Opinion
No. 11–P–1402.
2012-08-28
COMMONWEALTH v. Mark WEBB.
By the Court (COHEN MILLS & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by jury of drug trafficking and firearm and ammunition offenses. On appeal, he alleges error in five respects: (1) the judge's instructions as to narcotics trafficking, the judge's response to jury questions about specific intent in the context of the narcotics charge, and the judge's refusal to give an instruction on joint and several liability; (2) the judge's failure to give a Bowden instruction; (3) the denial of his motion to suppress; (4) alleged inconsistencies between judicial findings on his motion to suppress and on his motion for a Franks hearing; and (5) the judge's refusal to issue a capias to compel an informant to appear for a Franks hearing. We affirm.
See Commonwealth v. Bowden, 379 Mass. 472, 485–486 (1980).
See Franks v. Delaware, 438 U.S. 154, 171–172 (1978).
Discussion. 1. The denial of the motion to suppress. The defendant challenges the denial of his motion to suppress the evidence seized from his apartment, arguing that the affidavit supporting the search warrant application did not supply probable cause. We review findings of fact for clear error but independently determine the correctness of the judge's application of constitutional principles to facts as found. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Our inquiry as to the sufficiency of the search warrant application always “begins and ends with the ‘four corners of the affidavit.’ “ Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011), quoting from Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). Having reviewed the affidavit “as a whole,” Commonwealth v. Beliard, 443 Mass. 79, 85 (2004), we are convinced that it was sufficient to supply probable cause to search the defendant's apartment. See Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), and cases cited. An affidavit based on information supplied by an informant must establish the informant's veracity and basis of knowledge. See Commonwealth v. Upton, 394 Mass. 363, 374 (1985), citing Aguilar v. Texas, 378 U.S. 108, 114 (1964), and Spinelli v. United States, 393 U.S. 410, 415 (1969). Named informants are presumed to be reliable and their information credible. Commonwealth v. Alvarez, 422 Mass. 198, 204 (1996). The standard of credibility for named informants is the same whether they are victims, eyewitnesses (“good Samaritans”), or participants in the crime. See Commonwealth v. Atchue, 393 Mass. 343, 348 n. 4 (1984) (declining to adopt separate standard for different kinds of named informants). The informant here was named, and the affiant had an opportunity to question him. See id. at 347. The affidavit also included the informant's statements that he had purchased heroin in the defendant's apartment on multiple occasions. See Commonwealth v. Parapar, 404 Mass. 319, 322 (1989) (declaration against penal interest is factor to consider in determining probable cause); Alvarez, supra (statement against penal interest made by identified informant during police questioning after he had been arrested for cocaine trafficking, that he had been dealing drugs, satisfied the veracity prong). The veracity prong was satisfied.
The basis of knowledge prong also was satisfied because the informant had firsthand knowledge and this fact was detailed with sufficient specificity by the affiant. See Commonwealth v. Allen, 406 Mass. 575, 578 (1990). Here, the affidavit states that the informant told the police he had been in the apartment of the defendant and his brother and had purchased drugs from them there on multiple occasions. See, e.g., Commonwealth v. Perez–Baez, 410 Mass. 43, 45 (1991) (informant present at single sale); Commonwealth v. Mejia, 411 Mass. 108, 110 (1991) (informant observed drug sales on five occasions). The informant provided details consistent with personal knowledge, such as the manner of packaging of cocaine as square blocks, which he believed were called “62's,” as well as the type and caliber of the defendant's firearm and the circumstances under which he saw it. This shows sufficient basis of knowledge. See Atchue, supra at 348 & n. 4; Commonwealth v. Alfonso A., 438 Mass. 372, 374 (2003).
2. Jury instructions. A. Narcotics trafficking instructions. The jury were correctly instructed that in order to find the defendant guilty of trafficking, it was necessary to find beyond a reasonable doubt that he knowingly or intentionally possessed the drugs with the specific intent to distribute them. The judge was not required to charge in the exact words recommended by the defendant. There was no error.
B. Answers to jury questions. The jury interrupted its deliberations to ask two questions: (1) “If the defendant had knowledge that drug distribution was being conducted in his apartment, is that specific intent?” and (2) “If [the] defendant is giving consent for drug distribution to occur in his apartment, is that specific intent?”
