Opinion
No. 10–P–1316.
2012-06-20
COMMONWEALTH v. Ruben MARTORI.
By the Court (CYPHER, SMITH & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal is from the defendant's December, 2009, convictions by a Superior Court jury of trafficking in cocaine in an amount weighing fourteen or more grams, but less than twenty-eight grams, G .L. c. 94C, § 32E( b ); and violation of the school zone statute, G .L. c. 94C, § 32J. We affirm.
Springfield police obtained a search warrant based on an investigation of Christopher Brown, and in the course of executing it at his residence on October 23, 2008, encountered the defendant and arrested him. Prior to trial, the defendant filed a motion to disclose the confidential informant used in the application for the search warrant, and a motion to suppress evidence obtained in the search conducted pursuant to the warrant.
We consider the arguments advanced by the defendant challenging the disposition of these motions, and his request for a reversal of his convictions as follows.
Appellate proceedings were stayed to allow the defendant to submit, and a judge to rule on, a motion for new trial, which was denied. There is no appeal before us on the order denying the motion.
Analysis. 1. The search. The search leading to the defendant's arrest began, as we learn from the motion judge's findings, when police arrived at Brown's residence. When “[Officer] Bigda exited his vehicle, he saw Brown standing in the doorway of the home. Brown looked at Bigda, and then turned and ran inside. The police gave chase, kicked in the door, and entered the building without knocking, identifying themselves, or announcing their purpose.” After entering the apartment, police observed the defendant throwing a bag of cocaine into the bathroom and arrested him along with Brown and two others.
The defendant complains that because the police never announced their purpose, called Brown's name, or stated that they had a search warrant, they violated the common-law “knock and announce” rule. While the search warrant had authorized the police to “enter the premises without announcement” before it subsequently was struck by the motion judge,
the judge properly ruled that the police made a threshold reappraisal at the scene and the “circumstance of Brown's recognition of the police and simultaneous flight back into the premises justified dispensing with the knock and announce requirement,” and concluded that compliance with the rule would have been a “useless gesture.” The Supreme Judicial Court has “recognized certain exceptions that may excuse noncompliance with the rule, such as ... ‘where the person inside the dwelling to be entered has knowledge of the officers' purpose and presence,’ “ and where “facts known to the police at the time of entry make it ‘virtually certain’ that the person in the dwelling already knows the police's purpose” (citations omitted). Commonwealth v. Antwine, 417 Mass. 637, 639 (1994). The motion judge did not err in denying the defendant's motion to suppress.
The motion judge found that the affiant stated falsely that Brown, the target of the investigation, had “convictions for firearm offenses,” and accordingly the affiant had not set forth sufficient particularized facts to justify dispensing with the no-knock requirement. For this reason, we need not address the defendant's argument that the police had insufficient probable cause to dispense with the “knock and announce” requirement.
2. The confidential informant. The defendant asserts that it was error for the trial judge to deny his motion to disclose the identity of the confidential informant.
The defendant claims that the informant could have presented exculpatory evidence that he never made a controlled purchase from the defendant, or that the defendant did not participate in a controlled purchase. On this record, however, the informant's only role was in making an undercover buy from Brown within twenty-four hours before the issuance of the search warrant. The informant could not have been a material witness to the events following the search of Brown's apartment or the crimes charged to the defendant based on the observations of the police during the search. Compare Commonwealth v. Figueroa, 74 Mass. App Ct. 784, 790–791 (2009); Commonwealth v. Velez, 77 Mass.App.Ct. 270, 276 (2010). In any event, the defendant was charged as a joint venturer with Brown and two others, but was charged only regarding the cocaine in his possession at the time of the search.
After the defendant's pretrial motion was denied, his renewed motion also was denied, as was a G.L. c. 211, § 3, petition to this court.
The trial judge considered the relevance of disclosure to the defense, and, although denying disclosure, he allowed the defendant to question the police on the issue. Neither the trial judge nor the other judges who earlier had considered this issue abused their discretion in denying the defendant's motion for disclosure.
3. Motion for required finding of not guilty. The defendant asserts that there was insufficient evidence that he trafficked in cocaine. The trial judge allowed so much of the defendant's motion as to reduce the trafficking charge from twenty-eight or more but less than one hundred grams, to conform to the 26.9 grams the police actually found he possessed.
We view the evidence according to Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). The defendant was charged under a joint venture theory after he was observed discarding a package of cocaine when the police entered the apparently unoccupied apartment which contained large quantities of heroin and cocaine, and accoutrements of drug distribution. Absent was any evidence of personal use in the apartment. The trial judge did not err in denying the defendant's motion for a required finding.
Judgments affirmed.