Commonwealth of Massachusetts
Appeals Court
Bristol County 2003 Sitting
No. 2003-P-1306
_________________________________________
Commonwealth
v.
Michael Charros
__________________________________________
On Appeal From A Judgment Of The
Superior Court Of Bristol County
__________________________________________
Brief And Record Appendix
For The Defendant/Appellant
____________________________________________
Dana A. Curhan, Esq.
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
October 2003
Table of Authorities
A. Cases
B. Other Authorities
Issues Presented
Statement of the Case
Statement of Facts
A. The Commonwealth's Evidence
B. The Defendant's Evidence
Summary of the Argument
Argument
I. The Defendant Is Entitled To Suppression
Of The Physical Evidence Seized During
The Search Of His Person And His Subsequent
Admissions Where The Search Warrant
Authorized The Police To Search His House
And All Persons Present, But The Defendant
Was Seized Away From The Premises
II. The Trial Court Erred In Excluding Joe
Ryan's Admissions That He Set The Defendant
Up (A) Where Those Statements Were Admissible
As Statements Against Penal Interest, And
(B) Where They Were Critical To The
Defendant's Theory Of Defense
III. Defense Counsel's Closing Argument
Effectively Abandoned The Theory Of Defense
Presented At Trial And Thereby Deprived The
Defendant Of The Effective Assistance Of
Counsel
IV. The Trial Court Deprived The Defendant
Of His Constitutional Right To Present
His Theory Of Defense Where It Refused
To Order The Commonwealth To Disclose The
Identity Of Its Confidential Informant
V. Conclusion
Addendum
Record Appendix
1. Whether the defendant is entitled to suppression of the fruits of the search of his person and his subsequent admissions where the search warrant authorized the police to search his house and all persons present, but the defendant was seized away from the premises.
2. Whether the trial court erred in excluding admissions by an alleged government informant that he had planted evidence in order to set the defendant up (a) where those statements were admissible as statements against penal interest, and (b) where they were critical to the defendant's theory of defense.
3. Whether defense counsel's closing argument, which effectively abandoned the theory of defense presented at trial, deprived the defendant of the effective assistance of counsel.
4. Whether the trial court deprived the defendant of his constitutional right to present his theory of defense where it refused to order the Commonwealth to disclose the identity of its confidential informant.
On October 1, 1998, a Bristol County grand jury returned indictments charging the defendant Michael Charros with trafficking in 200 or more grams of cocaine, violation of the controlled substance laws in a school zone, conspiracy to violate the controlled substance laws, unlawful possession of a firearm without an ID card, and unlawful possession of ammunition without an ID card. (Indictments Nos. 9873CR0331A-E). [R. App. 1, 11-15] . On October 22, 1998, the defendant entered pleas of not guilty to all counts. [R. App. 1].
On December 21, 1998, the defendant filed (a) a motion to suppress all evidence relating to the execution of a search warrant; (b) a motion to suppress evidence in light of material misrepresentations in affidavit (Franks/Amral); (c) a motion to suppress evidence and statements based on an unlawful warrantless search and seizure; and (d) a motion for disclosure of informants. [R. App. 1-2, 19-31]. On April 1, 1999, the Honorable Richard Connon denied the request for a Franks/Amral hearing. [R. App. 2, 22]. The Honorable John Tierney conducted an evidentiary hearing on the remaining motions to suppress on August 11, 1999 and October 14, 1999. Judge Tierney issued a memorandum of decision and order denying those motions on December 29, 1999. [R. App. 2, 38-46]. The defendant filed a notice of appeal from the denial of the motions on January 5, 2000, as well as an application for leave to file an interlocutory appeal. A single justice of the Supreme Judicial Court, Ireland, J., denied the defendant's application on February 7, 2000. [R. App. 2, 47-48].
On March 13, 2000, the defendant filed a motion seeking to reopen the hearing on his motion to suppress evidence and statements, and seeking further discovery and disclosure of information relating to the informant. On March 14, 2000, Judge Tierney ordered that the Commonwealth produce information in its possession regarding Joseph Ryan. [R. App. 3, 49-51]. Judge Tierney held an evidentiary hearing on the motion on May 30, 2001. On June 11, 2001, he issued a memorandum of decision and order again denying the motion to suppress statements and evidence. [R. App. 5, 56-59]
On December 12, 2001, trial commenced before the Honorable Patrick F. Brady and a jury on all counts except the conspiracy count. At the conclusion of the Commonwealth's evidence, the defendant filed a motion for a required finding of not guilty. Judge Brady denied that motion. The defendant renewed his motion at the conclusion of all the evidence. Judge Brady allowed that motion as to the firearm and ammunition counts but denied it as to the two remaining counts. [R. App. 6].
On December 21, 2001, the jury returned verdicts of guilty on the trafficking and school zone charges. [R. App. 6]. On the trafficking count, Judge Brady sentenced the defendant to fifteen years to fifteen years and a day. He imposed a consecutive two and a half year House of Correction sentence on the school zone count. [R. App. 6].
The defendant filed a motion to set aside the verdicts on December 27, 2001. No action appears to have been taken on this motion. The defendant filed a sentencing appeal on December 31, 2001, but subsequently withdrew that appeal. [R. App. 6, 60-61].
The defendant filed a timely notice of appeal on January 18, 2002. [R. App. 6, 62]. The case was entered on the docket of this court on October 6, 2003.
A. The Commonwealth's Evidence
At around 5:30 p.m. on August 10, 1998, officers from the Narcotics Unit of the New Bedford Police Department parked several unmarked vehicles in the vicinity of 164 Query Street in New Bedford, the residence of the defendant Michael Charros and his wife Geraldine. [08/11/99, 6, 29, 68, 126; Tr. 3, 153, 181]. The officers had a search warrant authorizing the search of the first-floor apartment at 164 Query Street and of “all persons present on the premises.” They had a second warrant authorizing the search of a brown pick-up truck registered to the defendant. [08/11/99, 39, 67, 126, 155; Tr. 3, 153; Tr. 4, 121-123].