The judge did not give a specific “yes” or “no” answer, but instead explained again that neither mere knowledge of the existence of drugs nor mere presence in the area where drugs are located permits an inference of the specific intent to distribute. She added that the jury could consider a number of factors in determining whether the Commonwealth had proved the specific intent required for trafficking including possession of a large quantity of drugs inconsistent with possession for personal use, possession of materials used to weigh, cut, or package drugs, along with all the other credible evidence in the case in determining proof of a specific intent to distribute. There was no objection.
We review the trial judge's answers to jury questions for abuse of discretion. See Commonwealth v. Robinson, 449 Mass. 1, 7–8 (2007). We review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Wood, 380 Mass. 545, 547 & n. 2 (1980), citing Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Even though the judge did not specifically state that consent alone was not sufficient to prove the specific intent, her instruction that specific intent could not be based solely on the defendant's knowledge that drugs were present in his apartment was sufficient to avoid any danger that the jury would base proof of specific intent on the defendant's consent to allow his brother to use his (the defendant's) apartment for the distribution of drugs. In any case, the defendant's presence in a small one-bedroom apartment in which ten corner-cut baggies of crack cocaine inside a sandwich bag, and more than $1,000 in cash, were in open and plain view on the nightstand in his bedroom next to his wallet, along with the key to a safe containing more than one hundred grams of cocaine and a firearm, is more than sufficient to demonstrate that any error in omitting a specific instruction relating to consent did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Palmer, 59 Mass.App.Ct. 415, 425–426 (2003) (analyzing record to determine whether omission of jury instruction created substantial risk of miscarriage of justice).
C. Denial to instruct on joint and several liability. The defendant's argument that the jury inappropriately considered the joint and several liability theory when they asked about knowledge and consent is based on speculation. The judge did not abuse her discretion by declining to instruct the jury that they should not consider joint and several liability where this theory was not raised during trial.
D. The Bowden instruction. There was no error in the judge's decision not to instruct the jury in accordance with Commonwealth v. Bowden, 379 Mass. 472, 486 (1980), for the reasons stated in the Commonwealth's brief at pages eighteen through nineteen.
3. Inconsistency of findings of veracity. The judge's findings as to credibility at a hearing on a motion to suppress and at the Franks hearing were not inconsistent. A judge can find someone credible on one occasion but not the other. The finding that the informant's account supporting the search warrant application was credible but his later recantation was not, was reasonable where the unsworn statement was made during an unsolicited confrontation with the defendant's investigator.
4. Denial of capias. The issue at the Franks hearing was the date on which the informant purchased drugs from the defendant at the latter's apartment. The defense investigator's affidavit stated that the informant recanted and denied ever being in the apartment; other alibi evidence suggested that the informant had been at a family gathering throughout the day. The judge refused to bring the informant in. She stated, “[A]ny denial by the informant ... would be entitled to little or no weight.” The denial was not an abuse of discretion.
First, the only issue at a Franks hearing is the veracity of the affiant, not the informant. See Franks v. Delaware, 438 U.S. 154, 171 (1978); Commonwealth v. Amral, 407 Mass. 511, 520 n. 8 (1990). Even if the informant had lied to the police about the date, that would have been irrelevant. There was no evidence that the informant claimed that he had not told the police what they alleged he had stated. The affidavit by the defense investigator relayed that the informant “does not understand why the police are stating that he was inside of [the] apartments.” This statement is ambiguous and nonassertive. Considering the circumstances under which it was given, one could reasonably interpret it as a mere evasion of the topic. The judge heard and credited the affiant's testimony, and was satisfied that the misstatement of the date was not intentional. This finding was not clearly erroneous: the officer gave a coherent explanation for the mistake.
Second, the judge disbelieved not only the substance of the alleged recantation, but the very fact that it occurred: the informant walked away from the unsolicited conversation, ignored the subpoena, and supplied no affidavit. Compare Commonwealth v. Pignato, 31 Mass.App.Ct. 907, 908 (1991) (affidavit from informant refuting statements attributed to him relevant). The judge did not have to accept evidence at the Franks hearing that she did not find reliable. See Franks, supra (“Affidavits or sworn or otherwise reliable statements of witnesses should be furnished” [emphasis supplied] ).
Judgments affirmed.