratt had knowledge of the drugs
found. She had been sitting quietly [407 Mass. 652] on the bed as the police conducted their search, and only when a
police officer reached a shelf which contained a large quantity of contraband,
at least five minutes into the search, did Mrs. Pratt get up from the bed,
point to the shelf, and begin to speak.
The jury could infer that Mrs. Pratt's gesture stemmed from her
knowledge of the contraband's presence.
(FN7) In addition, there was
evidence that drugs, drug paraphernalia, and a drug transaction list were in
plain view in the small one‑room cottage.
See Commonwealth v. Brzezinski, supra 405 Mass. at 410, 540 N.E.2d 1325;
Commonwealth v. Buckley, 354 Mass. 508, 513, 238 N.E.2d 335
(1968). The fact that the drugs found in
the woods were packaged in an identical manner to those found in the cottage,
and that they were of the same type and "brand," allowed an inference
that Mrs. Pratt knew of their presence.
The
jury could also infer that Mrs. Pratt had the ability and intention to exercise
dominion and control over the contraband.
There was evidence that Mrs. Pratt resided with Pratt in the cottage
where a portion of the contraband was stored.
"When contraband is found in a dwelling shared by a defendant and
one or more other persons, a finder of fact may properly infer that the
defendant is in possession of the contraband ... from evidence that the
contraband was found in proximity to personal effects of the defendant in areas
of the dwelling, such as a bedroom or closet, to which other evidence indicates
the defendant has a particular relationship." Commonwealth v. Rarick, 23 Mass.App.Ct. 912,
912, 499 N.E.2d 1233 (1986), and cases cited.
Forty‑four bags of heroin, forty‑four methaqualude
tablets, a bottle of methadone tablets, and seven syringes and needles were all
found on an open shelf amidst towels, stockings, and toiletries. From her possession of the drugs in the
cottage, from the similarity between the packaging and the type of drugs found
in the cottage and those found in the woods, from her knowledge, as evidenced
by the drug transaction sheet, of the scale of the drug operation,[407 Mass. 653] and from her access to and
use of the surrounding property, the jury could infer that Mrs. Pratt was in
possession of the drugs found on the property.
[2]
There was also sufficient evidence presented for the jury to find that Mrs.
Pratt harbored the requisite intent to distribute. "Possession of a large quantity of an
illicit narcotic raises an inference of intent to distribute."
Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758, 470 N.E.2d 811 (1984), and cases
cited. See also Commonwealth v. Gill, 2 Mass.App.Ct.
653, 657, 318 N.E.2d 628 (1974). In
conjunction with the quantity of drugs found, the manner of packaging permitted
an inference of an intent to distribute. Commonwealth v. Sendele,
supra 18 Mass.App.Ct. at 758, 470 N.E.2d
811. There was evidence that the heroin
was packaged in amounts of one dose per glassine bag, that each bag was marked
with a brand name popular in the Cape Ann area, and that the bags were bundled
into groups of ten and wrapped together in packages of fifty. A police officer testified that this method
of packaging is a common practice for heroin distribution. The drug transaction list found in plain view
in the cottage also could contribute to an inference of intent to
distribute. See Commonwealth v. DeCastro, 24 Mass.App.Ct. 937, 939, 509 N.E.2d 25 (1987).
[3]
Pratt and Mrs. Pratt claim that there was insufficient evidence for the jury to
find that a conspiracy existed and that, as to these indictments, the judge
should
have granted their motions for required findings of not guilty. We disagree.
The
crime of conspiracy "is complete upon the formation of an agreement and a
combination to commit, or cause[d] to be committed, a crime or an unlawful
act." Commonwealth v. Nighelli,
13 Mass.App.Ct. 590, 593‑594, 435 N.E.2d 1058
(1982), and cases cited. "A
conspiracy may be proved by circumstantial evidence, and this is the usual mode
of proving it, since it is not often that direct evidence can be had. The acts of different persons who are shown
