59 Mass. App. Ct. 217 | Mass. App. Ct. | 2003
In this direct appeal from his conviction for trafficking in heroin, see G. L. c. 94C, § 32E(c)(l), the defendant contends that trial counsel was ineffective because he failed (1) to file a motion to suppress evidence seized during execution of a no-knock search warrant and (2) to call essential witnesses at trial. The defendant also maintains that the prosecutor’s redirect examination and closing argument created reversible error and that the trial judge erred in denying his motion for a directed verdict.
Background. We recite the facts the jury could have found in the light most favorable to the Commonwealth, reserving further details for discussion in connection with the specific issues raised. Beginning in early January, 1999, New Bedford police Officer Troy Spirlet began surveillance of the defendant at 280 Acushnet Avenue, New Bedford. During the next three weeks, Officer Spirlet observed the defendant coming and going from the premises more than twenty-five times, often using a key to gain entry. On some occasions, Officer Spirlet followed the defendant from the premises to various locations and back to 280 Acushnet Avenue.
On February 5, 1999, Officer Spirlet obtained a “no-knock” search warrant for apartment 3H at 280 Acushnet Avenue that authorized the seizure of all drugs and materials related to the delivery or distribution of controlled substances. Officer Spirlet and three other officers executed the warrant the next day at approximately 8:00 a.m. Upon entry, they found the defendant, along with Kelly Rodrigues and their young daughter.
When the defendant saw the police, he ran down the hallway into the bathroom. After being subdued and handcuffed, the defendant indicated that he wished to cooperate and motioned his head toward a shoebox on a shelf in the closet. There the police found a large amount of heroin together with items commonly used in drug operations, including a stamp, a cutting agent, a sifter, glossine packets, and small elastics. The police
Also found were men’s clothing and shoes, an envelope from the Registry of Motor Vehicles addressed to the defendant at the Acushnet Avenue address, other mail forwarded to him there, and bank statements in the defendant’s name. At the time of the search, the defendant told the police that he lived at the apartment. Upon release from custody, the defendant signed a bail recognizance that listed 280 Acushnet Avenue as his residence.
1. Ineffective assistance of counsel.
a. The failure to file a motion to suppress. The defendant maintains that counsel’s failure to file a motion to suppress the drugs seized amounts to ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Specifically, he contends that probable cause to dispense with the common-law “knock and announce” requirement was lacking.
Although challenging the no-knock feature of the warrant was one option to consider, it was not the only reasonable one. “Unless a tactical decision of trial counsel was ‘manifestly unreasonable when made,’ we will not find ineffectiveness.” Commonwealth v. LaCava, 438 Mass. 708, 713 (2003), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). “[W]e give trial counsel’s tactical decisions due deference, and do not second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their
At trial, the centerpiece of the defense was disavowal of any connection to 280 Acushnet Avenue where the drugs and other indicia of distribution were found. Juxtaposed with this disavowal was the defendant’s assertion that Rodrigues had a drug problem, had been arrested for a drug offense, and had a number of questionable men friends who stayed with her, any of whom could have been the owner of the men’s clothing and the drugs.
In his testimony, the defendant explained that he had lived previously with Rodrigues at 379 Cedar Street, New Bedford, until October of 1998, when her heroin use, drug arrest, and unsavory male friends led him to leave. He then had moved to the Bronx, New York, where he lived at his mother’s house with his new girlfriend. He had no ongoing relationship with Rodrigues other than through their daughter. He only went to the premises three or four times to visit his daughter who lived there with Rodrigues.
He denied living or keeping clothing or toiletries at the Acushnet Avenue apartment, denied having keys or paying any portion of the rent, and denied owning the men’s clothing found there. All phone bills, gas and electric bills, and rental receipts for the apartment were in Rodrigues’s name or that of another woman. Except for one occasion, on visits to his daughter the defendant stayed with a friend at 35 Rodney French Boulevard.
The defendant further testified that on the night prior to execution of the search warrant, he had arrived by bus from New York at about 10:30 p.m. and watched his daughter while Rodrigues went out with her new boyfriend. The defendant had fallen asleep on the couch around 11:00 p.m. He awakened the next morning when the police entered the premises. The 250 bags of heroin found in the kitchen were placed there some time after the defendant had fallen asleep. He never saw the
Viewed as part of an over-all defense strategy, the determination not to risk undermining the defense of disavowing any connection to the apartment by filing a motion to suppress was not “manifestly unreasonable.” See Commonwealth v. Rondeau, 378 Mass. at 412-413. “[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). To challenge the search and seizure of items from the third-floor apartment at 280 Acushnet Avenue, the defendant had the threshold burden of establishing that the government intruded in a place in which he had a reasonable expectation of privacy.
