DocketNumber: No. 07-P-1960
Citation Numbers: 77 Mass. App. Ct. 270
Judges: Mills
Filed Date: 7/16/2010
Status: Precedential
Modified Date: 6/25/2022
The defendant was indicted on a charge of trafficking in cocaine, in violation of G. L. c. 94C, § 32E(¿>)(2).
In this consolidated appeal from his conviction and from the trial judge’s denial of his new trial motion, the defendant argues that (1) his motion to suppress evidence obtained by searches of his automobile and apartment was erroneously denied and there was no probable cause for his warrantless arrest; (2) the identity of the informant should have been disclosed; (3) he received ineffective assistance of counsel; (4) the judge improperly questioned one of the Commonwealth’s witnesses; and (5) these errors cumulatively require reversal. We affirm.
Background. We summarize the relevant facts from the judge’s findings on the motion to suppress, supplementing them where appropriate by uncontroverted testimony from the suppression hearing. See Commonwealth v. Washington, 449 Mass. 476, 477 (2007). We save for later discussion the facts pertinent to the issues arising at trial.
The defendant was suspected of selling drugs from his
Discussion. 1. Motion to suppress. “In reviewing the denial of a motion to suppress, we accept the motion judge’s subsidiary findings of fact absent clear error, and conduct an independent review of the judge’s ultimate findings and conclusions of law.” Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).
a. The search of the defendant’s apartment. The defendant argues that the search warrant was not supported by probable cause. “To establish probable cause to search, the facts contained in an affidavit, and reasonable inferences that may be drawn from them, must be sufficient for the magistrate to conclude ‘that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.’ ” Commonwealth v. Lopes, 455 Mass. 147, 164-165 (2009), quoting from Commonwealth v. Anthony, 451 Mass. 59, 68 (2008).
In January, 2005, Trooper Racki spoke with a confidential informant he referred to by the pseudonym “Mary.” She had provided information to police in the past that led to an arrest and seizure of drugs; most recently, three months prior to the affidavit. Mary stated that she knew of an individual named “Freddy Velez” who sold cocaine and marijuana. She provided a detailed physical description, offered his address and cellular telephone number, and stated that he sold drugs from his apartment and also made deliveries. Police investigation confirmed the defendant’s name, description, residency at the given address, and use of the given telephone number. During the month preceding the defendant’s arrest, Mary, under police supervision, made three controlled purchases of cocaine at the defendant’s apartment. The third buy occurred within seventy-two hours of the application for the search warrant, which Trooper Racki submitted on the same day as the defendant’s arrest.
We conclude that, in this case, Mary’s veracity was established by the fact that she had previously given information which led to at least one arrest and seizure of contraband. See Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991), and cases cited. Any weakness in her veracity, or in her basis of knowledge — if the latter was not fully established by her statements that the defendant had drugs in his apartment at a certain address and used a certain telephone number, and sold $50 quantities of cocaine in small glassine bags — was cured by the corroborative effect of the three controlled buys at that location. See Commonwealth v. Blake, 413 Mass. 823, 828-829 (1992).
The controlled buys in this case followed the familiar protocol recited in multiple cases. See, e.g., Commonwealth v. Desper, 419 Mass. 163, 168 (1994), and cases cited. The facts that the defendant’s residence was located within a three-unit dwelling,
b. The stop and arrest of the defendant. The defendant correctly asserts that the search warrant itself did not give the troopers authority to seize him one and one-half blocks from his apartment. See Commonwealth v. Charros, 443 Mass. 752, 764 (2005). However, at the time the car was stopped, the troopers were aware of the three controlled buys. Furthermore, they knew that these buys occurred during the month preceding the September 1, 2005, stop of the car, with the most recent within seventy-two hours of the stop. Accordingly, they had probable cause to believe that the defendant had committed a felony as proscribed by G. L. c. 94C, § 32E(b), and thus both the initial stop and subsequent warrantless arrest were valid. See Commonwealth v. Charros, 443 Mass. at 764-765 (controlled buy made under police supervision within past fifteen days provided a basis for arrest, independent of recently issued search warrant).
c. The warrantless search of the defendant’s car. Although the troopers did not have a warrant to search the car, under “the automobile exception to the warrant requirement, the search of the [car] was justified as long as the [troopers] had probable cause to believe that there was contraband in the car.” Commonwealth v. Garden, 451 Mass. 43, 47 (2008). At the motion hearing, Trooper Holland testified that he was trained in the
In sum, the three controlled buys detailed in the affidavit supplied probable cause for the search warrant; the stop and arrest was supported by probable cause to believe the defendant had engaged in cocaine distribution; and the search of the car was proper under the automobile exception. Thus, the motion judge properly denied the defendant’s motions to suppress evidence.
2. Confidential informant. The defendant argues that the identity of the informant should have been disclosed. Here, Mary did not participate in any of the charged crimes and she was not present during the execution of the search warrant, the
3. Ineffective assistance. The defendant argues that he received ineffective assistance of counsel based upon the relaxation, intentional or otherwise, of the adversary process. The record reflects that defense counsel in effect pursued a strategy of “jury nullification” (despite that this was a bench trial), conceded liability for some of the crimes charged, and used the trial in an extended effort to seek leniency in sentencing.