to have known each other, or to have been in communication with each other,
directed towards the accomplishment of the same object ... may be satisfactory
proof of a conspiracy." Commonwealth v. Smith, 163 Mass. 411, 417‑418,
40 N.E. 189 (1895).
[407 Mass. 654] [4][5] There was sufficient evidence of a conspiracy to send the
indictments to the jury. As discussed
above, the jury could conclude that Mrs. Pratt possessed the contraband with
intent to distribute. Further, there was
sufficient evidence for the jury to find that Pratt himself was guilty of the
same crime. (FN8) The jury could infer that the pair, living
together in a one‑room cottage, working toward a common end, were engaged
in a conspiracy. See Commonwealth v. Nighelli, supra 13 Mass.App.Ct. at 594, 435 N.E.2d 1058. Mrs. Pratt need not have been so heavily
involved in the operation as her husband in order for her to be found guilty of
conspiracy. See Attorney Gen. v. Tufts, 239 Mass. 458, 493, 132 N.E. 322
(1921). (FN9)
[6]
3. The judge's charge. The defendant argues that the judge
erroneously instructed the jury not to speculate as to the credibility of
certain individuals not called by the Commonwealth to testify. There was no error.
The
defendant, who represented himself at trial, grounded his defense on the theory
that the four informants who were designated in the search warrant affidavit
may have planted the drugs on his property.
The defendant called the one informant who was named in the affidavit,
Steve Lambert, a heroin addict, as a witness on his behalf. The identities of the other three informants,
C‑1, C‑2, and C‑3, had not been disclosed by the police, and
a defense motion for disclosure of their identities had been denied. The defendant cross‑examined police
witnesses as to these informants' backgrounds. [407 Mass. 655] One police officer testified that C‑1
was a known heroin dealer. Another
officer testified that C‑2 was a heroin user and purchaser.
The
defendant, in his closing argument to the jury, theorized that one or more of
the informants may have framed him in order to curry favor with the
police. Pratt included the following
statement in his argument. "Is
Steven Lambert the best that the Commonwealth had to offer? If he is the best the Commonwealth had to
offer in this case, can you imagine what C‑1, C‑2 and C‑3 are
like? Can you imagine what sort of
characters these people are?" In
order to put this statement into context, we quote portions of the defendant's
argument at length in the margin. (FN10)
[407 Mass. 656] The judge, toward the beginning of his charge, made some comments
related to the above portion of the defendant's argument. We quote the judge's instruction in context:
"I want to discuss first of all what
is evidence, and before I tell you what is evidence let's talk about what is
not evidence, certain things you should put out of your mind and forget. It is obvious that when you go out and
deliberate you should not come to any conclusion based on bias or prejudice or
some preconceived hangup. That is not evidence. Put it out of your mind. Because you suspect something to be so,
that's not evidence. Mere suspicion is
not evidence. It is not evidence if you
go out in the jury room and start guessing, engaging in conjecture.
"I
believe at one point in final arguments it was said: Imagine what characters these people are‑‑meaning
C‑1, C‑2, C‑3. I am
telling you, don't imagine. That is
engaging in a guessing game. Don't do
that. That is not evidence. You can not imagine. You [407
Mass. 657] cannot guess. You can not speculate " (emphasis
supplied). (FN11)
Our analysis begins with the proposition
that "[w]ithin the bounds of the evidence and
the fair inferences from the evidence, great latitude should be permitted to
counsel in argument." Commonwealth v. Gilmore, 399 Mass. 741,
745, 506 N.E.2d 883 (1987). Defense
counsel may point out the weaknesses of the prosecution's case, including
decisions of the Commonwealth not to introduce certain items of evidence. Id.
at 744‑746, 506 N.E.2d 883.
"Counsel may suggest inferences which the jury may draw from the
evidence, and the judge should not 'invade the province of the jury to decide
what inferences to draw from certain evidence.' " Id. at 745, 506 N.E.2d 883,
quoting Commonwealth v. Bowden, 379
Mass. 472, 486, 399 N.E.2d 482 (1980).
Counsel may not ask the jury to speculate on occurrences not fairly
inferable from the evidence. Commonwealth v. Corriveau,
396 Mass. 319, 339, 486 N.E.2d 29 (1985).
While it may have been preferable for the
judge not to have singled out the defendant's words to illustrate the concept
that the jury should refrain from engaging in speculation, the judge's remarks
did not amount to error. The judge did
not prevent the jury from considering aspects of the informants' credibility
which were grounded in the evidence.
