Opinion
14-P-1602
12-01-2015
COMMONWEALTH v. PEDRO DURAN ALIX.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Pedro Duran Alix, appeals from his conviction of possession with intent to distribute heroin, subsequent offense, under G. L. c. 94C, § 32(b), and committing a drug violation within 300 feet of a school or park, under G. L. c. 94C, § 32J. On appeal, the defendant contends that (1) the motion judge erred in denying his motion to suppress evidence based on the inadequacy of the search warrant; (2) the trial judge erred in denying his motion to exclude statements made to police based on their involuntariness; and (3) the jury instructions were inadequate to explain the Commonwealth's burden to prove his statements made to police were voluntary beyond a reasonable doubt. We affirm.
Prior to trial, the defendant filed a motion to suppress evidence seized at his residence on the ground that the affidavit submitted in support of the search warrant failed to establish a nexus between the alleged criminal activity and the place to be searched, i.e., his home. The motion judge denied this motion. Like the motion judge, our inquiry "is restricted to an examination of the information within the four corners of the affidavit." Commonwealth v. Foster, 471 Mass. 236, 241 (2015). We conclude that the affidavit in support of the search warrant application sufficiently described the "nexus between the defendant's drug-selling activity and his residence to establish probable cause to search the residence" of the defendant at 90-92 Congress Street, Apartment 2F, on March 15, 2012. Commonwealth v. O'Day, 440 Mass. 296, 304 (2003).
According to the affidavit, a confidential informant (CI) told police in February, 2012, that a Hispanic male named "Pedro," who drove a gray Saab, was selling heroin in Salem. Due to a June, 2010, investigation involving a Hispanic male of a similar description, detectives were aware that "Pedro" was the defendant Pedro Duran Alix, who drove a 2001 Saab 95 registered in his name.
Within twenty-four hours of February 15, 2012, the CI initiated a transaction controlled and supervised by Salem police (controlled transaction) by calling the defendant on his cellular telephone (cell phone) and requesting to purchase heroin at a designated location. Detectives searched the CI and the CI's vehicle for money and controlled substances (finding neither) and issued the CI money for the controlled transaction before maintaining a continuous view of the CI en route to the transaction location. Two detectives also conducted surveillance at the defendant's residence (which was within a multi-unit apartment building) and observed the defendant exit the residence, enter his gray Saab, and drive directly to the arranged location. Detectives observed the CI enter the defendant's vehicle for approximately one minute. A detective maintained a continuous view of the CI as he followed him to a predetermined location, where the CI handed the detective a quantity of heroin. Meanwhile, detectives maintained a continuous view of the defendant as he returned directly to his residence.
Within twenty-four hours of March 11, 2012, the CI participated in a second controlled transaction initiated by calling the defendant on his cell phone and requesting to purchase heroin at a designated transaction location. After again finding no money or controlled substances on the CI's person or in the CI's vehicle, detectives issued the CI money to conduct the controlled transaction and maintained a continuous view of the CI en route to the transaction location. Detectives again set up surveillance at the defendant's residence, and observed the defendant exit his residence, enter his gray Saab, and proceed directly to the arranged location. Again, the CI entered the defendant's vehicle for approximately one minute before proceeding to a predetermined location where he handed a detective a quantity of heroin. The defendant, meanwhile, was observed by detectives driving to an unknown location that was not his residence. Detective J. Dennis Gaudet submitted this information in his affidavit in support of a search warrant of the defendant's residence, on March 14, 2012.
The affidavit established the defendant's repeated activity of drug delivery originating from his residence, supported in principal by the two controlled transactions closely preceding the grant of the search warrant, and supported additionally by details of a suspended 2010 investigation. See Commonwealth v. Santiago, 452 Mass. 573, 576 (2008) ("[A]ffidavits in support of search warrants are to be approached with a view toward common sense, read in their entirety and with considerable latitude allowed for the drawing of inferences"), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Thus, the nexus was sufficiently established. See Commonwealth v. Escalera, 462 Mass. 636, 643 (2012) ("Observations by police of a suspect on multiple occasions leaving his residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in his residence"); cf. Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 104-106 (2007) (finding sufficient nexus to search defendant's residence when there was information suggesting that he sold large quantities of drugs and he was observed completing two controlled transactions, but was only observed both leaving from and returning to his residence on one occasion); contrast Commonwealth v. Pina, 453 Mass. 438, 441-442 (2009) (finding no sufficient nexus to search defendant's residence when affidavit established only that he sold drugs over an unspecified time period to CI and that defendant on one occasion drove from his residence to controlled transaction and returned directly to his residence).
