53 Mass. App. Ct. 591 | Mass. App. Ct. | 2002
On November 1, 1996, Lawrence police officers executed a search warrant for the third-floor apartment at 115 Myrtle Street in Lawrence. The warrant was supported by an affidavit, which -was based on information provided by an informant identified as Cl 19 and contained details of a controlled buy.
The police found, under the “kick plate” of the bathroom sink, a plastic bag containing 28.66 grams of forty-four per cent pure crack cocaine. On a bathroom shelf, police also found a pill bottle with the name “Manuel Feliz” on the label. The bottle contained 7.18 grams of crack cocaine. In the master bedroom, police officers seized two beepers and various identifying documents containing the names “Manuel Alcantara,” “Alcantara,” or “Manuel Feliz Alcantara” from the dresser and dresser drawers. In addition, they found $898 hidden in the master bedroom curtain.
A grand jury indicted the defendant, Manuel F. Alcantara, for trafficking in cocaine. G. L. c. 94C, § 32E. Prior to trial, the defendant filed an unsuccessful motion to suppress evidence seized in the search. The defendant also moved for and received a Franks-type hearing. Franks v. Delaware, 438 U.S. 154, 155-156 (1978). After a one-day trial, a jury convicted the defendant of the lesser included offense of possession with intent to distribute.
On appeal, the defendant claims that the motion to suppress evidence should have been allowed because the affidavit failed to establish a sufficient nexus between the cocaine and the defendant’s apartment; that the judge who conducted the Franks hearing should have ordered the informant produced or the identity of the informant disclosed; that the motion for a required finding of not guilty should have been allowed; and that the prosecution impaired the defendant’s constitutional rights during cross-examination and in closing argument. We affirm.
1. The motion to suppress. The affidavit contained, in relevant part, the following information. Detective Michael Laird stated
Laird conducted a controlled buy with Cl 19. Laird dialed a telephone number provided by Cl 19 and handed the telephone to Cl 19. Cl 19 arranged to meet Moreno at a certain location to purchase drugs. After searching Cl 19 to insure that he had no drugs in his possession, Laird gave him money for the purchase and left him at the specified location. Laird then parked his unmarked car so that he could watch Cl 19 and 115 Myrtle Street.
Laird saw a Hispanic male come out of the yard at 115 Myrtle Street and walk toward Cl 19. Cl 19 and the male then walked back to 115 Myrtle Street. Laird picked up Cl 19 and Cl 19 handed him a plastic bag containing cocaine and told him that Moreno had delivered the drugs.
a. Probable cause that cocaine would be found in the third-floor apartment at 115 Myrtle Street. The defendant argues that the affidavit in support of the application for the search warrant did not establish a sufficient nexus between the cocaine purchased by Cl 19 and the apartment because there was nothing in the affidavit to indicate that Cl 19 had been inside of the defendant’s apartment. We conclude that the affidavit established a sufficient nexus between the drugs and the apartment.
It is unclear from the affidavit whether Cl 19 actually entered the defendant’s apartment or whether Cl 19 even entered the common area of the building at 115 Myrtle Street. The inability of the police to observe an informant enter a specific apartment
b. The defendant’s challenge to the existence of Cl 19. In Franks v. Delaware, supra at 155-156, the United States Supreme Court established a two-pronged test to determine whether a defendant is entitled to an evidentiary hearing for purposes of challenging the veracity of the factual statements made by the affiant. First, the defendant must make a substantial preliminary showing that the affidavit contains a deliberate falsehood or statements which constitute a reckless disregard of the truth. Ibid. If the first requirement is met, then the judge considers the second prong: whether the challenged material is necessary to a finding of probable cause. Ibid.
Upon meeting both requirements, the defendant is entitled to an evidentiary hearing/ Ibid. See Smith, Criminal Practice and Procedure §§ 187-188 (Supp. 2001). The judge has discretion to order a hearing even if the defendant has not made a substantial preliminary showing. Commonwealth v. Signorine, 404 Mass. 400, 406 (1989).
Balancing a recognition of the difficulty a defendant may have in mounting a Franks challenge where the informant is not identified in the affidavit with the competing governmental interest in keeping the identity of the informant confidential, the Supreme Judicial Court established an in camera procedure by which a judge can inquire of an affiant, and, if necessary, an informant, in order to determine whether the defendant has a right to a Franks hearing. Commonwealth v. Amral, 407 Mass.