Thus, the jury could take into account, consistent with the judge's
instructions, that at least one of the informants was a known heroin dealer and
that another was a heroin purchaser. The
defendant was permitted to suggest that the failure of the Commonwealth to call
the unnamed informants reflected adversely on the strength of the
Commonwealth's case. The judge's
instruction was a narrow admonition for the jury to refrain from
"imagining" and engaging in a "guessing game." As such, it did not impermissibly frustrate
the defendant's opportunity to raise reasonable doubts based [407 Mass. 658] on the evidence before the jury and the fair inferences which
could be drawn therefrom.
4.
Search warrant. Pratt challenges
the validity of the search warrant and claims that the motion judge erred in
denying his motion to suppress evidence seized pursuant to the warrant. We address each of the defendant's arguments
seriatim.
[7] a.
Material omission. Pratt claims
that a material omission of fact from the affidavit in support of the warrant
rendered its contents unworthy of credence by the magistrate. The affidavit, submitted on October 16, 1987,
contained ten paragraphs which had been previously submitted in April of that
year in an affidavit accompanying an application in another court for a warrant
to search Pratt. The search pursuant to
the April warrant uncovered no contraband.
In the October affidavit, the affiant did not mention the unsuccessful
search and stated that he had "not previously submitted the same
application." The October
affidavit included additional paragraphs relating to events which transpired in
October, 1987. Pratt claims that the
omission from the October affidavit that a substantial portion of its contents
had previously been submitted to another court, and that the execution of the
resulting warrant had not revealed any contraband, requires that portion of the
affidavit be struck.
The motion judge held a hearing pursuant
to Franks v. Delaware, 438 U.S. 154,
98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Commonwealth v. Nine Hundred & Ninety‑two
Dollars, 383 Mass. 764, 422 N.E.2d 767 (1981). The burden at such a hearing is on the
defendant to show by a preponderance of the evidence that the affiant made
false statements in the warrant affidavit, "knowingly and intentionally,
or with reckless disregard for the truth," Franks, supra at 155, 98 S.Ct. at 2676,
misstatements which "bespeak bad faith," Nine Hundred & Ninety‑two Dollars, supra, 383 Mass. at
771, 422 N.E.2d 767. (FN12)
[407
Mass. 659] The motion judge
concluded that the affiant did not act in bad faith, and the evidence
introduced at the hearing supported his determination. The motion judge could conclude that the
affiant believed, in good faith, that he had "not previously submitted the
same application," because the October affidavit contained significant new
information relating to Pratt's alleged drug‑dealing. Furthermore, the motion judge found that the
police executed the April search warrant "prematurely" and that the
affiant "attributed the failure on his actions and not on the information
received from the informant."
Considering that the affiant never doubted the existence of probable
cause to support the April warrant, the motion judge properly could conclude
that the affiant acted in good faith when he omitted references to the aborted search in the October
affidavit. There was no error.
[8] b.
Trash bag search. One paragraph of
the affidavit in support of the October search warrant included a description
by the affiant of a search of a green trash bag which the police found in front
of Pratt's residence. (FN13) Pratt claims that the search constituted a
violation of his right against unreasonable[407
Mass. 660] searches and seizures under art. 14 of the
Massachusetts Declaration of Rights, contending that he had a reasonable
expectation of privacy in the contents of the trash bag. We disagree.
In considering whether there has been a
search under art. 14, it must be determined whether the defendant had a
subjective expectation of privacy which can be recognized as
"reasonable." Commonwealth v. Panetti,
406 Mass. 230, 234‑235, 547 N.E.2d 46 (1989). In the circumstances of this case, the
defendant cannot be said to have had a reasonable expectation of privacy in the
contents of his trash bag. The bag was
placed three feet from the street near the driveway in front of Pratt's
residence. It sat exposed to the public,
waiting to be gathered up by the trash collector the following morning. This is not a case where police officers went
to the defendant's back porch to seize garbage which had not yet been placed at
the curbside for collection. See People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969). Rather, in this case the defendant can be
said to have abandoned his privacy interests in his garbage through the
placement of his trash bags at the curb for collection. See
Commonwealth v. Chappee, 397 Mass. 508, 512‑513,
492 N.E.2d 719 (1986) (same result under Fourth Amendment to the United States
Constitution).
