Commonwealth v. Fred C. Velez, July 16, 2010
77 Mass. App. Ct. 270
The defendant was indicted on a charge of trafficking in cocaine. After a hearing, a judge denied the defendant's motion to suppress evidence and seeking disclosure of the identity of a confidential informant. Trial was jury-waived before a different judge, who found the defendant guilty. The defendant appealed, arguing that (1) his motion to suppress evidence obtained by searches of his automobile and apartment was erroneously denied and there was no probable cause for his warrantless arrest; (2) the identity of the informant should have been disclosed; (3) he received ineffective assistance of counsel; (4) the judge improperly questioned one of the Commonwealth's witnesses; and (5) cumulative errors require reversal. The Appeals Court affirmed.
Facts
A confidential informant, “Mary,” tipped off Trooper Racki to the defendant. She had provided information to police in the past that led to an arrest and seizure of drugs. Mary, while under police supervision, made 3 controlled buys of cocaine at the defendant's apartment. On September 1, 2005, Trooper Racki secured a search warrant for the apartment. In anticipation of executing the warrant, he and two fellow troopers took positions near the apartment. Trooper Fallon stopped the defendant's car a block and a half away from the apartment. He and Trooper Holland approached the car. Fallon stated that he “smelled weed in the car.” Trooper Holland, an experienced narcotics officer trained in the identification of marijuana by sight and smell, detected an odor of burnt marijuana from the car. Opening the door, he observed marijuana roaches and a clear plastic bag containing marijuana. A further search of the car produced more clear plastic bags with a substance Holland believed to be cocaine. A later search of the apartment produced narcotics, hypodermic needles, cash, personal papers, and other items.
Search of the defendant’s apartment
The defendant argued that the search warrant was not support by probable cause. The Appeals Court held that the descriptions of the three buys, which all occurred at the residence that was the target of the search warrant, as well as the information provided by Mary, furnished probable cause to issue the search warrant for the defendant‟s apartment.
Stop and arrest of the defendant
The defendant correctly asserted that the search warrant itself did not give the troopers authority to seize him one and one-half blocks from his apartment. The Appeals Court held that the troopers' knowledge of the controlled buys, the last of which occurred within 72 hours of the stop, provided probable cause to believe that the defendant had committed a felony as proscribed by G.L. c. 94C, § 32E(b). Both the initial stop and subsequent warrantless arrest were valid.
Warrantless search of the defendant’s car
The troopers did not have a warrant to search the car. Under “the automobile exception to the warrant requirement, the search of the [car] was justified as long as the [troopers] had probable cause to believe that there was contraband in the car.” Commonwealth v. Garden, 451 Mass. 43, 47 (2008). Trooper Holland was trained in marijuana identification and detected the odor of burnt marijuana in the car. The Appeals Court held that his alone furnished probable cause to believe that there was marijuana in the car and thus the search was justified.
The 3 controlled buys detailed in the affidavit supplied probable cause for the search warrant; the stop and arrest was supported by probable cause to believe the defendant had engaged in cocaine distribution; and the search of the car was proper under the automobile exception. The Appeals Court held that the motion judge properly denied the defendant‟s motions to suppress evidence.
Confidential informant
The defendant argued that the identity of the informant should have been disclosed. The Appeals Court held that Mary acted only as a tipster, not as an active participant in the crimes charged, and thus disclosure of her identity was not required.
Ineffective assistance of counsel
The defendant argued that he received ineffective assistance of counsel based upon the relaxation of the adversarial process. At trial, the defense counsel pursued a strategy of “jury nullification” (though the case was tried before a judge), conceded liability for some of the crimes charged, and used the trial in an effort to seek leniency in sentencing. This argument was brought under dicta from United States v. Cronic, 466 U.S. 648 (1984), in which the US Supreme Court identified 3 classes of ineffectiveness in which no showing of prejudice is required. The 2nd category establishes prejudice per se when defense counsel fails to subject the prosecution's case to meaningful adversary testing; however, this applies only when the attorney‟s failure to test the government's case is complete.
The Appeals Court held that while some of the defense counsel's remarks were improper, the defense counsel competently argued and preserved for review the issues relating to the search of the apartment, the stop and arrest, and the search of the car. The lack of adversary testing was therefore not complete.
The judge’s questioning
During trial, the judge questioned a Commonwealth witness, the drug chemist who conducted tests on the substances admitted in this case. The Appeals Court held that the judge's questions, which clarified the procedures employed by the chemist, were proper and did not alter the Commonwealth's burden.
The Appeals Court affirmed the judgment.
- Prepared by AYK
