Opinion
10-P-2138
03-06-2012
COMMONWEALTH v. DOMINIC v. CAPOZZI.
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
The defendant appeals from his conviction for trafficking in cocaine, in violation of G. L. c. 94C, § 32E(b). Specifically, the defendant avers (1) the trial judge deprived the defendant of his right to due process where the trial judge improperly restricted the scope of the defendant's cross-examination and presentation of evidence, (2) the prosecution improperly influenced the availability of a witness, and (3) the motion judge erroneously denied his motion to suppress the warrant search, as the accompanying affidavit supporting the application lacked sufficient probable cause. We affirm.
1. The trial judge did not improperly restrict the defendant's presentation of evidence. The defendant asserts that the trial judge erroneously prohibited testimony essential to the presented theory of defense, namely, inquiries into the alleged missteps made by Trooper Boyle in his criminal investigation and the observations made by the defendant's girlfriend of the lack of any drug-selling activity at 23 Nameloc Road in Plymouth. Objections to such inquiries were properly sustained, however, because the subject of the proposed line of questioning had been properly litigated at the motion to suppress previously held, and was not relevant to the factual matters to be resolved by the jury.
Extrinsic evidence on collateral matters is 'introduced at trial for the purposes of impeachment only in the discretion of the judge.' Commonwealth v. Linton, 456 Mass. 534, 555 (2010). It is not an abuse of discretion for the judge to exclude evidence where the defendant failed to 'make a plausible showing that circumstances existed on which the alleged bias could be based.' Commonwealth v. DiBenedetto, 427 Mass. 414, 421 (1998). 'The right [to cross-examine to show bias or prejudice] is not necessarily infringed by curbing inquiry if the matter sought to be elicited has been sufficiently aired.' Commonwealth v. LaVelle, 414 Mass. 146, 154 (1993).
In the instant case, the judge appropriately restricted the scope of the defendant's cross-examination of Trooper Boyle and similar inquiries during the defendant's case-in-chief. The evidence relating to the probable cause to search the defendant's home was not the factual matter at issue at the trial, and at best is a collateral issue. The defendant moreover failed to show any factual basis at trial to support his contention that Trooper Boyle fabricated the discovery of the evidence. In fact, Trooper Boyle was merely one of the fifteen police officers involved in the execution of the police warrant at 23 Nameloc Road and was not responsible for the seizure of the cocaine found in the basement and from a search of the defendant on the night in question, nor was he the trooper to whom the defendant made admissions. Moreover, Trooper Boyle was subject to extensive cross-examination regarding the destruction of his notes, surveillance of the target neighborhood, and application and execution of the relevant search warrant. As such, the defendant did not present additional circumstances on which bias could be based, beyond the basic tactical decisions of the investigation. To the extent the defendant attacks the sufficiency of probable cause to obtain a warrant, that matter had been sufficiently heard at the previous motion hearing.
Turning to the testimony of the defendant's girlfriend, Jennifer Senior, as to whether she had known the defendant to carry drugs on his person, the judge properly sustained the Commonwealth's objection to an irrelevant inquiry. Her observations of past activities involving drugs is wholly collateral and irrelevant, and an attempt to introduce character evidence of the defendant. The fact that the defendant had not previously been seen to have kept contraband on his person is immaterial to the prosecution of the defendant for the cocaine found during the search of his residence.
2. Alleged intimidation of witness Jeffrey O'Brien. With regard to the unavailability of potential witness Jeffrey O'Brien, the defendant avers such unavailability was the result of prosecutorial misconduct and witness intimidation, thereby contending that the defendant was deprived of his right to present a full defense. In short, he contends that the Commonwealth contacted a cooperating informant, who in turn placed a phone call to O'Brien, in an attempt to set up a controlled buy or other transaction of which the State Police would have full knowledge, the goal of which was to pressure O'Brien to invoke his Fifth Amendment right not to testify.
Here, it is undisputed that O'Brien had the right to properly assert his Fifth Amendment privilege. It is also undisputed that the Commonwealth and O'Brien did not have an agreement to otherwise eliminate the privilege, and thus, the Commonwealth maintained the right to indict O'Brien at any time throughout the trial. 'With respect to a witness's claim of privilege, we have long held that '[a] witness may refuse to testify unless it is perfectly clear from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.' ' Commonwealth v. Dagenais, 437 Mass. 832, 839 (2002), quoting from Commonwealth v. Funches, 379 Mass. 283, 289 (1979) (citation omitted). The Fifth Amendment privilege may be invoked in criminal cases when the individual asserting the privilege is called to give testimony that creates a possibility of criminal prosecution. See Commonwealth v. Dias, 451 Mass. 463, 473 (2008).