The fact that an Essex ordinance allowed
only licensed trash collectors to transport garbage does not make the
defendant's subjective expectation of privacy any more reasonable. The licensed collectors may have rummaged
through the defendant's garbage themselves.
Secondly, once the defendant knew that the garbage would be picked up by
licensed collectors and deposited at the local landfill, he should have known
that others could gain access to the garbage.
At least with respect to the facts of
this particular case, we are not persuaded that our Constitution provides
broader protection than the United States Constitution with regard to privacy
interests in garbage. We agree with the
Supreme Court's remarks in California v.
Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 1628‑1629,
100 L.Ed.2d 30 (1988): "It is
common knowledge that plastic garbage bags left on or at the side of a public
street are readily accessible [407
Mass. 661] to animals, children,
scavengers, snoops, and other members of the public.... Moreover, respondents placed their refuse at
the curb for the express purpose of conveying it to a third party, the trash
collector, who might himself have sorted through respondents' trash or
permitted others, such as the police, to do so.
Accordingly, having deposited their garbage 'in an area particularly
suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of
having strangers take it,' ... respondents could have no reasonable expectation
of privacy in the inculpatory items that they
discarded." (Footnotes and
citations omitted.)
[9] c.
Search of the land. Pratt claims
that the affidavit failed to establish probable cause to search the land behind
the Pratt residence because it purportedly demonstrated no nexus between the
evidence sought and the land. We
disagree.
"An affidavit must contain enough
information for the issuing magistrate to determine that the items sought are
related to the criminal activity under investigation, and that they reasonably
may be expected to be found in the place to be searched. Commonwealth v. Cefalo, 381 Mass. 319, 328‑329, 409 N.E.2d 719
(1980). A nexus between the items to be
seized and the place to be searched need not be based on direct observation and
may be found in 'the type of crime, the nature of the missing items, the extent
of the suspect's opportunity for concealment, and normal inferences as to where
a criminal would be likely to hide stolen property.' " Commonwealth v. Burt, 393
Mass. 703, 715, 473 N.E.2d 683 (1985), quoting Commonwealth v. Cinelli, 389 Mass. 197,
213, 449 N.E.2d 1207 (1983).
[10] The affidavit provided sufficient
information to show a nexus between the items to be seized and the land behind
the defendant's house. One informant
described a drug transaction which occurred between "him," a
"second individual," and Pratt on or about October 16, 1987. The "second individual," telephoned
Pratt at his cottage, and the two met Pratt a short distance from his residence,
where the second individual handed Pratt an unspecified amount of money. "Pratt then took [the informant] and the
second individual to[407 Mass. 662]
a wooded area near 194 Southern Ave. and directed the second individualto a location where the heroin was secreted. The retrieved packet was described by [the
informant] as containing 50 glassine bags bearing the inscription 7‑Life
and wrapped in brown paper."
(Emphasis supplied.) The
informant then observed Pratt returning to his house. The affidavit also recited the informant's
statement that "James Pratt is extremely cautious and fearful of police
detection and once stated to [the informant] that if the police came to his
residence they would never find the heroin because of the size of the property
on which he lives and his method of secreting the heroin." The magistrate reasonably could infer from
these statements in the affidavit that contraband could be expected to be found
on the land surrounding the defendant's residence. (FN14)
For the above reasons the judgments are
affirmed.
So
ordered.
(FN1.) Six against Penny S. Pratt and three
against James J. Pratt.
(FN2.) Pratt was convicted of possession of a
class B controlled substance, methaqualone, with
intent to distribute, in violation of G.L. c. 94C, §
32A (1988 ed.); of conspiracy with Mrs.
Pratt to possess a class B controlled substance, methaqualone,
with intent to distribute, in violation of G.L. c.