In the paragraph of the affidavit concerned with Cl 19’s reliability, Laird represented that Cl 19 had provided information in the past which had led to search warrants (warrants numbered 216, 122, 115, and 101). The affidavits in support of these other warrants, with the exception of warrant 216, did not refer to Cl 19. Based on this apparent inconsistency, the defendant moved for a Franks hearing, alleging that Cl 19 was actually a combination of Cl 9 and Cl 10, two informants appearing in the other affidavits. The Commonwealth agreed that a hearing was appropriate and the judge conducted a hearing. At the hearing, Laird testified and was subject to cross-examination but did not disclose the identity of Cl 19.
Laird explained that although Cl 19 had provided information that had been used in the affidavits in support of warrants 122, 115, and 101, Cl 19 either had not been mentioned at all (warrant 101) or had been referred to only as “citizen” (warrants 115 and 122) because Cl 19’s reliability had not been established at the time the affidavits were prepared. In each of these affidavits, a second informant had supplied the same information and it was this second informant the police relied on in the affidavits.
The judge, finding Laird credible and the omission of Cl 19 from the earlier affidavits acceptable under Commonwealth v. Padilla, 42 Mass. App. Ct. at 73, concluded that the affidavit in support of the application for the warrant “did not contain misrepresentations sufficient to ‘cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant.’ ” Id. at 72, quoting from Commonwealth v. Amral, supra at 522. On appeal, the defendant argues that the failure of the judge to conduct an in camera Amral hearing in which Laird was required to disclose the identity of Cl 19 or produce Cl 19, constituted an abuse of discretion. We disagree.
The judge’s determination that Laird’s explanation resolved any confusion created by the failure to include Cl 19-in the earlier affidavits was not an abuse of discretion. Compare McCray v. Illinois, 386 U.S. 300, 313 (1967) (judge properly exercised discretion to respect informant’s privilege where officers testified in open court and were subject to cross-examination); Commonwealth v. Amral, supra at 521.
2. Sufficiency of the evidence. The evidence was sufficient, when viewed in the light most favorable to the Commonwealth, for a rational jury to conclude beyond a reasonable doubt that the defendant possessed the cocaine found in the bathroom under the sink. The Commonwealth proceeded under the theory that the defendant constructively possessed the plastic bag of crack cocaine the police found under the bathroom sink’s kick plate.
To prove constructive possession of the crack cocaine, the Commonwealth must establish the defendant knew of the location of the drugs and had the ability and intent to exercise dominion or control over the drugs, Commonwealth v. Carmenatty, 37 Mass. App. Ct. 908, 909 (1994), and such proof may be made by circumstantial evidence. Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225 (1993).
Moreover, both the cocaine in the pill bottle and the cocaine under the sink were characterized as “crack” cocaine. A defendant who admits
3. Claims of burden shifting. The defendant testified that he lived at 115 Myrtle Street with his wife, two children, and a tenant named Jose Medina. The defendant claimed that he had met Medina approximately two to three months before his arrest and had rented a room to him. According to the defendant, he last saw Medina around the time of his arrest. The defendant also testified that, although the money in the bedroom was his, the cocaine in the bathroom (and even the cocaine in the pill bottle bearing his name) did not belong to him. The defendant said that he kept empty prescription pill bottles in the bathroom and that he had been bringing them to court.
During cross-examination, the prosecutor asked the defendant whether he had looked for Medina after his arrest and whether he had brought any empty pill bottles with him to court that day. Defense counsel objected to both lines of inquiry, claiming that the questioning shifted the burden of proof, but the judge overruled the objections as a permissible test of the defendant’s
For the same reason, there was no error in the prosecutor’s closing argument. The prosecutor first argued the strength of the Commonwealth’s evidence and then argued that the defendant’s testimony about Medina was unreasonable and not credible. In this circumstance, the challenged remarks were directed more at the general weakness of the defendant’s defense rather than toward his failure to produce evidence. Compare Commonwealth v. Feroli, 407 Mass. 405, 409 (1990) (“[Ujnless a prosecutor’s comments are of such a nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify [or to produce evidence], they are not prejudicially unfair” [citations omitted]).
To the extent that the jury could have misinterpreted the cross-examination or the closing argument, and we do not think that it did, the judge’s instructions regarding the presumption of innocence and the burden of proof would have cleared up any confusion. See Commonwealth v. Bregoli, 431 Mass. 265, 278 (2000).
Judgment affirmed.
CI 19 described what Moreno had been wearing; the description matched the clothing Laird had observed on the Hispanic male.
We note that the reliability of the informant was not challenged. We express no opinion regarding how such a practice might affect the determination of the informant’s reliability. In any event, where there was a controlled buy, such a challenge would likely have been futile.
In arguing his motion for a required finding of not guilty, the defendant did not challenge the sufficiency of the evidence to establish his possession of the crack cocaine found in the prescription bottle, even though he had testified that he did not possess the cocaine found in the bottle.