The officers planned to wait for the defendant to leave the premises and then stop him at Concord Street, about two hundred yards from the house. [08/11/99, 128-131]. As they watched the house, Detective Lieutenant Mel Wotton observed the defendant take the garbage outside. [08/11/99, 68, 110, 132]. At around 6:00, Wotton saw a man other than the defendant leave the driveway of 164 Query Street. [08/11/99, 146-148; Tr. 4, 154]. He reported what he saw to Detective Paul Oliveira, the officer in charge of the investigation. [08/11/99, 150-151; Tr. 3, 184, 192-196; Tr. 4, 49, 188-119, 159, 161].
Shortly thereafter, Wotton and Oliveira saw a white and blue van leave the driveway of 164 Query Street with the defendant at the wheel. [08/11/99, 68, 83-84, 104, 133; Tr. 3, 130]. Oliveira radioed Officers Robert Aguiar and John Pereira to stop the van. [08/11/99, 7-8, 20, 145]. Aguiar and Pereira blocked the van's path with their unmarked cruiser at the corner of Acushnet Avenue and Kovell Street, about six blocks from the Query Street address. [08/11/99, 7-8, 21, 26; Tr. 2, 248; Tr. 2, 137; Tr. 3, 39; Tr. 4, 125]. They ordered the defendant out of the van. [08/11/99, 8; Tr. 3, 39]. Neither Aquiar nor Pereira recalled drawing a weapon at that point. [08/11/99, 26; Tr. 3, 39].
When the defendant stepped out of the van, Aguiar informed him that they had warrants for his home and vehicle. [08/11/99, 8]. He then frisked the defendant. In the defendant's front pocket, he discovered a plastic sandwich bag with two small paper envelopes containing about twenty-dollars worth of cocaine. [08/11/99, 9, 27; Tr. 2, 112, 138, 139]. Aquiar handcuffed him and placed him in his cruiser. [08/11/99, 9, 27].
In the meantime, Pereira entered the van and observed Geraldine Charros in the front passenger seat and her eight-year-old son sitting in the back seat. [08/14/99, 22]. Pereira drove Geraldine and her son back to 164 Query Street in the van while Aguiar followed in the cruiser with the defendant in the back. [08/14/99, 23]. The officers escorted the three of them inside. [08/11/99, 10, 135]. The defendant remained handcuffed. They did not handcuff Geraldine in order to avoid upsetting their son. [08/11/99, 73, 135].
Detective Dennis Ledo read the defendant Miranda warnings at the kitchen table and then advised them that the officers had search warrants for their apartment and vehicle. [08/11/99, 13, 37, 135; Tr. 2, 194; Tr. 3, 111, 131]. He allowed the defendant and Geraldine to read through the warrants. [08/11/99, 39, 135]. He then asked Geraldine to arrange to have someone remove the boy from the scene. She had her sister pick him up and take him to her house. [08/11/99, 39, 72-73, 135-136].
Underneath a large brown desk in one room, the officers recovered an unopened box of sandwich bags and a bag of white powder, later determined to be cocaine. [Tr. 2, 8-10, 70; Tr. 3, 160]. Inside the desk in a cellular telephone box, they found a sandwich bag with eight small corner bags and one folded paper packet, all containing cocaine. Also inside the desk, they recovered a bottle of inositol powder, one hundred forty dollars in cash, a sandwich bag containing white rice, and several small empty square paper packets. [Tr. 2, 77]. On top of the desk, they found an open box of sandwich bags, a butter knife, a triple beam balance scale, scissors, a brochure with slash marks in it, mail addressed to Michael and Geraldine Charros, and a pager. [Tr. 2, 88-89, 94]. From a closet in the same room, the officers located a brown strong box and a Sentry safe. [Tr. 2, 94-95]. Inside the safe, they found $18,000 in cash and a white plastic bag containing 29 grams of cocaine. They found a .22 caliber handgun and some ammunition in the box. [Tr. 4, 101-102, 125].
From the front living room, the police recovered a police band scanner. [Tr. 2, 235-238]. In a bedroom, they found a pocketbook containing $1,500 in cash. [Tr. 4, 223]. They also searched the pocketbook that Geraldine Charros had been carrying when she initially left the home and found $821 in cash. [Tr. 4, 223-224]. In all, around 250 grams of cocaine were seized and around $22,000 in cash. [08/11/99, 77; Tr. 2, 139, 179].
During the execution of the warrant, Detective Oliveira asked the defendant if he would be willing to cooperate with them. [08/11/99, 74; Tr. 3, 112, 158-159]. After the officers completed the search, the defendant agreed to speak with him but asked to do so in another room. [08/11/99, 42; Tr. 2, 196]. They went to the child's bedroom. The defendant told Oliveira he had been dealing cocaine for about eight years, but was only a “small-time” dealer. [08/11/99, 77; Tr. 3, 119, 164]. He said that large sums of money found in the house were his savings and inheritance. [08/11/99, 77; Tr. 3, 120]. He was unable to put his money in the bank because he owed about $30,000 in child support. [08/11/99, 77]. He also explained that the gun found in the house had belonged to his father, who recently passed away. [08/11/99, 77]. Nobody else was present during the conversation. [08/11/99, 101; Tr. 4, 59].
Before the police brought them to the police station, Geraldine indicated that the defendant was a diabetic and needed some orange juice. [08/11/99, 17, 79; Tr. 2, 161]. About forty-five minutes had passed from the time the defendant arrived at the apartment up to the point when he was allowed the orange juice. [08/11/99, 17-18, 44]. The defendant had appeared normal during that time; the officers noted that he talked, walked, and answered questions in a normal fashion. [08/11/99, 17 42, 44, 75-76, 137].
