Commonwealth v. Brian Keith Cavitt (September 21st, 2011)
Docket SJC-10436
Massachusetts Supreme Judicial Court
Facts: Defendant robbed a Western Union in Springfield. A manager and an employee at the supermarket chased the defendant on foot. There was a brief scuffle, but the defendant got away and the store employees did not continue the chase. He entered a house and stabbed the resident who tried to get him to leave, and stabbed another resident who was in bed due to a stroke, then he set fire to the residence. He had described these events to the neighbor’s boyfriend who he had initially tried to persuade to do the robbery with him.
Issue #1: Was there probable cause for the police to get a search warrant for LaVoice’s apartment (where the defendant had been staying)?
Yes. The search warrant was supported by probable cause, and the information did not come from an unknown source, but rather by a citizen who presented herself to the police and was identifiable. The defendant also alleges the his counsel was ineffective because he failed to pursue the suppression of the sneakers based on his contention that there was no probably cause to search for sneakers because the affidavit only mentioned a robbery and possible car jacking, not murders or sneakers or any footwear impressions at the scene of the crime. However, the affidavit sets forth probable cause to search the apartment for items of clothing of the defendant, therefore the search and seizure of the sneakers is within the scope of the search warrant. The discovery of incriminating evidence in the bloody sneakers did not negate the validity of the original search. Since the defendant’s claim is rejected, even if his counsel had pursued the suppression of the evidence, the defense council would not have been successful. As for the veracity of the citizen informant, the informant had wished to remain anonymous because of safety concerns. However, she was identifiable given the fact that she had contacted the police officers, then met in person, and provided the address of the apartment.
Issue #2: Did the judge err in not allowing the motion to suppress the photographic identification by one of the witnesses?
No. The defendant has the burden of proving by a preponderance of the evidence that the procedures used by the police led to the mistaken identification. Here, Vargara, a witness, got up from his booth where he was being shown photos, and looked over to another witness’ booth, where he identified the suspect as the person he had seen on the street that day. The court says that this identification was not the product of unnecessarily suggestive police procedures.
Issue #3: Was the DNA evidence relating to the gold necklace erroneously included into evidence, without the proper statistical explanation?
No. There was testimony that said that there was a mixture of two people’s DNA on the necklace, and that they could neither exclude not include the defendant based on those results. The admittance of the DNA evidence from the necklace into evidence was inconsequential, and did not create a substantial likelihood of a miscarriage of justice.
Conclusion: The court affirms the defendant’s convictions and declines to reduce the degree of guilt or order a new trial.
Prepared by KP
