Opinion
10-P-1413
10-11-2011
COMMONWEALTH v. LEANDRO VILLORIA-TAVARES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Appealing from convictions of trafficking cocaine and a school zone drug violation, the defendant contends that reversal is required because of errors in the denial of his motions to suppress evidence and statements, and because of responses of a Commonwealth witness during cross-examination. We affirm.
1. The motion to suppress evidence. An affidavit being reviewed for probable cause should be 'read as a whole, not parsed, severed, and subjected to hypercritical analysis.' Commonwealth v. Blake, 413 Mass. 823, 827 (1992). We examine the affidavit in a commonsense and realistic fashion, and the inferences drawn 'need only be reasonable and possible; [] not necessary or inescapable.' Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). So viewed, Detective Cabral's affidavit establishes probable cause to believe that the defendant was engaged in a drug delivery service and that cocaine and other evidence of that criminal activity would be found at 302 Broadway, second floor east, in Fall River. See Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 109 (2007) (probable cause found where controlled purchases corroborated defendant's method of delivering drugs away from his residence after receiving phone calls from buyers). Cabral's affidavit establishes that after a tip from a confidential informant (CI), the police began investigation and surveillance of a man named 'Viejo' (the defendant), who was selling cocaine using a delivery system to avoid drawing the attention of law enforcement to his residence. The police learned where he resided by following him from the first controlled buy to 302 Broadway, where he parked the white Oldsmobile automobile with Rhode Island registration in the driveway and entered the dwelling.
In subsequent surveillance, the police observed the defendant exit and return to 302 Broadway and appear at a window on the second floor. A check of utility records revealed that Gregoria Baez, who was the registered owner of the Oldsmobile, was also the listed customer for utilities at 302 Broadway, second floor. On another occasion, the police observed the defendant leave 302 Broadway, enter the Oldsmobile parked in the driveway, and drive to Rhode Island. There, he engaged in what appeared to Cabral, an experienced drug investigator, to be a drug transaction.
The police then arranged for a second controlled buy. With surveillance already in place at 302 Broadway, the CI placed a call to order cocaine. Detectives Smith and Falandys observed the defendant exit 302 Broadway, enter the Oldsmobile, and drive to the prearranged location where Cabral witnessed the controlled buy. Detectives Smith and Falandys followed the defendant from the controlled buy directly back to 302 Broadway where he parked the Oldsmobile in the driveway and entered 302 Broadway.
Viewed in a commonsense and realistic manner, Detective Cabral's affidavit set forth probable cause and a sufficient nexus to search the apartment at 302 Broadway, second floor east, for cocaine and related evidence of the cocaine delivery service under investigation. See Commonwealth v. Anthony, 451 Mass. 59, 68-69 (2008) (search warrant affidavits are to be interpreted 'in a realistic and commonsense manner'); Commonwealth v. Banville, 457 Mass. 530, 538 (2010); Commonwealth v. Luthy, supra.
The motion judge correctly rejected the defendant's contention that Commonwealth v. Pina, 453 Mass. 438, 441-442 (2009), commands a different result. In Pina, the police only observed the defendant driving from his apartment to a location where he sold cocaine to an informant 'on one occasion,' and the affidavit was lacking in 'any other facts tending to demonstrate that the defendant sold drugs from his apartment or that he kept his supply of drugs there.' Id. at 442. Here, by contrast, the affidavit establishes that the defendant utilized a delivery service to sell cocaine 'away from his residence' and was 'afraid of drawing the attention of law enforcement to his residence' because he stored his supply and other evidence of his drug dealing at the residence.
2. The motion to suppress statements. For substantially the reasons in the Commonwealth's brief at pages thirty-one through thirty-four, the motion judge did not err in denying the defendant's motion to suppress statements. The judge specifically credited the testimony that the defendant was conversant in English, waived his Miranda rights intelligently and voluntarily, and spoke voluntarily, without being coerced. Conversely, the judge discredited the defendant's claim that the police burst in with a search warrant and threatened to call authorities to have the children taken into State custody if the defendant did not show the police where the drugs were located. Such credibility determinations are the province of the motion judge. See Commonwealth v. Moon, 380 Mass. 751, 756 (1980).
3. The responses to cross-examination. We reject the contention that Detective Cabral's responses during cross-examination require reversal because they amount to an impermissible opinion concerning the defendant's guilt. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000). The trial judge struck Cabral's statement that '[i]f you had a good case to defend, you wouldn't be sitting here trying to call me a liar,' and instructed the jury to disregard it. We presume the jury to have understood and followed the judge's instructions. See Commonwealth v. Tu Trinh, 458 Mass. 776, 789 (2011). Although the judge's ruling did not extend to the earlier statement, 'I got a strong case,' we discern no substantial risk of a miscarriage of justice arising from that remark. Even assuming that defense counsel did not invite the response by the tenor of his questioning, Cabral's response arose during an acrimonious exchange with defense counsel that the jury possessed sufficient sophistication to discount. Indeed, defense counsel made much of Cabral having 'lost his cool' in closing argument. In any event, given defense counsel's repeated and vigorous questioning regarding the investigative deficiencies of the police, we do not view the error as having made any difference. See ibid.
No substantial risk of a miscarriage of justice arose from Cabral's answering why his usual practice was not to obtain a signed Miranda waiver because the response was not an insinuation that the defendant was dangerous or of bad character.
Judgments affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),