Thе defendant was convicted of being an accessory after the fact to murder.
1. Sufficiency of the affidavit, a. Facts. The defendant argues that the affidavit for the search warrant failed to establish probable cause to believe that the items sought would be found in the apartment. The warrant, issued around 1:00 a.m. on February 3, 2001, Usted, inter aha, a shirt, a pair of gloves, and a pair of blue jeans worn by the shooter, the gun used, and any physical evidence, such as blood or hair that might be connected to the shooting.
Sergeant Thomas Sulhvan of the Massaсhusetts State poUce, an experienced homicide investigator, submitted the affidavit that supported the application for a warrant to search apartment 2 at 99 Jewett Street in Lowell, occupied by Ernesto Diaz.
According to Sergeant Sullivan’s affidavit, James said that his brother (the victim) was addicted to heroin, and that in the previous week, Tigger and a woman named Renee or Rachel had come to 239 Lakeview Avenue, and told James that they were looking for the victim, who they said had stolen $300 worth of heroin from them. They said that they were anxious to “get their hands” on the victim. When Nuon Tep (also known as “Tigger”) was interviewed by the police, he told them that he, Renee Daley, and Byrd had givеn the victim $300 to buy some heroin for subsequent resale, but that the victim had given them less than the expected amount of heroin. On February 2, at around 1:00 p.m., Tep said that Byrd and “Mike” (whom he would later identify from a photo array as the defendant) arrived at his house. The defendant was wearing leather gloves, and he showed Tep and Byrd a silver revolver which he pulled from his pants. They discussed going to the victim’s house “to scare him.” Byrd said, “Let’s go beat the shit out of [the victim].”
As described by Sergeant Sullivan, Tep, Daley, Byrd, and the defendant then proceeded to the victim’s apartment building. Once there, Tep, the defendant, and Byrd went to the victim’s door. At this point, Byrd had the gun in his pants. Tep heard a gunshot and the three men ran to a car in which Daley was sitting. Once inside the car, Byrd said, “That’s what happens when people fuck with me.” Daley then dropped Byrd and the defendant “off on Jewett Street in Lowell near an apartment building in the vicinity of the public works department.”
Police officers set up surveillance in the area around 99 Jew
Rivera, in turn, told the police that at around 6:00 p.m., he drove the defendant and Byrd to the Burlington Mall. At the mall, the defendant bought some hair dye, a package of hair combs, and a brush from a CVS pharmacy (CVS). From Burlingtоn, Rivera drove the defendant and Byrd back to Lowell, where the two men left the car, leaving behind the CVS bag with the merchandise and the receipts.
Based on his training and experience, Sergeant Sullivan noted that persons participating in the commission of a violent crime are “often in contact with the physical surroundings in a forceful or otherwise detectable manner. When they do so, those persons often transfer evidence to surfaces that they come in contact with at other locations.” He stated that attempts are often made to alter, destroy, and cover up evidence following the commission of violent crimes. However, “traces may be left in the form of blood, physiological fluids and secretions, hair, fibers, [and] gunshot residue.”
Based on the foregoing information contained in Sergeant Sullivаn’s affidavit, the search warrant for apartment 2 at 99 Jewett Street was issued and executed on February 3. Among the items found by the police were a white plastic bag containing a pair of tan trousers and a Hawaiian shirt; a pair of gloves; various documents addressed to the defendant or containing the defendant’s name; and the gun identified as the murder weapon.
b. Discussion. The Fourth Amendment to the United States Constitution and аrt. 14 of the Massachusetts Declaration of Rights require that warrants issue only upon probable cause. Probable cause to believe a person is guilty of a given crime does not, without more, create probable cause to search. Commonwealth v. Jean-Charles,
The defendant argues that the affidavit fails to meet the second part of the probable cause test, in that it does not establish that the items identified would probably be found in the apartment at 99 Jewett Street. More specifically, he argues that there was no first-hand observation of items being brought to the apartment, and that during the three and one-half hours between the commission of the crime and the sighting of the
The defendant misapprehends the notion of “probable” cause. “[T]he nexus between the items to be seized and the place to be searched need not be based on direct observation" (emphasis added). Commonwealth v. Donahue,
The affidavit sets forth sufficient facts connеcting the defendant and Byrd to apartment 2 at 99 Jewett Street, and to establish probable cause that evidence relating to the murder would be found there.
The items listed in the search warrant — the silver revolver
In assessing whether there was probable cause to believe that evidence would be disposed of in the first known place to which the defendant and Byrd went following the crime, we note the relationship between the occupant of the premises (Diaz) and the defendant and Byrd. The defendant and Byrd went to Diaz, demonstrated their trust in him by asking for a ride and accepting a ride arranged by him with his cousin, Danny Rivera. Rivera drove the defendant and Byrd (in a car registered to Diaz’s girlfriend) to a mall where they purchased tools of disguise (hair dye, combs and a brush), and then drove the defendant and Byrd back to Lowell. In these circumstances it is reasonable to conclude that the defendant and Byrd would be likely to hide evidence in thе apartment of Diaz, a man who provided both a means of leaving the area and access to hair dye.