During a June, 2010, investigation, detectives observed the defendant leave his residence, enter a vehicle, travel to a transaction location, and return to his residence after conducting controlled transactions of heroin.
The defendant also contends that his statements made to police executing the search warrant were involuntary and should have been suppressed at trial. Upon serving the search warrant on his residence, officers found the defendant in the shower, identified themselves, and handed him a towel which he wrapped around himself. The officers then escorted the defendant to the kitchen without restraints and explained that they had a search warrant for the apartment as a result of a narcotics investigation. The defendant viewed the search warrant at his request and then was read his Miranda rights from a card which he signed. The officers then advised the defendant that if he cooperated and told them where any drugs in the apartment were, they would not have to "tear apart the whole apartment" to carry out the search. The defendant admitted to the officers that there were "10 grams inside the safe" in his bedroom, and led them to the location whereupon six bags of heroin were found.
The defendant contends on appeal that neither the Miranda waiver nor the statements that he gave were voluntary due to his being clad only in a towel at the time of questioning and the officer's offer not to search and disrupt the whole apartment if the defendant cooperated with the search. At trial his focus was on the voluntariness of the statements. "[I]f the defendant raises the voluntariness of his confession or admission, the judge, before allowing such a statement to be admitted in evidence, must hold a hearing outside the presence of the jury in order to determine whether the statement was voluntary." Commonwealth v. Sunahara, 455 Mass. 832, 834 (2010). After a preliminary voir dire, the trial judge found the officers' testimony credible and determined that the defendant's statements were the product of his free will and rational intellect. The defendant had "the presence of mind, despite the fact of being taken from the shower, to make sure the officers had lawful authority" by asking to see the search warrant. Furthermore, the officers' offer not to search the defendant's entire apartment did not amount to a coercive threat or quid pro quo, but instead a good faith promise not to lawfully search through and thereby disrupt all of his personal belongings if he cooperated. We discern no error in the judge's findings or analysis regarding the defendant's motion to exclude his statements.
"The voluntariness of a Miranda waiver and the voluntariness of a statement are separate and distinct inquiries, but the 'totality of the circumstances' test under each analysis is the same." Commonwealth v. Jackson, 432 Mass. 82, 85-86 (2000). To the extent the defendant makes a separate argument regarding the waiver of Miranda warnings, we conclude that there is no merit to this claim as well, as the judge's fact findings establish the waiver was made voluntarily, knowingly, and intelligently. Commonwealth v. Edwards, 420 Mass. 666, 669-670 (1995).
Finally, the defendant contends that the judge's humane practice instruction to the jury was inadequate to explain the Commonwealth's burden to prove his statements made to police were voluntary beyond a reasonable doubt. Under the Commonwealth's humane practice doctrine, if the voluntariness of the defendant's statements remains a live issue at trial, as it did in this case, the judge must submit the issue of voluntariness to the jury. Ibid. When reviewing a jury charge for error, we must "view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). At trial, the judge instructed the jury that they must consider the defendant's statements to police "in a very special way." He went on: "Before you may consider [the statements at issue] as evidence in the case, you must be satisfied beyond a reasonable doubt, first, that they were made, and, second, that they were the product of Mr. Alix's free will in a rational intellect." The judge went on to instruct the jury that these statements must not be considered if they were not satisfied beyond a reasonable doubt. The judge stated at least three times during his instruction that the Commonwealth has the burden of proving its entire case beyond a reasonable doubt. "While it is highly preferable that the burden of beyond a reasonable doubt be specifically referenced in the humane practice instruction, the failure to do so does not render it inadequate where, as here, the judge's charge fully and repeatedly informed the jury that the burden was on the prosecution to prove the case and all of its elements beyond a reasonable doubt." Commonwealth v. Boateng, 438 Mass. 498, 506 n.6 (2003).
On separate occasions, the judge stated, "The burden is always on the Commonwealth to prove its case beyond a reasonable doubt," . . . "the burden of proof never shifts," and "[t]he burden of proof is on the prosecutor."
For the above reasons, we conclude that the judge correctly denied the defendant's motions to suppress, and that the judge's jury instructions adequately complied with Massachusetts humane practice requirements.
Judgments affirmed.
By the Court (Kafker, C.J., Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 1, 2015.