B. The Defendant's Case
In January of 1997, the defendant's father came to live with the defendant, Geraldine, and their son at their home on Query Street. [Tr. 5, 81, 159; Tr. 6, 152]. The defendant's father had been in poor health, suffering from diabetes-related illnesses. He had been in a nursing home prior to moving in with them, but the facility did not care for him appropriately. [Tr. 5, 82-84; Tr. 6, 150].
The defendant cared for his father during the day including taking him to his various medical appointments. He would sit with his father and watch television or would join his father in one his father's favorite activities-listening to the police or emergency bands on the radio. [Tr. 3, 88-89; Tr. 5, 33-37, 88-89; Tr. 6, 145, 168].
Geraldine Charros also helped with the care of her father-in-law. She would package and freeze in plastic baggies special meals for him, weighing very small portions of meat and vegetables on a scale. [Tr. 5, 38, 40, 108, 111]. Because he could only eat such small portions, she obtained inositol from the health food store to help him feel full after the meals. [Tr. 5, 39, 107-110]. She would coat the food with the inositol after weighing and packaging it. [Tr. 3, 91-93].
The defendant and his father were particularly close, and when his father died in March of 1998, the defendant became increasingly withdrawn. [Tr. 3, 96; Tr. 5, 170]. His family and friends noticed that the defendant appeared disheveled and unkempt. [Tr. 3, 97-98; Tr. 5, 171-173]. During this time period, the defendant, like his father, was diagnosed with diabetes. [Tr. 5, 134]. Notwithstanding his diabetes, the defendant began to drink heavily. [Tr. 5, 172]. Geraldine also noticed white powder on the defendant's nose on one occasion and believed he was using drugs. [Tr. 5, 174].
The defendant admitted to letting himself go, drinking, and using cocaine to ease his depression after his father's death. He had used cocaine years earlier, and would purchase it from Joe Ryan until he quit in 1994. Ryan was a local drug dealer who also had a reputation for violence. The defendant had seen him in fights at a local bar, and his behavior alarmed the defendant and Geraldine. Notwithstanding his fear, he again began purchasing small amounts of cocaine from Ryan. [Tr. 5, 201-202, 138; Tr. 6, 138, 179-183].
On one occasion in July of 1998, Ryan delivered cocaine to the defendant's house. Ryan watched as he retrieved a key from the desk and took the money out of a locked tin in the closet. [Tr. 6, 206-212]. Ryan solicited the defendant to sell drugs at one point, but the defendant refused. [Tr. 6, 215]. The defendant last purchased cocaine from Ryan on August 8, 1998. [Tr. 6, 200, 205].
At around 5:30 p.m. on August 10, 1998, Ryan knocked on the defendant's door. He entered the house carrying a small box. He asked the defendant to hold the box for him, explaining that he had something going down with the police and had to leave it with someone. [Tr. 5, 180, 185; Tr. 6, 218, 221-222, 229]. The defendant refused several times, but Ryan insisted, and his behavior scared the defendant. Ryan walked into the room with the desk, put the box on the desk, and insisted that he was leaving it there. [Tr. 5, 186-190; Tr. 6, 222-226, 234]. He asked where the garbage was and then threw a bag into the trash under the desk. [Tr. 6, 231-232]. Ryan threw a set of keys on the desk before walking out. [Tr. 6, 237]. When Ryan left at around 5:45, the defendant locked up the house, and he and his family drove off in their van to get dinner. [Tr. 5, 42, 191-194; Tr. 6, 238-239].
On the way to dinner, a police car blocked the van, and the officers ordered him out of the van. [Tr. 5, 195-196; Tr. 7, 11]. They searched him and returned him to the house. [Tr. 6, 8-32]. As the police found the various drugs in the house, the defendant felt like he was being set up, but he didn't say anything because he was not feeling well physically and because he feared Ryan. [Tr. 7, 20].
The defendant saw Ryan at a Store 24 around the beginning of February or March of 1999. [Tr. 7, 33]. Several times, Ryan told him that he'd “better shut [his] fucking mouth.” The defendant replied that he could not speak to him. [Tr. 7, 34-35].
The defendant's sister, Linda Charros, also saw Ryan in the Spring of 1999, during the pre-trial phase of the defendant's case. [Tr. 6, 134]. Ryan came into the bar where she worked as a bartender, leaned over the bar and told her, “I heard that - Oliveira was telling me that your brother's been naming me in court; and that if he don't shut his F'ing mouth, he was going to get whacked.” [Tr. 6, 136].
After his father's death, the defendant moved the items used in his care, his desk and some of his other belongings into their son's former room. [Tr. 6, 164-165]. The defendant offered evidence that the cash found by the police during the search came mainly from inheritance and insurance money from the defendant's father. [Tr. 5, 49, 90-92, 167]. Geraldine testified at length that the rest of the money came from her company to reimburse her for expenses she had incurred for the company on her personal credit cards. [Tr. 5, 57-72, 93-105].
1. The defendant is entitled to suppression of the fruits of the search of his person and his subsequent admissions. While the search warrant authorized the police to search his house and all persons present, the defendant was seized approximately a mile from the premises. At the time of the arrest, the police lacked any other grounds to arrest or search him. The evidence obtained as a result of the unlawful stop and search, as well as the statements made after his arrest must be suppressed. [Pages 18-27].
2. The trial judge erred in excluding on hearsay grounds admissions by Joseph Ryan that he had planted the drugs and other evidence in order to set the defendant up. Those statements were admissible as statements against penal interest and were critical to the defendant's theory of defense. [Pages 28-33].
3. Defense counsel's closing argument, to the extent that it conceded that the police testified truthfully and acted in good faith, effectively abandoned the theory of defense presented at trial. In arguing in this manner, counsel deprived the defendant of the effective assistance of counsel. [Pages 34-41].
