429 Mass. 620 | Mass. | 1999
A jury convicted the defendant of trafficking in 200 or more grams of cocaine and unlawful possession of a firearm and ammunition. Prior to trial, the judge denied the defendant’s motion to suppress evidence seized during his arrest. The defendant now appeals from all three convictions, arguing that the judge improperly denied his motion to suppress and, in the alternative, urging us to reduce his conviction to reflect possession of a lesser quantity of cocaine. We granted the defendant’s application for direct appellate review and now affirm.
On appeal, the defendant argues that the officers entered the apartment unlawfully, in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights or, in the alternative, that the officers, in failing to notify the defendant that they were there to arrest him, violated the knock and announce rule. The defendant further contends that the judge should not have admitted the items seized and the defendant’s statements in evidence, because they were obtained as a result of an unlawful entry into the defendant’s home. Lastly, the defendant argues that, because neither the verdict slip nor the jury’s verdict given in open court indicated the amount of cocaine on which the jury based their conviction, we should reduce the conviction to reflect that the jury never decided whether the defendant had trafficked in 200 or more grams of cocaine.
Motion to suppress. The defendant argues for the first time on appeal that the officers’ entry into his home was unconstitutional under the Fourth Amendment and art. 14, because the officers did not have a reasonable belief that the defendant was inside
The defendant bases the Fourth Amendment claim on his assertion that the police did not have his consent to enter the apartment and, therefore, the arrest was premised on an unlawful entry. Assuming that the officers had a reason to believe that the defendant was inside the apartment, this argument is disposed of by Payton v. New York, 445 U.S. 573, 603 (1980), where the United States Supreme Court stated the applicable rule: “[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Even if art. 14
When the police knocked on the defendant’s door, they were lawfully on the premises. As stated above, at that point, under the Fourth Amendment the police could have entered the apartment on a reasonable belief that the defendant was within. Payton v. New York, 445 U.S. 573, 603 (1980). As we mentioned previously, at the police station the officers had been given the defendant’s picture and were told where the defendant would likely be found. Moreover, at that moment the officers knew that another suspect had fled on learning of their presence. Even if at that time they had not yet learned that the fleeing suspect was Figueroa, his attempt to flee after they had identified themselves as police officers looking for Figueroa and Rivera, corroborated the information they had received that the defendant might be found at that address. Given these facts, the police had more than a reasonable belief; they had probable cause. Accordingly, even if art. 14 requires more than a reason to believe that the defendant was within the apartment to justify a forcible entry (a proposition that we do not reach) suppression would not'be required because the officers did not enter forcibly and because they had more than a mere reason to believe that the defendant was in the apartment.
The defendant next argues that the motion to suppress should have been granted because the police did not state their purpose when they knocked on his door. We disagree. The defendant relies on Commonwealth v. Antwine, 417 Mass. 637, 638 (1994), where we stated: “Before attempting forcibly to enter a private dwelling to execute a warrant, police must knock, announce their identity, and state their purpose, unless the circumstances justify dispensing with one or all of these requirements” (emphasis added). By its very terms this rule applies to a forcible entry. We have never held that aggressive knocking against a locked door, ultimately opened by the defendant, constitutes forcible entry for purposes of search and seizure analysis. Absent forcible entry, this rule is inapplicable. Commonwealth v. Sepulveda, 406 Mass. 180, 181-182 (1989).
Deficiency of the verdict. The defendant next challenges his ‘ conviction because both the jury’s verdict read in open court and the verdict slip which the foreperson signed omitted the weight of the cocaine involved. He argues that this omission requires us to reduce his conviction from trafficking in 200 or more grams of cocaine, to the less serious penalty for trafficking cocaine of an unspecified weight. We conclude that the omission does not require that we reduce the conviction.
The general rule is:
“The only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open and public verdict, given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court.”
Commonwealth v. McCarthy, 37 Mass. App. Ct. 113, 116-117 (1994), quoting Lawrence v. Stearns, 11 Pick. 501, 502 (1831). But as the Appeals Court has correctly noted, this rule is not without exception. Commonwealth v. McCarthy, supra at 117. See Commonwealth v. Evans, 42 Mass. App. Ct. 618, 626-627 (1997); Commonwealth v. Andino, 34 Mass. App. Ct. 423, 427-428 (1993). The exception is fully applicable here.
In Commonwealth v. McCarthy, supra at 114-118, the Appeals Court addressed a similar argument. There the defendant was convicted of breaking and entering a dwelling in the daytime with the intent to commit a felony, but the verdict slip and the charge read by the clerk omitted the “with intent to commit a felony” portion of the charge. Id. at 114. In rejecting the claim of error, the court noted:
“In his instructions to the jury on the indictment which charged the defendant with the crime of breaking and entering in the daytime with intent to commit a felony*626 (G. L. c. 266, § 18), the judge correctly defined each element of the offense and clearly informed them that they had to find beyond a reasonable doubt that the breaking of the building must be with ‘the specific intent to commit a felony.’ . . . The intent element . . . did appear on the face of the indictment, which was attached to the verdict slip and sent to the jury. After deliberations the foreperson checked on the verdict slip for that charge the box indicating guilt.”
Id. at 115-116. The Appeals Court rejected a similar argument in Commonwealth v. Andino, supra. In that case, the court declined to reduce a defendant’s conviction to “receiving stolen property” where the verdict slip failed to mention the charge of receiving a stolen motor vehicle. The court concluded that, because “[t]he evidence, arguments, and instructions at trial relating to a particular stolen motor vehicle” matched the charges, there was no risk that the jurors were mistaken. Id. at 427. Most recently, that court reached the same result on similar facts in Commonwealth v. Evans, supra.
Here the record reveals that the weight of the cocaine was not a live issue at trial. The Commonwealth introduced evidence of well over 200 grams of cocaine seized from the defendant’s apartment. In response, the defense argued only that the defendant was not aware that the drugs were in his apartment. During closing arguments, counsel for both the prosecution and the defense highlighted the weight requirement.
In light of these instructions and the surrounding circumstances, there is no risk that the jurors were .misled by the omission.
Judgments affirmed.
The defendant was apprehended in “apartment 2L,” the left hand apartment on the second floor.
The defendant concedes that this case is inapposite to the present facts where the officers had an outstanding warrant for his arrest.
Even assuming the defendant did not consent to the apartment search, this does not alter our conclusion that the entry was not forcible. Under Payton v. New York, 445 U.S. 573 (1980), they were authorized to arrest him regardless
Defense counsel stated: “And unless you believe that he knew there was over 200 grams of cocaine in that bag . . . then that presumption of innocence is still intact” (emphasis added).
Similarly the prosecutor’s closing included the following:
“You will have as Her Honor will instruct you, ladies and gentlemen, a laboratory analysis which you can consider on the issue of whether or not the substance is cocaine. And that was over 200 grams. Again, the laboratory analysis on one sample of the powder cocaine sample that was found inside that bag . . . this sample alone is in excess of 200 grams, according to the analysis.” (Emphasis added.)