Com. v. Chappee

• Decision Date: 12 May 1986
• Citation: 397 Mass. 508,492 N.E.2d 719
• Parties: COMMONWEALTH v. Douglas D. CHAPPEE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 719

492 N.E.2d 719

397 Mass. 508

COMMONWEALTH v. Douglas D. CHAPPEE.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 4, 1986.

Decided May 12, 1986.

Kimberly Homan, Boston, for defendant.

Max W. Beck, Asst. Dist. Atty., for Com.

Before WILKINS, LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

After a jury-waived trial, the defendant was found guilty of trafficking in cocaine, G.L. c. 94C, § 32E (b )(2) (1984 ed.), and possession of cocaine with intent to distribute. G.L. c. 94C, § 32A(a ) (1984 ed.). The judge sentenced the defendant to from five to ten years at the Massachusetts Correctional Institution, Cedar Junction, imposed a fine of $15,000 on the trafficking conviction and, with the defendant's assent, ordered the indictment for possession with intent to distribute filed. The defendant appealed and we transferred the case to this court on our own motion.

The defendant challenges his convictions on the following grounds: (1) The denial of his pretrial motion to suppress was error. (2) The judge erroneously precluded his expert witnesses from testifying. (3) The evidence at trial was insufficient to warrant a finding beyond a reasonable doubt that the substance in which he allegedly trafficked was a controlled substance and therefore the judge erred in denying the defendant's motion for required findings of not guilty. (4) "Trafficking" is an essential element of the crime described in G.L. c. 94C, § 32E(b )(2), and trafficking was neither clearly alleged in the indictment nor proved at trial. (5) The defendant was denied the effective assistance of counsel. (6) The convictions under both G.L. c. 94C, §§ 32A(a ) and 32E(b )(2), are duplicitous. We reject all the defendant's arguments pertaining to the trafficking indictment and affirm that conviction. In the circumstances, we remand this case to the Superior Court for an order dismissing the indictment for the lesser included offense of possession with intent to distribute, even though that indictment had been filed with the defendant's consent.

Before trial, the defendant moved to suppress the physical evidence seized from his home pursuant to a warrant issued on the basis of an affidavit executed by Trooper John B. O'Connor of the State police. The only ground set forth in the motion on which the defendant relies on appeal is that it is apparent from the affidavit itself that the information in the affidavit that was critical to the issuance of the search warrant was unlawfully obtained. The defendant argues that any evidence traceable to unlawfully obtained information must be suppressed. See Commonwealth v. D'Onofrio, 396 Mass. 711, 713, 488 N.E.2d 410 (1986).

The affidavit contained the following information. In June, 1983, Trooper O'Connor and Detective Edward Hayes of the North Reading police department initiated a narcotics investigation in North Reading. An undisclosed informant told them that the defendant was a dealer of large quantities of cocaine in the area. As a part of the investigation, the informant met with the defendant and received from him a small quantity of cocaine as a sample of a substance available for future purchase. The substance was delivered to the police, was analyzed, and was determined to be forty per cent pure cocaine.

According to the affidavit, on Tuesday morning, July 19, 1983, Trooper O'Connor observed the placing of three trash bags on the edge of the macadam on Kingston Street in front of the driveway of the defendant's premises. The officer had previously learned that the strip of land on which the trash bags were placed was owned by the town. Trooper O'Connor seized the bags without a warrant, searched them, and found the following: a letter addressed to the defendant; seven plastic "baggies" containing a white, powdery substance, later determined to be eighty per cent pure cocaine; one hypodermic needle and syringe; and a quantity of marihuana.

On the basis of that affidavit, Trooper O'Connor procured a warrant to search the defendant's home for controlled substances and other materials relating to the possession and distribution of controlled substances. The judge who heard the motion to suppress found that, in the search conducted pursuant to the warrant, police officers discovered and seized 139.4 grams of a white, powdery substance, later analyzed and found to be seventy-two per cent pure cocaine, ledger paper containing notations apparently referring to drug transactions, three bottles of Inositol, a plastic bag containing two spoons, and a bag containing plastic bags wrapped in newspaper. After seizing the items, the officers arrested the defendant. The judge also found that the trash bags that furnished the information on which the search warrant was based had been placed on town property. He concluded that the defendant did not have a justifiable expectation of privacy in the trash bags and that therefore the "search" of the bags did not violate the defendant's Fourth Amendment rights. ¹ He denied the motion to suppress.