4. The trial court deprived the defendant of his constitutional right to present his theory of defense where it refused to order the Commonwealth to disclose the identity of its confidential informant. In seeking to establish that Joseph Ryan planted the drugs in the defendant's residence just prior to the entry by the police and at the direction of the police, it was crucial to show that Ryan was in fact the confidential informant named in the warrant affidavit. In this case, the officers denied Ryan's involvement, and the judge simply accepted their denials without question when there was a readily available way of verifying the officers' testimony-i.e., by requiring disclosure of the name of the confidential informant. [Pages 42-48].
I. The Defendant Is Entitled To Suppression Of The Physical Evidence Seized During The Search Of His Person And His Subsequent Admissions Where The Search Warrant Authorized The Police To Search His House And All Persons Present, But The Defendant Was Seized Away From The Premises
In this case, the police sought an obtained a warrant that authorized them to search not only the defendant's residence, but all persons present at that location at the time of its execution. Instead of executing the warrant upon their arrival, they waited some time and then followed the defendant as he and his family drove off in a van. They ultimately stopped the vehicle about a mile from the house. At that point, they searched the defendant, and upon finding two packets of cocaine in his pocket, they arrested him. They also seized a pocketbook from Geraldine containing a sizeable amount of cash, which the Commonwealth ultimately introduced at trial. After placing the defendant in custody, the police brought the defendant back to the house where they elicited a number of admissions. While the warrant might have permitted the officers to search the defendant's person if they had located him on the premises to be searched, at the time they stopped the car, he was a considerable distance from the house, and the authority to search his person pursuant to the search warrant had evaporated. The evidence obtained during the search on the street should have been suppressed, and any evidence traceable to the unlawful search should have been suppressed as well. Where the evidence traceable to the unlawful search significantly strengthened the Commonwealth's case, the defendant is entitled to a new trial.
A search warrant containing an “all persons present clause” may legitimately authorize the search of particular persons if located on the premises to be searched at the time of its execution. See Commonwealth v. Smith, 370 Mass. 335, 343-345 (1976). However, “[o]nly in special circumstances will a search warrant aimed principally at the premises also be held validly to include the search of any person present”, and such clauses demand strict scrutiny in order to pass constitutional muster. Commonwealth v. Souza, 42 Mass. App. Ct. 186, 189 (1997). See Id.
For purposes of this appeal, the defendant will assume that the magistrate properly authorized the search of all persons present during the execution of the warrant, but the issue in this case is somewhat different. The police seized and searched the defendant and Geraldine prior to the execution of the warrant and at a considerable distance from the scene.
The motion judge acknowledged that no Massachusetts court appears to have specifically addressed the constitutionality of detaining a suspect at a remote location and returning him/her to the scene during the execution of the warrant. [R. App. 42]. He concluded, however, that Michigan v. Summers, 452 U.S. 692 (1981) authorized such a course of action. Michigan v. Summers held that a search warrant for a residence implicitly permitted the police to detain a resident who was descending the front steps as they were about to execute the warrant. 452 U.S. at 340-341. The Court found little practical difference between such a detention and holding the suspect inside, which the officers were entitled to do. Id.
In applying Summers to the present circumstances, the motion judge went well beyond what the Court intended. Indeed, the Court recognized that a seizure is more intrusive if it “'involves moving the suspect to another locale.'” 452 U.S. at 700 n. 12, quoting 3 Wayne R. LaFave, Search and Seizure § 9.2, at 36-37 (1978). The Court distinguished between situations in which an individual is asked simply to remain at his home while police officers search the premises and those in which the police detain a suspect at an entirely different location and transport him to the scene of the search. Id. at 705.
Further, courts in other jurisdictions have expressly held that an “all persons present” clause in a search warrant does not authorize the stop of a person at a location other than the target premises, especially where that stop involves a search. See Leveto v. Lapina, 258 F.3d 156, 169 (3rd Cir. 2001); United States v. Reinholz, 245 F.3d 765 (8th Cir. 2001); United States v. Sherrill, 27 F.3d 344, 346 (8th Cir. 1994) (stop of defendant after he drove one block away from his home not authorized by Summers as “intrusiveness of the officers' stop and detention on the street was much greater” and “officers had no interest in minimizing the search's risks because [the defendant] had left the area of the search and was unaware of the warrant”); United States v. Hogan, 25 F.3d 690, 693 (8th Cir. 1994) (stopping someone three to five miles from his home and taking him back in handcuffs for the execution of a warrant is far more intrusive than simply holding him at the premises, as in Summers); United States v. Boyd, 696 F.2d 63, 65 n. 2 (8th Cir. 1982) (noting that Summers “certainly did not sanction the search and seizure of residents who, at the time of the search, are several blocks from their home”); United States v. Tate, 694 F.2d 1217, 1223 (9th Cir. 1982) (when neither on nor near premises, search warrant does not authorize arrest of persons associated with premises for purpose of conveying them to the scene of the search); Commonwealth v. Graziano-Constantino, 718 A.2d 746, 748 (Pa. 1998) (no authority to stop vehicle two and one-half miles from premises since warrant relates only to premises and things and persons found thereon); State v. Crank, 441 S.E.2d 531, 533-534 (Ga.App. 1994) (search warrant did not authorize intrusion far greater than in Summers where seizure miles from home, on public road in a car); State v. Blacksten, 507 N.W.2d 842 (Minn. 1993) (no authority for detaining defendant two miles from premises while police anticipated receipt of search warrant); People v. Kerrigan, 49 A.D.2d 857, 858, 374 N.Y.S.2d 22, 23-24 (1975) (search warrant for florist shop and defendant did not authorize search of defendant on street a day after warrant executed at shop, as search warrant meant defendant could be searched if he was found on those premises). 2 Wayne R. LaFave, Search and Seizure, §4.9(a) at 628 n.3 (1996, 3d ed.).