94C, § 40 (1988 ed.); of possession of
a class A controlled substance, heroin, with intent to distribute, in violation
of G.L. c. 94C, § 32(a ) (1988 ed.); of
conspiracy with Mrs. Pratt to possess a class A controlled substance, heroin,
with intent to distribute, in violation of G.L. c.
94C, § 40; of possession of a class B controlled
substance, methadone, in violation of G.L. c. 94C, §
34 (1988 ed.); and of possession of a
hypodermic syringe or needle, in violation of G.L. c.
94C, § 27(a ) (1988 ed.).
Mrs. Pratt was convicted of
possession of a class B controlled substance, methaqualone,
with intent to distribute, as a second offender, in violation of G.L. c. 94C, § 32A (1988 ed.); of conspiracy with Pratt to possess a class
B controlled substance, methaqualone, with intent to
distribute, in violation of G.L. c. 94C, § 40; of possession of a class A controlled
substance, heroin, with intent to distribute, in violation of G.L. c. 94C, § 32(a); of conspiracy with Pratt to possess a class A
controlled substance, heroin, with intent to distribute, in violation of G.L. c. 94C, § 40;
of possession of a class B controlled substance, methadone, in violation
of G.L. c. 94C, § 34;
of possession of a hypodermic syringe or needle, in violation of G.L. c. 94C, § 27(a).
The
defendants waived their right to have the conspiracy indictments tried
separately. See Mass.R.Crim.P.
9(e), 378 Mass. 859 (1979).
(FN3.)
"7‑LIFE" is apparently a brand name of a type of heroin popular
in the Cape Ann area. A single
"glassine bag" commonly contains a single dosage of heroin. The price of one bag of heroin in October,
1987, was approximately $50.
(FN4.) A spoon often is used to heat
heroin. A cotton swab often is used to
strain the heroin.
(FN5.) Her statement was not admitted in
evidence.
(FN6.) Methaqualone,
also known as "quaalude" or "lude," is a tranquilizing drug no longer manufactured
in this country, which, as of October, 1987, carried a value of approximately
$5 a pill.
(FN7.) Mrs. Pratt's delay in opening the door
could be considered by the jury as an indication of consciousness of
guilt. See Commonwealth v. Brzezinski, supra 405 Mass. at 410, 540 N.E.2d 1325.
(FN8.) On appeal, Pratt does not claim that
the judge erred in denying his motion for a required finding of not guilty as
to the indictments not dealing with conspiracy, nor did he so move at
trial. We add that there was additional
evidence presented to the jury, not enumerated in our recitation of the facts,
which would allow a jury to conclude that Pratt was heavily involved in a drug‑dealing
operation.
(FN9.) Because he failed to raise the issue
below, we choose not to address Pratt's argument that at common law he and his
wife are incapable of forming a conspiracy.
See Commonwealth v. Oakes, 407
Mass. 92, 94‑95, 551 N.E.2d 910 (1990).
We perceive no substantial risk of a miscarriage of justice. Id. We also note that the question whether a
husband and wife may be coconspirators is not a question of the sufficiency of
the evidence, but a question of law. See United States v. Dege,
364 U.S. 51, 52, 80 S.Ct. 1589, 1590, 4 L.Ed.2d 1563
(1960).
(FN10.) "I mean, why would a heroin
dealer call up the police station and tell them: Hey, James Pratt is selling heroin? I'll tell you why they did it. Because they were under indictment. They were afraid to go to jail and they were
willing to do anything to get out of jail, and what that included was putting
drugs in my yard that has no fences, no gates.
And I submit that that fingerprint on those containers may have been
Steven Lambert's or any one of these confidential informants. If the Commonwealth in this case had so
strong a case against me, why did they name Steven Lambert as an
informant? Do you believe that Steven
Lambert's testimony was credible in this case?
First he said there were no promises made to him and then in the same
breath he said he was released from custody.
Why was he released from custody in a heroin case? I mean, there can only be one answer‑‑he
agreed to cooperate with the case and whatever means it took. You heard his testimony: I would do anything to get out of
custody. Anything.
