Opinion
15-P-491
03-07-2016
COMMONWEALTH v. NICHOLAS C. SCAFIDI.
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 100 or more grams of cocaine in violation of G. L. c. 94C, § 32E(b). On appeal, he claims the judge erred in admitting in evidence the defendant's incriminating statements and the evidence of his failure to contact police, and that trial counsel provided ineffective assistance. We affirm.
1. Incriminating statements. The defendant claims that the judge improperly admitted in evidence the incriminating statements he made during a telephone conversation with a State trooper. Specifically, he claims that his identity was not authenticated, and even if it was, the trooper failed to provide him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). We disagree.
While executing a search warrant on the defendant's home, State troopers apprehended one of the defendant's associates, who allowed a trooper to contact the defendant using his cellular telephone (cell phone). The trooper believed the individual on the cell phone, who identified himself by first name, was the defendant. The trooper explained to the individual that he had a warrant to search for narcotics and would not "leave any stones unturned." In response, the speaker offered specific instructions to the trooper as to how to locate a stash of cocaine secreted in a closet wall.
"A telephone conversation between a witness and a person the witness had never met may be admitted when confirming circumstances tend to authenticate the identity of the other person." Commonwealth v. Wojcik, 43 Mass. App. Ct. 595, 606-607 (1997) (quotation omitted). In this case, the speaker identified himself by his first name and provided the officers with detailed instructions on how to find drugs hidden in the house. While self-identification alone is insufficient to authenticate identity, Commonwealth v. Howard, 42 Mass. App. Ct. 322, 324 (1997), the speaker's detailed instructions to the trooper are particularly probative. See Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) ("Statements made by the man who answered the telephone tended themselves to confirm his identity as the defendant"). Additionally, during the course of their search, the troopers found documents containing the defendant's name and address. In consideration of all the evidence, a reasonable jury could therefore find the self-identification authentic.
Relative to the defendant's argument regarding the absence of Miranda warnings, the objective circumstances of the cell phone call do not amount to "custody." In determining whether an individual is in custody, relevant factors include: the place of the interrogation, whether the investigation began to focus on the suspect, whether the interrogation was aggressive or informal, and whether the suspect was free to end the interview by leaving or asking to leave. Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). Here, the conversation was neither formal nor aggressive, as it took place over the cell phone, while the suspect was miles away. Furthermore, the defendant would have been free to end the conversation at any time by simply ending the call. Although a search warrant had been issued and the investigation began to focus on the defendant, neither fact necessarily suggests the defendant was in custody. See ibid. ("Rarely is any single factor conclusive"). Even where a complaint and arrest warrant have been issued, Miranda warnings are not required when statements are made over the telephone. See Commonwealth v. Smallwood, 379 Mass. 878, 883-884 (1980). As the defendant was not in custody, the trooper did not violate the defendant's Fifth Amendment rights in not advising the defendant of his Miranda rights.
The defendant claimed to be on Cape Cod at the time of the conversation, approximately 100 miles away from the location of the troopers in his Fitchburg home.
2. Motion to suppress. The defendant also claims that trial counsel was ineffective by failing to file a motion to suppress evidence of the cell phone conversation. We disagree. When determining whether counsel's failure to file a particular motion meets the ineffective assistance standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we require a "determination of whether a motion . . . would have been allowed." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 173-174 (2001). As discussed above, the judge properly admitted the incriminating statements. For this reason alone, it is unlikely that a motion to suppress would have succeeded. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). Moreover, the judge denied counsel's motion in limine to exclude the evidence relating to the cell phone call. We are not persuaded that the same argument, raised in a motion to suppress, would have led to a different result.
3. Failure to contact police. Finally, the defendant claims that the judge improperly allowed testimony on the defendant's failure to contact the police as requested. We disagree. Once admitted, the Commonwealth made no reference to the defendant not contacting the police until defense counsel brought attention to it in his closing statement. This undermines any argument that the evidence was used to imply guilt, which belies the defendant's assertion that his right to remain silent was violated. While an inference of guilt from the failure to comply would be improper, Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 648-654 (2008), we are satisfied knowing the evidence was used only for the limited purpose of providing background information.
The evidence was admitted through the trooper's testimony to provide background information on the police investigation. See Commonwealth v. LaVelle, 33 Mass. App. Ct. 36, 42-43 (1992), S.C., 414 Mass. 146 (1993).
Even if the judge had admitted the testimony in error, no substantial risk of a miscarriage of justice occurred. Given the weight of evidence against the defendant, the Commonwealth's limited use of the contested evidence was of limited import. See Commonwealth v. Alphas, 430 Mass. 8, 15, 20 (1999).
Judgment affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 7, 2016.