In those few cases that have attempted to expand the rationale in Summers to stops occurring some distance from the target premises, factors not present here have supported the police action. See e.g. United States v. Cochran, 939 F.2d 337, 338-339 (6th Cir. 1991) (upholding stop of defendant a block from his house where they knew that he carried a firearm and that the house was protected by a guard dog, and where waiting for him to leave home before detaining was a reasonable safety precaution). In this case, the police had no information suggesting that the defendant or anyone at 164 Query Street might be armed or that there was a risk that evidence might be destroyed by executing the warrant before the defendant left the house. See United States v. Hogan, 25 F.3d at 693 (restraint of liberty from off premises detention not warranted where there were no special circumstances supporting such action). Compare Commonwealth v. Molina, 439 Mass. 206, 209-210 (2003).
Even if such a detention could pass muster under federal constitutional standards, it may be objectionable under the Massachusetts Constitution. Article 14 of the Massachusetts Declaration of Rights sometimes “guarantee[s] protections that . . . may not be recognized under the Fourth Amendment.” Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). See Commonwealth v. Clermy, 421 Mass. 325, 399 n.2 (1995); Commonwealth v. Madera, 402 Mass. 156, 160 (1988). See also Commonwealth v. Blevines, 438 Mass. 604, 607 n.4 (2003); Commonwealth v. Ford, 394 Mass. 421, 426-427 (1985); Commonwealth v. Upton, 394 Mass. 363, 373 (1985). In view of the restrictive view that the Massachusetts appellate courts have taken toward “all persons present” clauses in general, the defendant suggests that the extension of such clauses to off premises detentions and warrantless searches cannot be sustained under Article 14 of the Massachusetts Declaration of Rights.
Aside from the claimed authority under the search warrant, the police had no other justification for detaining and searching the defendant and Geraldine. They did not have a separate arrest warrant. Contrast Commonwealth v. Netto, 438 Mass. 686, 694-696 (2003). They had no information suggesting that any occupant of the car was engaged in criminal activity at the time or that any occupant posed a danger to the police. See Commonwealth v. Souza, 42 Mass. App. Ct. at 191-192. The evidence obtained as a result of the unlawful stop and search was “come at by exploitation of [the] illegality” and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 487-488 (1963); Commonwealth v. Pietrass, 392 Mass. 892 (1984).
At the very least, the defendant is entitled to suppression of the packets of cocaine found on his person. Although the amounts were rather small, his possession of cocaine packaged similarly to the cocaine in the house linked him with the evidence found during the execution of the search warrant. His possession of the packets of cocaine thus undercut his contention that Ryan had planted the cocaine immediately prior to the arrival of the police. The cocaine found on his person also deprived him of a perfectly valid argument that the Commonwealth could not prove beyond a reasonable doubt that he possessed the cocaine found in the house. If the Commonwealth established that either the defendant or Geraldine possessed the cocaine but could not prove which of them possessed it, the defendant might have been entitled to a required finding of not guilty. See Commonwealth v. Salemme, 395 Mass. 594, 598-603 (1985) (evidence failed to establish which of two persons at table shot the victim); Berry v. Commonwealth, 393 Mass. 793, 796 (1985) (evidence failed to establish which adult inflicted fatal injuries). At the very least, he could have argued to the jury that the Commonwealth had failed to prove which of the two possessed the drugs.
The defendant is also entitled to suppression of the statements he made following his arrest. See Commonwealth v. Reyes, 38 Mass. App. Ct. 483, 487-488 (1995), S.C., 423 Mass. 568 (1996) (“fruit of the poisonous tree doctrine” applies to statements); Commonwealth v. O'Connor, 21 Mass. App. Ct. 404, 406 (1986). See also Commonwealth v. Bottari, 395 Mass. 777, 785 (1985). The fact that he was transported back to his house and provided with Miranda warnings prior to making the statements does not break the chain of the illegality. See Commonwealth v. Dasilva, 56 Mass. App. Ct. 220, 228 n.9 (2002). Ultimately, the fact that the defendant was arrested at the scene of the stop and was thus in custody at the time he was questioned likely affected his decision whether to cooperate. See Commonwealth v. Osachuk, 418 Mass. 229, 235-237 (1994). Given the close temporal connection between the illegal search and seizure and his admissions, and given the lack of an intervening event which could separate the occurrences, it is plain that his statements resulted from the unlawful police action. Commonwealth v. Reyes, 38 Mass. App. Ct. at 487-488. The statements should have been suppressed.
Because the evidence that should have been suppressed played such a crucial role in obtaining the conviction, the defendant must be granted a new trial.
II. The Trial Court Erred In Excluding Joe Ryan's Admissions That He Set The Defendant Up (A) Where Those Statements Were Admissible As Statements Against Penal Interest, And (B) Where They Were Critical To The Defendant's Theory Of Defense
At trial, the defendant attempted to introduce statements allegedly made by Joe Ryan to the effect that he had set up the defendant and Geraldine. Specifically, Geraldine was prepared to testify that when she and the defendant saw Ryan after they had been arrested, he stated, “I felt bad about that, but I was in trouble myself … that I had to get out of with the police.” [Tr. 6, 9]. After extensive discussion, the judge ultimately ruled this statement to be inadmissible hearsay. [Tr. 6, 9-15]. Shortly thereafter, the defendant sought to introduce a similar statement through Linda Charros. [Tr. 6, 127-131]. According to counsel's offer of proof, about three or four weeks after the defendant's arrest, she saw Ryan in a local bar. He approached her and indicated that “he had heard that [the defendant and Geraldine] had been busted. He was sorry that he had to set them up because he had difficulties of his own. He was being pushed by Detective Oliviera.” [Tr. 6, 128]. The judge sustained the Commonwealth's objection. [Tr. 6, 131]. Notwithstanding any hearsay aspect to this statement, it was in fact a statement against penal interest, since it implied that he had planted the contraband for which they had been arrested. Where Ryan was for all practical purposes unavailable, and where his admission would have strongly supported the defendant's theory of defense, the judge erred in excluding that statement.