"Here's
a man‑‑and not just Steven Lambert but unnamed confidential
informants‑‑whose testimony showed they had been arrested ten,
twenty times, and they are on the street.
Heroin dealers, they are on that street today.
"They
gave testimony that some of them may have been in custody when they made these
statements. Wouldn't it seem reasonable
that some brilliant entrepreneur, a major heroin trafficker who had been
arrested would say: ... What can I do to
get out of this case?
"Well,
one thing they could do is go walking up into the woods where there are no
fences, in the middle of the country, and plant drugs. They can do that because they have no fear of
having to be called in in front of a jury and asked: Hey, did you do that? There is no fear for that. They have no problem with doing it because
what they have done will never be exposed.
They can do anything they want because there is no fear of going to
jail. There is no fear of being caught
and there is no fear of being cross‑examined....
"You
have heard about these confidential informants in this case. Do we know anything about them? Have we heard anything about these people? Do you know what kind of people they
are? Are any of these confidential
informants capable of doing this?
"We
have heard Mr. Lambert. Do you remember
Mr. Lambert? Do you remember what kind
of person he was?
"In
this case you are asked to convict me based on the evidence.... You are going to hear arguments that are
going to say that you have heard testimony from credible witnesses. Well, I am not going to argue that the police
are not credible. They may do things at
times that in this case may seem a little high handed, but we know nothing of
these other informants. We know nothing
of C‑1, C‑2, C‑3, heroin dealers, informants, confidential
informants who, for whatever reason that we don't even know of because we will
never see them, what motives, what opportunities and what reasons they had for
either giving this information or trying to get out of jail. We don't know what they are capable of doing.
"Is
Steven Lambert the best that the Commonwealth had to offer? If he is the best that the
Commonwealth had to offer in this case, can you imagine what C‑1, C‑2
and C‑3 are like? Can you imagine
what sort of characters these people are?" (emphasis supplied)
(FN11.)
The defendant (through his standby counsel) timely objected to the emphasized
portion of the judge's charge.
(FN12.) As yet, we have not had to decide
whether the remedy for such a misstatement is excision of the false material or
rather is "den[ial] of admissibility to all
evidence obtained" pursuant to the resulting warrant. Nine Hundred & Ninety‑two
Dollars, 383 Mass. 764, 768, 422 N.E.2d 767 (1981). See
Commonwealth v. Ramos, 402 Mass. 209, 215 n. 4, 521 N.E.2d 1002
(1988). We need not resolve that
question today.
(FN13.) The affidavit stated: "During the evening hours of Tuesday,
October 13, 1987, Ryan, Sucharski and other Officers
retrieved a green plastic trash bag which was abandoned directly in front of [
] Pratt's residence at 194 Southern Ave., Essex. This green trash bag was obviously placed on
the side of the road to be picked up by the contracted trash collector for
Essex, Ma. A check with Essex
authorities revealed that the trash pickup for Southern Ave., Essex is
accomplished every other Wednesday.
Wednesday, October 14, 1987 was the assigned day. The green trash bag was inventoried and the
following items were located:
"A)
A document bearing the name James Pratt, Southern Ave., Essex, Ma.
"B)
Letterheads bearing the name 'Tracy Temporaries'.
"C)
Several pieces of paper with numerical notations.
"D)
Numerous glassine bags (partially burnt) one of which bears the Inscription 7‑Life.
"E)
Numerous empty brown packets.
"F)
Syringe."
The
motion judge, in his findings, essentially credited the above account,
additionally finding that the trash bag was three feet from the paved road next
to a telephone pole located eight to ten feet from the driveway.
(FN14.) We note that, while standing alone,
the information relating to the defendant's activity in March and April would
have failed to establish that probable cause existed in October to search the
defendant and his premises, in this case "the affidavit described an
ongoing criminal operation." Commonwealth v. Burt, 393 Mass. 703, 716,
473 N.E.2d 683 (1985). "[W]here an
affidavit recites a mere isolated violation then it is not unreasonable to
believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites
activity indicating protracted or continuous conduct, time is of less
significance." Id., quoting Commonwealth v. Vynorius, 369 Mass. 17,
25, 336 N.E.2d 898 (1975).