39 Mass. App. Ct. 531 | Mass. App. Ct. | 1995
During the investigation of the murder of Carol DiMaiti Stuart in 1989, Boston police Detective Peter O’Malley applied for and obtained a warrant to search the premises of the defendant. A Brookline police officer, who was present during the execution of that warrant oh November 10, 1989, observed items that he believed were related to an armed robbery committed in Brookline on October 2, 1989. Relying in part upon his observations, the Brookline police officer obtained a subsequent warrant, pursuant to which the observed items were seized and either introduced in evidence or described during the trial of the defendant for the armed robbery. Following his conviction for that crime, the defendant moved for a new trial on the ground of ineffec
The defendant appeals from the denial of his second motion, arguing that he should have been granted a Franks hearing because evidence discovered after his trial establishes that O’Malley signed and swore to, but did not author, the 1989 affidavit.
When a convicted defendant, relying on allegedly newly discovered evidence, “attacks the veracity of . . . representations in the application for a warrant, the proper procedural route for his challenge is his motion for a Franks hearing.” Commonwealth v. Ramirez, 416 Mass. 41, 48 (1993). In Franks, the United States Supreme Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” 438 U.S. at 155-156. The Court instructed that “[t]o mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out spe
The burden is squarely on a defendant to establish his right to an evidentiary hearing. See Commonwealth v. Blake, 413 Mass. 823, 825-826 (1992); Smith, Criminal Practice & Procedure §§ 187, 188 (1983 & Supp. 1995). In light of our conclusion that the defendant has not met that burden, it is not necessary that we examine, as did the motion judge, the propriety of an affiant signing and swearing to an affidavit prepared by another.
We are mindful of the sensitivity with which the Franks standard should be applied to the circumstances of each case, see Commonwealth v. Ramos, 402 Mass. 209, 215 n.5 (1988), but even if we accord great weight to the contentions that Mundy’s authorship intentionally was concealed and that the affidavit contained grand jury information unknown to O’Malley, we discern nothing more than a conclusory attack inviting speculation about the veracity of the contents of the affidavit. The linchpin of a successful request for a Franks hearing is a specific allegation that some substantive portion of the affidavit is untrue or misleading. Nothing in
There is no indication in our record that the defendant, beyond alluding to the footnoted statement in Commonwealth v. Bennett, supra, made any attempt to place before the motion judge the information that was before the Supreme Judicial Court, which may have led it to indicate that there was “a reasonable basis for finding [at the time of its decision] that certain statements in the affidavit . . . were false and that [O’Malley] knew that those statements were false.” Id. at 273 n.3. Given the reservation in Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 768 (1981), of the question whether art. 14 of the Massachusetts Declaration of Rights requires suppression of all evidence obtained following deliberate, as distinguished from reckless, misrepresentation in an affidavit in support of the issuance of a search warrant, notwithstanding that the misrepresented information is not necessary to a finding of probable cause, it might have been incumbent on the motion judge to permit an evidentiary hearing upon a minimal show
The order denying the defendant’s motion for a new trial or for a Franks hearing is affirmed.
So ordered.
The defendant raises no separate argument pertaining to the denial of his motion for a new trial.
There is no indication in our record that this “admission” is attributable to O’Malley. The excerpts from the transcript of the disciplinary hearing in our record indicate that Captain Edward J. McNelly testified that police officers “are not empowered to sit in on an investigative grand jury. This comes strictly under the domain of the District Attorney who at the time was Assistant District Attorney Thomas Mundy. We were not even aware of what the testimony was within the grand jury.” The Commonwealth argues that the defendant has not demonstrated that the unspecified grand jury information was not known to the police prior to its being
The defendant’s brief does not specify how the fact of Mundy’s authorship was concealed. The Commonwealth in its brief assumes that the alleged concealment took the form of a reference in O’Malley’s April 2, 1992, affidavit to the November 10, 1989, document as being “my” affidavit.
In his decision the judge stated that “[i]t is routine practice” for assistant district attorneys to “prepare affidavits to which police officers swear” and that such practice “was readily discoverable prior to the first new trial motion.” Accordingly, he determined, relying on Mass.R.Crim.P. 30(c)(2), 378 Mass. 901 (1979), that the defendant had waived the issue of O’Malley’s not having authored the affidavit by failing to raise it in his first motion for a new trial. While there may be some support for the judge’s reliance on his considerable experience as a prosecutor in certain limited decisional circumstances, see Commonwealth v. McKay, 23 Mass. App. Ct. 966, 967 (1987), such an approach generally should be avoided, not only for the reason that the defendant should have a fair opportunity to confront evidence adverse to his interests, but also because prosecutorial practice may differ, as witnessed by O’Malley’s testimony at the disciplinary hearing that he had been involved with one hundred affidavits and search warrants and, other than in this case, had never signed an affidavit prepared by another.
The pertinent parts of our record comprise excerpts of the transcript of the disciplinary hearing, the affidavit in question, O’Malley’s 1989 and 1992 affidavits, and a Boston Globe article dated February 3, 1993, reporting O’Malley’s testimony at the disciplinary hearing. The latter two items originally accompanied the defendant’s motion to the Supreme Judicial Court prior to its decision in Commonwealth v. Bennett, supra, seeking a stay of deliberations and guidance from the court. The motion was denied on the day preceding publication of the court’s decision in Commonwealth v. Bennett, supra, “without prejudice to the presentation of a new motion for a new trial in the Superior Court. . . .”
The defendant’s request, apparently made for the first time in his brief, that he be permitted to examine O’Malley, even if it properly were made under Mass.R.Crim.P. 30(c)(4), 378 Mass. 901 (1979), rather than “pursuant to Mass.R.Crim.P. 14(a)(2),” 378 Mass. 874-875 (1979), as it was, is similarly deficient since the discretionary authorization under rule 30(c)(4) of “such discovery ... as would be available in civil cases” is predicated upon the moving party filing affidavits establishing “a prima facie case for [postconviction] relief.”
The Commonwealth, relying on its examination of the grand jury material submitted with the defendant’s first motion for a new trial, suggests that “the only specific information that the defendant could have cited in his second motion for new trial involved a partial recantation” made by a witness, after the November 10, 1989, search warrant was executed. Neither the grand jury minutes nor the substance of that recantation is set forth in our record. In any event, the Commonwealth intimates that the partial recantation is the information to which the footnote is directed and that it reflects primarily on the veracity of another O’Malley affidavit in the Stuart case in support of a November 22, 1989, warrant to search a residence other than the defendant’s, a search that has no relation to this case.