The rules of criminal procedure require that a defendant seeking suppression raise the issue by motion and supporting affidavit, upon personal knowledge, setting forth the factual basis for the motion. See Mass.R.Crim.P. 13, 378 Mass. 871 (1979); Commonwealth v. Robles, 48 Mass. App. Ct. 490, 491 n.l (2000); Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 773-774 (2001). An affidavit from the defendant himself asserting a factual basis for a claimed expectation of privacy in the premises
Even assuming that the defendant could have met his threshold burden of establishing that a search in the constitutional sense occurred, see Commonwealth v. Frazier, 410 Mass. 235, 243 (1991), the likelihood of the defendant’s establishing the absence of probable cause to issue a no-knock warrant was at least open to question.
b. Additional witnesses. The defendant next contends that counsel was ineffective in failing to call his current girlfriend,
The testimony the defendant speculates these witnesses could have supplied was cumulative of the defendant’s testimony. See Commonwealth v. Knight, 437 Mass. 487, 500 (2002).
2. Guilt by association. We have considered and we reject the defendant’s contention that improper questioning by the prosecutor could have resulted in his conviction based on “a doctrine of guilty by association.” See Commonwealth v. Szemeturn, 3 Mass. App. Ct. 651, 653-654 (1975); Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999). One isolated improper question did not cause prejudicial error. Commonwealth v. Pagano, 47 Mass. App. Ct. 55, 60 (1999), cert. demed, 528 U.S. 1089 (2000).
4. Motion for required finding of not guilty. The evidence that the defendant had constructive possession of the heroin found in the apartment was ample. Mere presence in the area where contraband is found is insufficient to show “the requisite knowledge, power, or intention to exercise control over the [contraband], but presence, supplemented by other incriminating evidence ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). Commonwealth v. Monson, 57 Mass. App. Ct. 867, 870-871 (2003). Officer Spirlet observed the defendant coming and going from the premises more than twenty-five times, often using a key to gain entry. The defendant told the police he lived there, pointed out the drugs in the closet, and signed a bail receipt which stated he lived at the apartment. See ibid. The police found men’s clothing, as well as mail addressed to the defendant and forwarded there. See Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 913 (1986). The judge did not err in denying the defendant’s motion for a required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
Judgment affirmed.
Following his conviction, the defendant filed a new trial motion that raised the same issues pressed here on direct appeal. The trial judge denied the motion, and the defendant did not appeal from that ruling.
The defendant acknowledged signing the bail recognizance, but disavowed the handwriting that indicated Acushnet Avenue to be his residence.
The defendant does not argue that the search warrant application and affidavit failed to establish probable cause to believe that drugs were located at the apartment.
The drag charges on which the defendant was indicted were possessory offenses conferring automatic standing. See Commonwealth v. Amendola, 406 Mass. 592, 600 (1990); Commonwealth v. Montanez, 410 Mass. 290, 300-301 (1991); Commonwealth v. Lodge, 431 Mass. 461, 474-475 (2000).
Also pending was an indictment for conspiracy, a nonpossessory offense, in which Rodrigues was alleged to be a coconspirator. See Commonwealth v. Frazier, 410 Mass. 235, 244-246 & n.3 (1991); Commonwealth v. Albert, 51 Mass. App. Ct. 377, 379 nn.5 & 6 (2001).
See Commonwealth v. Macias, 429 Mass. at 704 n.6.; Commonwealth v. Jimenez, 438 Mass at 218. The affidavit in support of the search warrant application recited that a confidential informant made a controlled buy of heroin from the defendant at a location away from the apartment. The defendant did not allow customers to come to the apartment due to fear of complaints by neighbors and in order not to draw attention to himself. The affidavit also recited the defendant’s previous arrest for assault and battery by means of a dangerous weapon.
The defendant asserts that Rodrigues could also have testified that she and the defendant were not engaged in a relationship, and, further, to the respective locations of herself, the defendant, and their daughter at the time the police entered.
In his new trial motion, the defendant provided no affidavits from any of the prospective witnesses setting forth the substance of their proposed testimony. See Commonwealth v. Lynch, 439 Mass. 532, 538-539 & n.2 (2003).
Defense counsel made no contemporaneous objection.