The Supreme Court has emphasized that the second category, which establishes prejudice per se when defense counsel fails to subject the prosecution’s case to meaningful adversary testing, applies only when the attorney’s failure to test the government’s case is “complete.” Bell v. Cone, 535 U.S. 685, 697 (2002). While Massachusetts has not had the opportunity to apply these principles to circumstances such as those presented here, courts in other jurisdictions have held that unauthorized concessions of guilt can constitute a lack of adversary testing within the meaning of United States v. Cronic, supra.
We conclude that while some of defense counsel’s remarks
Nevertheless, we still assess the defendant’s ineffective assistance claim under Commonwealth v. Saferian, 366 Mass. at 96. Here, the trial judge repeatedly recognized the proper scope of his role as fact finder, and he indicated that the attorney’s behavior did not influence him.
4. The judge’s questioning. During trial, the Commonwealth elicited testimony from Andrew Bogle, a former drug chemist with the State police crime laboratory, regarding the weight and identity of certain substances that were admitted in evidence. During the Commonwealth’s direct examination, the judge questioned the witness. The defendant argues that the judge’s questions, which span approximately four transcript pages, impermissibly aided the Commonwealth in meeting its burden of proof. We disagree. The judge’s questions, which simply clarified the representative sampling procedure the chemist
5. Cumulative errors. From what we have said above, it follows that we are not persuaded by the defendant’s argument that his conviction should be reversed due to cumulative errors.
Judgment affirmed.
Order denying motion for new trial affirmed.
The grand jury also indicted the defendant on charges of possession of marijuana with intent to distribute, G. L. c. 94C, § 32C(a); three counts of possession of a class E drug with intent to distribute, G. L. c. 94C, § 32D(a); and possession of a hypodermic needle, G. L. c. 94C, §§ 27, 38.
Prior to trial, the Commonwealth filed a notice of nolle prosequi on the charge of possession of a hypodermic needle. The judge found the defendant guilty on the marijuana charge, but that conviction was placed on file and is not before us. The judge found the defendant not guilty on the charges alleging possession of a class E drug with intent to distribute.
Because a trained officer’s detection of the smell of burnt marijuana permits a search of a vehicle’s passenger compartment under the automobile exception, see Commonwealth v. Garden, 451 Mass. 43, 48 (2008), we need not consider the apparent inconsistency as to when the marijuana roaches were actually discovered.
While the motion judge invoked the automobile exception based upon the probable cause supporting the defendant’s arrest for drug distribution, he noted in dictum his view that police detection of the odor of marijuana also justified the search. In any event we are “free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings.” Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). We also need not consider the applicability of the doctrine of search incident to lawful arrest. See, e.g., Commonwealth v. Bongarzone, 390 Mass. 326, 351 (1983).
The defendant argues that the smell of burnt marijuana was a pretext to justify the search of the car. We defer to the motion judge’s assessment of credibility of testimony, Commonwealth v. Druce, 453 Mass. 686, 699 (2009), and in this case, he explicitly found that Trooper Holland detected an odor of burnt marijuana. The defendant offered nothing that would undermine that finding. Additionally, the lack of a certificate of analysis of the marijuana roaches does not support the defendant’s fabrication argument when the roaches were never introduced in evidence at any proceeding, and the defendant was not charged with possession of the roaches. Production of the roaches is not required when there is credible police testimony concerning the smell of marijuana. Compare Commonwealth v. Kitchings, 40 Mass. App. Ct. 591, 595-596 (1996).
The defendant’s argument that Mary’s identity was subject to automatic discovery lacks merit. The Commonwealth did not intend to present testimony from Mary at trial (and indeed did not do so) and thus any “promises, rewards or inducements” made to her did not need to be disclosed. Mass.R.Crim.P. 14(a)(l)(A)(ix), as appearing in 442 Mass. 1518 (2004).
For example, defense counsel informed the court that after the defendant was arrested, “he went to work in the financial district earning a tremendous salary, earning hundreds of thousands of dollars legitimately, not on the streets, and that is a tremendous turn around.” Defense counsel further argued that the defendant “has had a remarkable turnaround in his life” and that “[vjery few criminal defendants can come before the Court and say, guess what I turned my life around, yes I made a mistake, yes this is what I did.”
In closing argument, defense counsel continued this strategy. He asked the court, “[wjhy should [the defendant] be held accountable for something that is so widely used,” and suggested that based on the evidence, “this is just a, ‘Low level operation.’ ” Perhaps most troublesome is his argument that the defendant does not “need to sit in a cell for five years to be told that what he did in 2005 was wrong; he already knows that, Judge.”
This third category can arise, for example, when “designation of counsel [is] either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard.” United States v. Cronic, 466 U.S. at 660, quoting from Powell v. Alabama, 287 U.S. 45, 53 (1932).
See, e.g., United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991) (defense counsel’s concession in closing that there was no reasonable doubt about disputed factual issues “compelled] an application of the Cronic exception”); People v. Dodson, 331 Ill. App. 3d 187, 194 (2002) (Cronic review warranted when defense counsel did not mount a true challenge to the State’s case, in an effort to procure leniency); State v. Carter, 270 Kan. 426, 441 (2000) (attorney’s “guilt-based defense” in the face of his client’s claim of innocence “compelled] application of the Cronic exception”); State v. Anaya, 134 N.H. 346, 354 (1991) (prejudice was presumed when defense counsel, against the wishes of the defendant, argued to the jury for an acquittal on the
During direct examination of the defendant’s mother, the judge stated, “[o]bviously the question of guilt is still to be determined.” Following counsel’s closing argument, the judge stated, “[t]he Court will of course apply the law to the facts that it finds from the evidence.”