A defendant's right to present his theory of defense is an important right designed to vindicate the principle that “[t]he ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” Taylor v. Illinois, 484 U.S. 400, 409 (1988), quoting from United States v. Nixon, 418 U.S. 683, 709 (1974). Indeed, the right of an accused to present his version of the facts “is necessary to ensure that the defendant is not deprived of a fair trial.” Chambers v. Mississippi, 410 U.S. 284, 302-303 (1973). See Washington v. Texas, 388 U.S. 14, 19 (1967). “This right is guaranteed not only by the Sixth and Fourteenth Amendments to the Federal Constitution, but also by art. 12 of the Massachusetts Declaration of Rights.” Commonwealth v. Louraine, 390 Mass. 28, 33-34 (1983). See Crane v. Kentucky, 476 U.S. 683, 690-691 (1986) (whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense).
Where evidence supporting the defendant's theory of defense takes the form of an out of court statement, the hearsay rule would ordinarily bar its admission. However, the courts have recognized that the hearsay rule must yield in these circumstances and that an out of court statement should be admitted if it meets a three-part test: “'(1) the declarant's testimony must be unavailable; (2) the statement must so far tend to subject the declarant to criminal liability “that a reasonable man in his position would not have made the statement unless he believed it to be true”; and (3) the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.'” Commonwealth v. Galloway, 404 Mass. 204, 207-208 (1989), quoting Commonwealth v. Drew, 397 Mass. 65, 73 (1986). See Commonwealth v. Tague, 434 Mass. 510, 516 (2001); Commonwealth v. Reynolds, 429 Mass. 388, 401 (1999); Commonwealth v. Jewett, 392 Mass. 558, 562 (1984); Commonwealth v. Carr, 373 Mass. 617, 623 (1977);Commonwealth v. Fiore, 53 Mass. App. Ct. 785, 790 (2002). See also Chambers v. Mississippi, 410 U.S. at 303.
In this case, as defense counsel explained [Tr. 6, 14], Ryan would clearly have a Fifth Amendment privilege and would almost certainly be unavailable as a matter of law. Ryan had been arrested some months after the defendant's arrest, and it is doubtful that he could have testified for either the prosecution or defense without incriminating himself. See Commonwealth v. Galloway, 404 Mass. at 207-209.
The implied admission that he had planted drugs in the defendant's house in advance of the execution of the search warrant clearly would be a statement against penal interest. Planting drugs in order to “set up” a target is a crime, even if done with the approval of the police. See United States v. Regan, 103 F.3d 1072, 1076-1077 (2nd Cir. 1997) (discussing scheme where police officers recruited informant to “plant” drugs on target).
Finally, the corroboration element is satisfied, and the statement must be admitted, if “'there is some reasonable likelihood that the statement could be true.'” Commonwealth v. Tague, 434 Mass. at 516-517, quoting Commonwealth v. Galloway, 404 Mass. at 208 and Commonwealth v. Drew, 397 Mass. at 76. “'[I]n evaluating whether a statement is adequately corroborated, a court should “not be stringent.'” Commonwealth v. Charles, 428 Mass. 672, 679-680 (1999), quoting from Commonwealth v. Drew, 397 Mass. at 75 n.10. “'If the issue of sufficiency of ... corroboration is close, the judge should favor admitting the statement' and rely on 'the good sense of the jury [to] correct any prejudicial impact.'” Id. at 680, quoting from Commonwealth v. Drew, 397 Mass. at 75 n.10. See Commonwealth v. Fiore, 53 Mass. App. Ct. 785, 791 (2002); Liacos, Massachusetts Evidence § 8.10, at 519 (7th ed. 1999).
In this case, Lieutenant Wotton observed a man walking out of the driveway to the defendant's house moments before the execution of the warrant, corroborating the testimony of both the defendant and Geraldine that Ryan had been in the house and left immediately prior to the raid. [Tr. 4, 154-161; Tr. 5, 185-193, 213; Tr. 6, 221]. Geraldine specifically testified that Ryan had “foisted” the box of drugs upon the defendant and demanded that he take it, ignoring his repeated refusals to accept the box. [Tr. 5, 185-189; Tr. 6, 221-237]. The defendant testified that Ryan insisted on leaving the box with him because he had something going down with the cops. [Tr. 6, 229]. The defendant further testified that after his arrest Ryan threatened him at a Store 24. [Tr. 7, 33-35]. The defendant's sister testified that Ryan threatened the defendant's life. [Tr. 6, 125-139]. Testimony by a number of witnesses, including police officers, established that Ryan was in fact a drug dealer and was living in what the police described as a known drug house. [Tr. 4, 174-179]. “[B]ased on the independent evidence introduced at trial [and in the motion hearings, Ryan's] statement was sufficiently corroborated, and there was 'some reasonable likelihood that [his] statement could be true.'” Commonwealth v. Charles, 428 Mass. at 680, quoting from Commonwealth v. Drew, 397 Mass. at 76.
Where the statement offered clearly “was admissible as a statement against [Ryan's] penal interest[,]” and where it strongly supported the defendant's theory of defense, “it was error for the judge to exclude it.” Commonwealth v. Fiore, 53 Mass. App. Ct. at 791-792. The defendant should be granted a new trial.
