Opinion
18-P-333
04-08-2019
COMMONWEALTH v. DIMITRI M. DUVINARD.
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, Dimitri M. Duvinard, appeals from his convictions, by a District Court jury, of possession with intent to distribute marijuana and a park zone violation. See G. L. c. 94C, §§ 32C (a) & 32J. On appeal, the defendant maintains that the warrant to search his residence was unsupported by probable cause, and that he did not commit the predicate offense with the mental state required by G. L. c. 94C, § 32J. We affirm.
Discussion. 1. Motion to suppress. The defendant claims that the application for a warrant to search the residence at 15 Fuller Street in Everett did not contain sufficient information to establish the reliability of two police informants, referenced as Source 1 and Source 2, a defect he claims was not cured by subsequent police surveillance.
"Under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], a search warrant may issue only on a showing of probable cause." Commonwealth v. Alexis, 481 Mass. 91, 101 (2018). "Probable cause means a 'substantial basis' 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.'" Id. at 102, quoting Commonwealth v. Holley, 478 Mass. 508, 521 (2017).
"When considering the sufficiency of a search warrant application, our review 'begins and ends with the four corners of the affidavit.'" Commonwealth v. Robertson, 480 Mass. 383, 386 (2018), quoting Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). See Commonwealth v. Santos, 94 Mass. App. Ct. 696, 699 (2019). "In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion." Robertson, supra, quoting Cavitt, supra. "We evaluate whether the affidavit underlying the warrant application satisfies the probable cause standard required by art. 14 de novo." Robertson, supra. See Commonwealth v. Foster, 471 Mass. 236, 241-242 (2015).
Where information from an unidentified informant is relied on to supply probable cause, the affidavit must explain "(1) some of the underlying circumstances from which the informant concluded that contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable (the veracity test)." Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 481 (2018), quoting Commonwealth v. Warren, 418 Mass. 86, 88 (1994). See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).
Although neither informant was named in the affidavit, the identity of both was known to the affiant, "a factor that weighs in favor of reliability." Commonwealth v. Alfonso A., 438 Mass. 372, 376 (2003).
The defendant acknowledges that the basis of knowledge test was satisfied by the informants' statements that each had been present within the residence and that each was personally aware of illegal drug trade within the residence, and the statement by Source 2 that it had personally purchased marijuana inside the target residence on several occasions. The defendant contends, however, that the veracity prong was not satisfied because the affidavit makes no statement regarding Source 1's veracity, and supports Source 2's veracity with only a perfunctorily recited assertion that Source 2 had previously provided law enforcement with "accurate information" that resulted in "the arrest of person(s) as well as the seizure of narcotics."
We agree with the defendant that statements made by Source 1, standing alone, fail to satisfy the veracity prong of the Aguilar-Spinelli test. See Monteiro, 93 Mass. App. Ct. at 481-482. With respect to Source 2, the veracity of a confidential source may be "established through previous instances where [the source's] information led to the confiscation of illegal narcotics." Commonwealth v. Mendes, 463 Mass. 353, 365 (2012). Although "[a] naked assertion that in the past the informant had provided information which led to a prior arrest is insufficient by itself to establish an informant's veracity," Commonwealth v. Rojas, 403 Mass. 483, 486 (1988), in this case the affidavit also stated that Source 2's prior tip "led not only to arrests, but also to seizure of [contraband]." Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991). "This distinction is critical." Id. See Santos, 94 Mass. App. Ct. at 700.
The information provided to the police by two confidential sources also set the stage for subsequent police surveillance that supplied the requisite corroboration supporting probable cause. Id. at 701. After Source 1 spoke with the affiant, Sergeant Bagley, in August, 2015, Bagley investigated the tip with members of the Everett Police Department's gang unit and narcotics unit. The narcotics unit then received information regarding the residence from the Malden Police Department about a shooting suspect believed to be staying there. Officers from Everett and Malden surveilled the residence on September 1, 2015, and saw activity consistent with street-level drug transactions, including a hand-to-hand transaction on the front porch of the residence. Two photographs were attached to the affidavit. Bagley then spoke with Source 2, who told Bagley that on several occasions it had purchased marijuana from the defendant inside the residence.
