Opinion
14-P-1655
03-21-2016
COMMONWEALTH v. MARK MELLO.
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
After a jury trial, the defendant was convicted of trafficking of cocaine, possession with intent to distribute marijuana, and possession of a class B substance. On appeal, he claims the motion judge erred by denying his motion to suppress evidence, and the trial judge erred by admitting provocative photographs found in the defendant's safe. We affirm.
The defendant also was found guilty of a second or subsequent offense on the marijuana conviction.
1. Motion to suppress. The defendant claims that the motion judge improperly admitted evidence of contraband seized from the defendant's home because the search warrant was invalid. More specifically, he argues that the affidavit in support of the application for the search warrant failed to establish the confidential informant's basis of knowledge and veracity, as required by Aguilar-Spinelli. We disagree. The informant here satisfied the basis of knowledge requirement by providing detailed information based on firsthand knowledge. See Commonwealth v. Barbosa, 463 Mass. 116, 134 (2012). He knew where the defendant lived, was able to identify him and his associates, and had been in his apartment on "numerous occasions." Moreover, two controlled buys, one of which occurred fewer than two days before the date of the affidavit, further demonstrated his firsthand basis of knowledge. See Commonwealth v. Rice, 47 Mass. App. Ct. 586, 589 (1999) (second controlled buy "'updat[ed]' the freshness of the earlier tips"). As such, the confidential informant demonstrated sufficient firsthand knowledge to satisfy the basis of knowledge requirement. See Commonwealth v. Desper, 419 Mass. 163, 164 (1994).
See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
The defendant also argues that the informant did not satisfy the veracity requirement because the affidavit failed to specify where the defendant stored the drugs or where the transactions took place. However, veracity may be satisfied through police corroboration. See Commonwealth v. Cast, 407 Mass. 891, 896 (1990) ("[C]orroboration . . . can compensate for deficiencies in either or both prongs"). Here, officers corroborated the informant's details about the defendant's residence, observed a transaction take place there, and confirmed that the defendant was a convicted drug dealer, thus lending credibility to the informant's statements. See Commonwealth v. Hall, 366 Mass. 790, 798 (1975) (observation of suspects entering and leaving premises supports informant's credibility); Commonwealth v. Allen, 406 Mass. 575, 579 (1990) (defendant's recent and similar criminal history corroborates informant's veracity). Additionally, the informant's participation in past controlled purchases further bolstered his credibility. See Commonwealth v. Alfonso A., 438 Mass. 372, 375 n.3 (2003).
That the informant carried out the controlled buys without a warrant does not negate the veracity of the evidence. A drug dealer does not have a reasonable expectation of privacy in the area where he conducts a drug transaction, even when the buyer is an undercover officer. Commonwealth v. Yehudi Y., 56 Mass. App. Ct. 812, 815 (2002). Because the defendant invited the informant inside to purchase drugs, his claim that the controlled buys were "warrantless illegal searches" is without merit. Therefore, the motion judge properly denied the motion to suppress.
2. Evidence of photographs. The defendant also claims that the trial judge abused her discretion by allowing in evidence "provocative and pornographic" photographs of his girl friend that police found in his safe. While the photographs were admitted on the theory that they suggested the safe was private and used only by the defendant, the defendant asserts that they were minimally relevant and highly prejudicial. We disagree.
"Evidence is relevant if it has a 'rational tendency to prove an issue in the case' or render a 'desired inference more probable.'" Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 764 (2007) (citations omitted) (analyzing admissibility of certain photographs). Here, the photographs tended to show constructive possession over the seized drugs because they suggest the defendant had sole knowledge of and control over the contents of the safe. See Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 784-785 (2009). Because the defendant claims that the drugs did not belong to him, the photographs are significantly probative. See Wallace, supra at 765-766.
Furthermore, the claim that the photographs were highly prejudicial is unconvincing. Whether the probative value of evidence "is substantially outweighed by its prejudicial effect [is] entrusted to the trial judge's broad discretion and [will] not [be] disturbed absent palpable error." Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010) (citation omitted). Here, the jury heard testimony about all of the photographs, but the Commonwealth only admitted seven of them in evidence. Of the photographs admitted, only four featured the defendant's girl friend and the photographs submitted were neither provocative nor pornographic. Moreover, the photographs did not unfairly prejudice the defendant, as they depicted only his girl friend, not the defendant himself. Contrast Commonwealth v. Prashaw, 57 Mass. App. Ct. 19, 22-24 (2003). The judge was therefore well within her discretion in admitting the photographs.
The four photographs of the girl friend admitted in evidence showed her wearing a dress, a bikini, and a long sleeved shirt.
With the photographs and related testimony properly admitted, there was no error in the prosecutor discussing that evidence in closing argument. See Commonwealth v. Roy, 464 Mass. 818, 829 (2013).
Judgments affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 21, 2016.