III. Defense Counsel's Closing Argument Effectively Abandoned The Theory Of Defense Presented At Trial And Thereby Deprived The Defendant Of The Effective Assistance Of Counsel
The defendant tried this case on the theory that the police had framed him and then lied about their conduct during trial. More specifically, the defendant testified and offered evidence suggesting that Joe Ryan was a police informant, that the police had arranged to have Ryan plant the drugs and paraphernalia in his house immediately prior to the execution of the search warrant, and that the officers then lied about his status and activities. Further, the defendant specifically testified that he never made the admissions attributed to him during the execution of the search warrant. In order to accept the defense theory of the case, the jurors would have to find not simply that the officers had shaded the truth, but that they outright lied. Inexplicably, the defendant's trial counsel abandoned this theory during his closing statement, repeatedly conceding that the police were not lying about the events in question. He suggested that the police may have been mistaken about some of the things they described but that they acted honorably and according to conscience This last minute change of strategy directly contradicted the defendant's own testimony, “denuded [the defendant] of a defense and deprived him of effective assistance of counsel.” Commonwealth v. Munera, 31 Mass. App. Ct. 380, 388-389 (1991).
“[C]losing argument for the defense is a basic element of the adversary factfinding process in a criminal trial.” Herring v. New York, 422 U.S. 853, 858 (1975). “[N]o aspect of [our adversary system] could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.” Id. at 862.
In this case, the defendant was, of course, in a rather difficult spot. The police found cocaine, money and paraphernalia in an area of his house over which he had control, and they found a small amount of cocaine on his person. There was, however, a plausible theory of defense-one which, if accepted by the jury, would have resulted in his acquittal. The defendant and Geraldine both testified that, over their objection, Joe Ryan had left the drugs in their apartment immediately prior to the execution of the search warrant. Especially where the police had observed an unidentified man walking out of the defendant's driveway minutes before they executed the warrant, the jurors certainly could have accepted this theory of defense.
In order for the defense to fly, however, the jurors had to accept that Ryan acted at the direction of the police, in effect, planting the drugs in advance of the execution of the search warrant. Indeed, the defendant testified that he believed the police had set him up. [Tr. 7, 20]. The jurors also had to disregard the admissions attributed to the defendant to the effect that the drugs were his and that he was a drug dealer. The defendant specifically addressed this latter point, testifying that he made no such statements and that Detective Oliviera lied when he testified to the contrary.
“Defense counsel should stay with his role as advocate and not attempt to play the role of juror.” Commonwealth v. Street, 388 Mass. 281, 287 (1983). Here, by conceding that the officers were not lying, defense counsel effectively told the jurors (A) that the police had not used Ryan to set the defendant up, and (B) that the defendant himself had lied when he denied making the incriminating statements. Compare Commonwealth v. Triplett, 398 Mass. 561, 569 (1986), quoting from People v. Carter, 41 Ill.App.3d 425, 429, 354 N.E.2d 482, 485 (1976) (defendant received ineffective assistance of counsel where, in classic “duel of credibility” between defendant and prosecution's main witness, defense counsel's asking the jury to believe the prosecution's main witness “a hundred percent” was “tantamount to an admission of his client's guilt,” and “abdicated his client's position”).
There could be no “reasoned tactical or strategic judgment” for arguing, in contradiction to the main theory defense, that the police were not lying in this case. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). Contrast Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 511-512 (1998) (concession that defendant was at apartment to buy drugs was reasoned tactic where charge was possession with intent to distribute and it was “utterly implausible for defense counsel to argue ... that the defendant, who was in possession of a set of keys to the apartment and who was observed partially dressed and running from a bedroom in which his identification was later found, was merely an innocent visitor waiting for the true occupant of the apartment to arrive”); Commonwealth v. Munera, 31 Mass. App. Ct. at 388-389 (concession of possession of drugs found in defendant's shirt pocket did not “denude[] him of a defense” where concession of smaller quantity for personal use avoided a credibility contest between defendant and arresting officers and took advantage of Commonwealth's failure to perform qualitative analysis connecting drugs in the pocket to larger quantity found in apartment).
“This conduct was behavior which falls 'measurably below that which might be expected form an ordinary fallible lawyer' .... [and] likely deprived the defendant of an otherwise available, substantial ground of defence.'” Commonwealth v. Street, 388 Mass. at 287-288, quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). While it is usually not unreasonable for defense counsel to avoid accusing the police of perjury, where the entirety of the defense relied upon doing so, a better summation “might have accomplished something material for the defense.” Commonwealth v. Adams, 374 Mass. 722, 727 (1978), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). See also Commonwealth v. Street, 388 Mass. at 288. Compare Commonwealth v. Farley, 432 Mass. 153, 156-157 (2000) (where trial counsel put forth defense and then failed to develop it in any way, and in summation “did not marshal the evidence favorable to the defendant's defense in an effort to create a reasonable doubt”, he “effectively left the defendant 'denuded of a defense'” and thereby deprived the defendant of the effective assistance of counsel). The defendant should be granted a new trial.
IV. The Trial Court Deprived The Defendant Of His Constitutional Right To Present His Theory Of Defense Where It Refused To Order The Commonwealth To Disclose The Identity Of Its Confidential Informant
Prior to trial, the defendant sought disclosure of the identity of “CI-1”, the confidential informant named in the affidavit in support of the search warrant. Although the judge ultimately held a hearing at which the police denied that Joseph Ryan had been involved in this case, the judge refused to require disclosure of the informant's identity, and indeed, the court did not even require such disclosure in camera. Based on the officers' testimony, the judge found that Ryan was not the informant. Where the defendant presented a defense that Ryan planted the drugs in his apartment immediately prior to the execution of the search warrant in order to set him up, it was crucial to establish whether Ryan in fact was involved in this case, and in particular, whether he was the confidential informant. The need for disclosure was especially critical where the defense alleged that the police had directed Ryan to plant the drugs. By simply accepting the officers' denials of Ryan's involvement without question when there was a readily available way of verifying the officers' testimony-i.e., by requiring disclosure of the name of the confidential informant-the judge deprived the defendant of his constitutional right to develop and present his defense. The error deprived the defendant of a fair trial and entitles him to a new trial.