Most significantly, any testimony that the defendant sought to elicit from O'Brien was properly deemed irrelevant by the judge. In addition, the underlying importance of any evidence the defendant proposed to introduce through O'Brien was adequately conveyed by the testimony of Senior on the third day of trial, including the issue of outsider access to 23 Nameloc Road and a failure to observe any drugs or drug transactions taking place within the home. Moreover, the trial judge concluded, and we agree, that O'Brien's affidavit containing his past actions and observations concerning 23 Nameloc Road was not exculpatory but was inadmissible as improper character evidence. 3. The motion judge properly denied the motion to suppress. In reviewing the denial of a motion to suppress, the court must 'show substantial deference to the judge's legal conclusions,' and not disturb the findings of the motion judge absent clear error. Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 42-43 (2002). 'The 'judge's denial of the defendant's motion [to suppress] implies resolution of factual issues in favor of the Commonwealth." Commonwealth v. Hinds, 437 Mass. 54, 57 (2002), quoting from Commonwealth v. Grandison, 433 Mass. 135, 137 (2001).
The relevant facts are summarized below. The State Police, with the assistance of two confidential informants, conducted four controlled purchases of cocaine from the defendant through an intermediary (hereinafter 'unwitting person' or 'UW') between February 17 and March 16, 2008. One of the confidential informants, known as 'RCI1,' had previously cooperated with the State Police and conducted controlled cocaine purchases from an individual who was subsequently arrested and convicted of violations of the controlled substances act. Trooper Boyle, one of the State troopers extensively involved in the investigation, signed a sworn affidavit on March 20, 2008, and thereafter approximately fifteen State troopers executed the search warrant in a planned manner.
Specifically, during the series of controlled drug purchases, the State police met RCI1 prior to each exchange to confirm RCI1 did not possess any contraband or monies, supplied RCI1 with registered currency, and uninterruptedly observed RCI1 participate in an exchange of drugs with UW at a prearranged location. The troopers further maintained surveillance of UW traveling directly to 23 Nameloc Road, in two instances, immediately following the purchase, and in the other two instances, observed UW access 23 Nameloc Road in the midst of the transaction, but prior to exchanging the cocaine with RCI1.
The defendant contends the judge erred in denying his motion to suppress on the grounds that the accompanying affidavit lacked any indication that the informant had personal knowledge of drugs being located at this residence. In so arguing, the defendant posits that police observation of a controlled buy, conducted through an intermediary, fails to cure any deficiencies in the informant's own personal knowledge. We find this argument to be an erroneous interpretation of the case law governing the use of intermediaries in the context of controlled purchases and determine that the information set forth in the affidavit was sufficient to establish probable cause to search the defendant's residence.
In reviewing probable cause, 'we give great deference to the magistrate's determination of probable cause.' Commonwealth v. Ilges, 64 Mass. App. Ct. 503, 508 (2005) (citation omitted). It is well settled in Massachusetts that a warrant to search a residence must be supported by probable cause. Commonwealth v. Truax, 397 Mass. 174, 177 (1986); See Commonwealth v. Dillon, 79 Mass. App. Ct. 290, 294 (2011). '[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). Where the police target a residence as part of reported drug-selling activity, the affidavit must present a sufficient nexus between the drug-selling activity and the location of the search to establish probable cause to search. Dillon, supra.
When the affiant relies on information from confidential informants, Massachusetts applies the familiar Aguilar-Spinelli test, requiring the Commonwealth to demonstrate (1) the basis of the informant's knowledge, and (2) the veracity of the informant. Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). See Truax, supra at 177. The basis of knowledge prong of the test is generally satisfied where the informant is present at the sale of drugs. Commonwealth v. Perez-Baez, 410 Mass. 43, 45 (1991). In a case where the informant utilizes the assistance of an intermediary to execute the controlled drug purchase, police observation of the controlled purchased sufficiently corroborates the informant and creates a sound basis of knowledge. See Commonwealth v. Tshudy, 34 Mass. App. Ct. 955 (1993); Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995).
Here, the affidavit established the requisite probable cause to search the defendant's residence at 23 Nameloc Road. In his affidavit, Trooper Boyle set forth information from RCI1 that a white male known as 'Dominic' supplied cocaine in the Plymouth area, that he understood Dominic stored the cocaine for sale at this nearby home, and that RCI1 was able to purchase the cocaine supplied by Dominic through an intermediary. RCI1 then participated in four controlled purchases. Where the police subsequently maintained direct observation of RCI1 purchasing drugs from UW, RCI1 had a sufficient basis of knowledge. See generally Commonwealth v. Warren, 418 Mass. 86, 89 (1994) ('A controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant').
The remaining contents of the affidavit provide a further showing of probable cause to believe that the drugs were stored at the defendant's residence. The affidavit details the extensive nature of the police observation during the four controlled purchases with intermediary UW, and in each instance confirmed the direct access by UW to 23 Nameloc Road in some capacity. Significantly, on each occasion officers observed UW to leave the meeting with the informant after an initial receipt of funds from the informant, then go directly to the defendant's residence, where police observed, through a window, UW converse with the defendant on one occasion, and identified the presence of the defendant at the premises on another, and then UW returning to the informant to complete the drug sale by handing over the drugs. In all four transactions, the police confirmed the purchase of cocaine. Beyond the controlled purchases, the affidavit contained information that the defendant listed 23 Nameloc Road as his current address with local utilities and the United States Post Office, as well as with the Plymouth police department, as well as the presence in the driveway of a vehicle registered to the defendant on several occasions. Viewed as a whole, the information contained within the four corners of the affidavit provided sufficient probable cause to search the defendant's residence.
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),