The defendant was not in either photograph.
Bagley and others conducted surveillance of the residence on September 8 and 14, 2015. On both dates they observed hand-to-hand exchanges with individuals other than the defendant, and activity consistent with street-level drug distribution. Bagley also conducted "two trash pulls" on September 2 and 10, 2015, which produced materials consistent with marijuana distribution and the packaging of one-half pound and one-pound bags of marijuana.
"In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion." Alexis, 481 Mass. at 102, quoting Robertson, 480 Mass. at 386. The information set forth in the affidavit detailing several weeks of observation of the residence was sufficient to allow the motion to suppress judge reasonably to infer that drugs or instrumentalities of the drug trade would be found within the residence. See Alexis, supra. Looking at the affidavit as a whole, police corroboration "provided sufficient reason to treat the informant's information as reliable." Alfonso A., 438 Mass. at 375. The motion to suppress was properly denied.
2. Park zone violation. The defendant contends, for the first time on appeal, that his conviction under G. L. c. 94C, § 32J, the park zone statute, should be vacated because he did not knowingly violate the statute. He focuses on the sentence of § 32J that provides that "[l]ack of knowledge of school boundaries shall not be a defense." The defendant claims that with the inclusion of this provision with respect to school boundaries, and not park boundaries, the Legislature intended that school zone violations, but not park zone violations, be treated as strict liability offenses. See Commonwealth v. Muckle, 478 Mass. 1001, 1003 (2017) ("the expression of one thing in a statute is an implied exclusion of other things not included in the statute" [quotation and citation omitted]). He maintains, therefore, that the trial judge erred when he instructed the jury that knowledge is not required to sustain a conviction under § 32J. Because the defendant did not object to the instruction at trial, we consider his claim to determine whether the error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Sherman, 481 Mass. 464, 475-476 (2019).
The defendant additionally contends that his conviction in 2017 of violating the park zone statute contravenes the Legislature's intent to mitigate the disparate impact of the statute on urban communities by amending the statute in 2018, because his conduct would not have constituted a violation of the amended statute. See St. 2018, c. 69, § 57. See also Commonwealth v. Bradley, 466 Mass. 551, 556-559 (2013). As the defendant acknowledges, however, his conviction in 2017 for a predicate offense committed in 2015 is governed by the 2012 amendment, St. 2012, c. 192, § 30, and is unaffected by the subsequent amendment to the statute. He has not demonstrated "extraordinary circumstances shown in some cases which would make it unfair to find guilt under § 32J." Commonwealth v. Alvarez, 413 Mass. 224, 230 n.5 (1992).
Pending before the Supreme Judicial Court is a case which will decide whether knowledge is an element of a § 32J park zone violation. See Commonwealth v. Matta, S.J.C. No. 12693. We need not reach this issue here, however, because even if we were to assume that the instruction was erroneous, and that the Commonwealth was required to prove that the defendant had knowledge of the nearby park, we are confident that the instruction "did not materially influence[] the guilty verdict." Sherman, 481 Mass. at 476. In making this assessment "'[w]e consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision.' [Commonwealth v. Azar, 435 Mass. 675, 687 (2002)]. We recognize that we must closely scrutinize this risk where, as here, [the contention is that] 'the elements of a crime are erroneously stated in the jury charge.' See id." Id.
Looking at the knowledge issue in context, the jury must have found that the defendant committed the predicate offense in his residence, because that was the only evidence of his guilt before them. The jury saw an aerial photograph depicting the defendant's residence in relation to the park, heard testimony that the park was only fifty-three feet from the front stairs of the house, and were told that the defendant had lived there for six months. The predicate offense occurred across the street from a fenced-in "tot lot" used by younger children to play on swing sets and slides. Given the house's proximity to the park, and the length of time the defendant had lived there, there was no substantial risk that the defendant was unaware of the park boundary or that the jury would have reached a different conclusion had they been instructed that the defendant had to have knowledge of the park boundary.
Judgments affirmed.
By the Court (Hanlon, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 8, 2019.