Appellate courts in this Commonwealth have recognized a privilege to not disclose the identity of a government informant. Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981); Commonwealth v. Ramirez, 49 Mass. App. Ct. 257, 267 (2000); Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989). That privilege is not absolute, however, and must yield “'[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused....'“ Commonwealth v. Nelson, 26 Mass. App. Ct. at 797, quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957). In determining whether to order the disclosure of an informant's identity, the trial court must balance “'the public interest in protecting the flow of information against the individual's right to prepare his defense.'“ Id., quoting Roviaro v. United States, 353 U.S. at 62. Withholding relevant evidence from the defense may impair the defendant's right to present a full defense under the Sixth Amendment to the Constitution of the United States and art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Carroll, 439 Mass. 547, 551-552 (2003); Commonwealth v. Dagenais, 437 Mass. 832, 839 (2002). See also Washington v. Texas, 388 U.S. 14, 19 (1967). Accord Taylor v. Illinois, 484 U.S. at 408-409. Where, for example, the confidential informant was a percipient witness to the crimes charged and could be expected to give material evidence at trial, the privilege must yield. See Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 33-34, 36 (2002).
Where the defense has raised an issue as to the identity of the informant, that issue may ordinarily “be resolved by the judge conducting a preliminary hearing at which the affiant testifies but without revealing the informant's identity. Further, if it appears necessary, the judge may hold an in camera hearing in which he questions the affiant further and, if he deems it appropriate, the informant himself.” Commonwealth v. Douzanis, 384 Mass. at 442.
In this case, at the August 11, 1999 hearing on the motion to suppress, counsel for the defendant attempted to establish that Ryan was the confidential informant named in the affidavit. However, Detectives Wotton and Oliviera both testified that they did not know Ryan at the time of the execution of the warrant. In fact, Wotton did not know him even at the time of the hearing. [08/11/99, 98-99, 147]. The officers therefore maintained that Ryan was not and could not have been the confidential informant. [08/11/99, 97; 03/02/2000, 3-7].
After the August 11 hearing, the defendant's trial counsel learned that officers from the New Bedford Police Department had arrested Ryan. Counsel continued to allege that “Mr. Ryan in fact was working with the New Bedford Police Department in terms of setting up [the defendant.]” [03/02/2000, 4]. Counsel further stated “that we're not necessarily getting straight information” from the police and that he believed that the police knew Ryan at the time of the defendant's arrest. [03/02/2000, 5-6]. The judge initially suggested that the Commonwealth disclose the informant's identity to the court in camera but ultimately agreed to a hearing at which the officers would simply state whether Ryan was the informant. [03/02/2000, 5-7]. At the judge's suggestion, the defendant submitted a motion requesting further informant and discovery materials and to re-open the motion to suppress hearing. Attached to that motion and referenced therein were reports showing that in July of 1999, the police arrested one Peter Boswell in front of Ryan's home. A report written by Detective Oliveira described Ryan's home as a “known drug house.” [R. App. 50]. Oliveira also authored a later police report with regard to Joseph Ryan's arrest on October 29, 1999 stating that “[w]e were very familiar with Joseph Ryan and his pick up truck since we received information from numerous informants regarding him dealing cocaine.” [R. App. 50].
At the hearing on the motion, Detectives Oliveira and Wotton both testified that they were not familiar with Ryan before the warrants issued in this case, and that they arrested Ryan based on information that Geraldine Charros provided in her testimony at the October 14, 1999 suppression hearing. [05/30/2001, 5, 6, 9, 11, 13-14, 16, 19-20, 32]. Wotton also testified that he would not have recognized Joe Ryan either on the day of the defendant's arrest or on the day of the hearing, since he had only read the report from the Boswell arrest. [05/30/2001, 32-35].
While the judge credited the officers' testimony in denying the motion, there is nevertheless substantial reason to doubt their candor. As noted above, Oliviera testified that he arrested Ryan based on information gleaned from Geraldine's testimony on October 14, 1999, yet in his report on the Boswell arrest in July of 1999, he describes Ryan's house as a known drug house.
The defendant challenged the candor of the officers, and indeed, the entire defense rested on the contention that the officers lied about Ryan. The officers denied Ryan's involvement in this case, and the judge accepted their denials without question. In doing so, the court simply avoided the issue, refusing to look at evidence that either would have confirmed or refuted the officers' testimony. At the very least, the defendant was entitled to an in camera hearing to determine the identity of the confidential informant. See Commonwealth v. Douzanis, 384 Mass. at 442; Commonwealth v. Ramirez, 49 Mass. App. Ct. at 267.
By refusing to order such disclosure, the judge effectively deprived the defendant of the means to develop his theory of defense. When pressed to disclose a name, the officers' charade may very well have come to an end, with the officers confirming that Ryan was CI-1. Even if the police provided a different name, the court or the parties would at least have some ability to verify or refute the accuracy of that information. See Id.; Commonwealth v. Ramirez, 49 Mass. App. Ct. at 267.
At issue in this case is “the Government's right to withhold the identity of an informer who [may have] helped to set up the commission of the crime”. Roviaro v. United States, 353 U.S. at 61-62. Where the evidence sought went directly to the defendant's guilt or innocence, see Commonwealth v. Youngworth, 55 Mass. App. Ct. 32 n.4, where the issue in both the defendant's motion and at trial was the credibility of the officers, and where the judge resolved the credibility issue without considering any evidence beyond the officers' testimony, the judge's decision was fatally flawed. The trial court violated his constitutional rights, and he is entitled to a new trial.
V. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that the judgment be reversed and that he be granted a new trial.
Respectfully submitted,
Michael Charros
By his attorney,
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
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