Unless the defendant had a reasonable expectation of privacy in the trash bags when the officers opened them and observed their contents, there was no "search" within the meaning of the Fourth Amendment. Commonwealth v. D'Onofrio, supra at 714, 488 N.E.2d 410. The burden of proof is on the defendant. Id. at 715, 488 N.E.2d 410. The "correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Id. at 718, 488 N.E.2d 410, quoting Oliver v. United States, 466 U.S. 170, 182-183, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984). The judge made no finding with respect to whether the defendant in fact had an expectation of privacy in the trash bags, but he concluded that any such expectancy would not be reasonable. The judge's conclusion is subject to our review. Commonwealth v. Cadoret, 388 Mass. 148, 150, 445 N.E.2d 1050 (1983).

There is authority for holding that the defendant had a reasonable expectation of privacy in the trash bags, and that opening and searching them violated his Fourth Amendment rights. See People v. Krivda, 5 Cal.3d 357, 365, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), aff'd, 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457, cert. denied, 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145 (1973). However, the overwhelming majority of courts that have considered the issue support the conclusion that any expectation of privacy that the defendant might have had was not reasonable. See, e.g., United States v. Michaels, 726 F.2d 1307, 1312-1313 (8th Cir.), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984), and cases cited; United States v. Kramer, 711 F.2d 789, 793 (7th Cir.), cert. denied, 464 U.S. 962, 104 S.Ct. 397, 78 L.Ed.2d 339 (1983); United States v. Terry, 702 F.2d 299, 309 (2d Cir.), cert denied sub nom. Williams v. United States, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); Smith v. State, 510 P.2d 793, 797-798 (Alaska 1973); State v. Fassler, 108 Ariz. 586, 592-593, 503 P.2d 807 (1972). Although the fact that the trash bags were placed on public property may not be controlling, it is a significant factor to be considered in determining whether the defendant had a reasonable expectation of privacy. Commonwealth v. Cadoret, supra, and cases cited. The defendant retained no control over other persons' access to his discarded waste and, in fact, his behavior demonstrated his intention to abandon that material to strangers. The motion to suppress was correctly denied.

We turn to the remaining issues on appeal, and we set forth the evidence at trial and certain events relevant thereto. A certificate of analysis concerning the 139.4 grams of white powder contained in the three plastic bags seized from the defendant's home, signed by Kenneth W. Gagnon, a chemist with the Department of Public Safety, was introduced in evidence. The certificate stated that the powder "was found to contain 72% cocaine, a derivative of coca leaves and a Class B Controlled Substance as defined under Chapter 94C, Section 31 of the General Laws." Gagnon testified for the Commonwealth. He stated his qualifications as a chemist and he confirmed that he had analyzed the substance taken from the defendant's home and had reduced his findings to writing pursuant to G.L. c. 147, § 4D (1984 ed.).

On cross-examination conducted by Mr. Theodore Simon representing the defendant, Gagnon testified concerning the tests that he conducted. He testified also that Cocaine L is an isomer contained in the coca leaf and its derivative, ² and that Cocaine L is the optical isomer of Cocaine D. Gagnon agreed that he was "not sufficiently familiar to distinguish Cocaine L from Cocaine D." When asked, "[A]re you familiar that Cocaine D is synthetically produced," Gagnon responded, "I am familiar that it is potentially possible to produce it, yes." He also gave testimony concerning his awareness of a "potential for there being six other" isomers of cocaine. Gagnon refused to agree that "it is only Cocaine L which is contained in the coca plant" but he did agree that Cocaine L "is much more pharmacologically active per amount than the D isomer." On redirect examination, Gagnon testified that the tests he performed in this case are generally accepted in the scientific community as appropriate ways to test for "cocaine," and on recross-examination he said that within the scientific community there is a division of opinion on whether those tests can distinguish between Cocaine L and Cocaine D.

Called by the Commonwealth, Trooper John R. Sprague of the State police testified to his extensive training and experience as a narcotics investigator. According to his testimony, Trooper Sprague participated in the search of the defendant's home and he seized from the defendant's bedroom the white powder that was the subject of the...