2. Jury instruction. At trial, the prosecution adduced evidence in addition to that which was set forth in the search warrant affidavit. There was evidence that the defendant lived in apartment 2 at 99 Jewett Street; that after the shooting, at his request, he was driven to 99 Jewett Street; and that he told Byrd to come with him. On February 8, six days after the shooting, and after the defendant had purchased the hair dye from CVS, he was located in New York City and arrested. He told police that he was with Byrd, Tep, and Daley before the shooting, when they discussed the failed drug deal involving the victim. The defendant also said that Byrd wanted to beat up the victim. He denied having, seeing, or disposing of a firearm on February 2.
The defendant argues on appeal that the trial judge committed reversible error in his charge to the jury, improperly endorsing a factual conclusion for which the Commonwealth failed to adduce adequate evidence. The relevant portion of the jury instructions is as follows:
“And we’ve also heard evidence in this case, and it’s for you to determine whether — what it suggests or not. But, if you heard evidence in this case which suggests that the defendant fled the Commonwealth, or his evidence [sic], or otherwise engaged in conduct inconsistent with innocence, then, you may consider whether or not there was a — what we call a consciousness of guilt under the law.
“If the Commonwealth does establish that the defendant did conceal, or did dispose of certain evidence, or fled the Commonwealth, you may consider whether such flight, or such concealment, or disposing of evidence, indicate[s] feelings of guilt by the defendant, and whether, in turn, such feelings of guilt might tend to show actual guilt of the charges against him.
“You are not required to draw such inferences, and you should not do so, unless they appear to bе reasonable in light of all the circumstances in this case.
“If you decide that such inferences are reasonable, it will be up to you to decide how much importance to give them. But you should consider that there might be other reasons why an innocent person might flee, or conceal, or dispose of evidence.”
In essence, the defendant contends that the judge, by suggesting that the jury could find that the defendant had concealed or disposed of evidence, gave his imprimatur to a finding that the jury could not have made as matter of law.
Where, as here, an objection to jury instructions is timely made, “we review to determine if there were error and, if so, whether it was reversible error.” Commonwealth v. Simpson,
The defendant’s argument rests on the proposition that the Commonwealth produced no evidence tending to show “that the defendant did conceal, or did dispose of certain evidence.” In fact, the record is replete with testimony tending to show that
The defendant makes much of the fact that there was no evidence that the defendant actually helped Byrd to hide these items. A jury may rely not only on the evidence but on reasonable inferences drawn from the evidence. See, e.g., Commonwealth v. Dinkins,
Nor did the judge’s instruction contain words tending to endorse as true any inference. The judge qualified his references to the evidence with conditional language four times: “If you heard evidence in this case which suggests . . .”; “If the Commonwealth does establish . . .”; “You are not required to draw such inferences, and you should not do so, unless . . .”; “If you decide thаt such inferences are reasonable. . . .” Additionally, the judge gave the standard consciousness of guilt instruction, reminding the jury that there might be innocent reasons for flight or concealing evidence.
We do not focus on the challenged language alone, but instead examine it in the context of the entire jury instruction. See Commonwealth v. Grant,
Judgment affirmed.
Notes
He was acquitted of the other charge against him, illegal possession of a firearm.
In relevant part, the warrant sought “a silver revolver, a pair of jeans, a light colored or orange short sleeved shirt, black leather ski type gloves, ammunition, blood, physiological fluids and s[e]cretions, hair, fibers, and items containing traces of the above mentioned articles . . . .”
The defendant and the Commonwealth agreed that the defendant had “standing” or an “expectation of privacy” to challenge the search warrant in that the defendant’s personal papers were seized from the bedroom of apartment 2.
The defendant contends that the affidavit was deficient in that it failed to establish Diaz’s reliability. Contrary to the defendant’s characterization, Diaz was not an “informant.” “[P]ersons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of an investigation, are not informers.” Commonwealth v. Martin, 6 Mass. App. Ct. 624, 628 (1978), quoting from United States v. Oliver, 570
Probable cause to search the apartment was buttressed by the portions of the affidavit seeking forensic evidence (hair, blood, fibers, etc.), setting forth the violent nature of thе crime, and the nature of trace evidence. When the victim’s niece and her boyfriend rushed to the door of her apartment at 293 Lakeview Avenue, they saw that the victim’s face and head were “blown apart”; there was blood all around the victim. See Commonwealth v. Chongarlides, 52 Mass. App. Ct. 366, 372 (2001), summarizing Commonwealth v. Wilson,
The cases cited by the defendant are distinguishable. He cites Commonwealth v. Jean-Charles,
That the jury were discriminating in their assessment of the evidence was demonstrated when they found the defendant not guilty of unlawful possession of a firearm, which the Commonwealth argued that the defendant had concealed outside his apartment. Hence, any finding of consciousness of guilt was not based on the defendant’s having concealed the gun.