Com. v. D'Amour

• Decision Date: 27 January 1999
• Citation: 704 N.E.2d 1166,428 Mass. 725
• Parties: COMMONWEALTH v. Suzanne D'AMOUR (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1166

704 N.E.2d 1166

428 Mass. 725

COMMONWEALTH v. Suzanne D'AMOUR (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Nov. 5, 1998.

Decided Jan. 27, 1999.

Wendy H. Sibbison, Greenfield, for the defendant.

Judith Ellen Pietras, Assistant District Attorney (David S. Ross, Assistant District Attorney, with her) for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, & IRELAND, JJ.

ABRAMS, J.

We allowed the defendant's application for direct appellate review of her convictions of perjury (two indictments) and attempted perjury (one indictment). A single justice of this court reserved and reported the correctness of the denial of the defendant's motion to dismiss the conspiracy indictment against her on grounds of double jeopardy. The cases were consolidated. We affirm the convictions of perjury and attempted perjury. We conclude that the indictment charging conspiracy to murder should be dismissed on double jeopardy grounds.

I. Facts and procedural history. The basic facts, which we will supplement as necessary in our discussion below, are as follows. On March 6, 1993, the body of Robert D'Amour was discovered in his home in South Hadley. The cause of death was multiple gunshot wounds. An investigation, conducted by the crime prevention and control unit of the Massachusetts State police (CPAC), ensued. The police immediately obtained a search warrant for the home shared by the victim and the defendant, the victim's wife. Evidence uncovered during this search, including a letter from the defendant to one Alex Rankins, led the police to identify the defendant and Rankins as suspects. ² After investigation, the prosecutor believed that the defendant and Rankins murdered the victim to procure insurance proceeds. Hoping to secure incriminating discussions between the two suspects, the prosecutor secured an authorization to wiretap several of the defendant's telephones. The prosecutor also subpoenaed the defendant and Rankins to testify before a grand jury investigating the murder. When the defendant testified before the grand jury pursuant to her subpoena, she made two false statements regarding her communications with Rankins. She had not been informed that she was a target of the investigation.

The defendant was indicted for murder, conspiracy to commit murder, perjury, and attempting to procure perjury. A petit jury acquitted the defendant of murder, tried on the theory that she hired Rankins to kill her husband. The jury convicted her of two counts of perjury and one count of attempting to incite perjury.

Following her acquittal on the murder charge, the defendant moved to dismiss the conspiracy indictment on double jeopardy grounds. The judge denied her motion. Pursuant to G.L. c. 211, § 3, the defendant then filed a petition with a single justice of this court seeking an interlocutory appeal of the denial of her motion to dismiss. See Jones v. Commonwealth, 379 Mass. 607, 615, 400 N.E.2d 242 (1980). The single justice reserved and reported the petition to the full bench. The direct and interlocutory appeals were consolidated.

The defendant makes several arguments on direct appeal. She challenges: (1) the search and seizure of a letter from her to Rankins; (2) the evidence gathered through the wiretap; (3) the lack of a target warning prior to her grand jury testimony; (4) the evidence regarding the materiality of her perjury and the jury instruction on materiality; and (5) her sentence. We hold that there was no reversible error. The defendant's argument on interlocutory appeal is that the conspiracy indictment places her in double jeopardy. We agree.

II. Search warrant. The first of the defendant's challenges concerns the motion judge's refusal to suppress a letter. She asserts that the warrant authorizing the search of her home lacked probable cause and was overbroad. The defendant alternatively argues that the seized letter was not within the scope of the warrant and was not in plain view. On the view we take of this case, we need not determine whether the challenged provision of the warrant was proper. We conclude that unchallenged portions of the warrant supported the scope of the search and that the letter was in plain view.

A State trooper applied for a search warrant of the home the defendant shared with the victim. In his affidavit in support of his application, the trooper stated that, although guns were found in the same room as the victim, no gun was found immediately around the body and that there was no sign of a forced entry. In addition to the guns in the living room, there were guns in a cabinet in the basement. The trooper concluded that the victim had been murdered and that it was "possible that the assailant was known to the victim." He requested authorization to seize, among other things, "firearms and ammunition," "writings relating to the ownership of firearms," and "writings containing the names of persons known to the deceased such as address books, diaries and appointment books or calendars." ³ A warrant issued. During the course of the search, an officer discovered some ammunition and a letter from the defendant to the victim regarding the ownership of a gun found near the victim. Along with these items, the officer found a letter from "Susie" to "My dearest Alex" professing love for "Alex" and hatred for the victim. The second letter led the police and the prosecutor to suspect the defendant was involved in the murder of her husband and to apply for the wiretap that supported the perjury convictions. The motion judge denied the defendant's motion to suppress the letter.

1. Sufficiency of the warrant. The defendant challenges the provision authorizing seizure of "writings containing the names of persons known to the deceased." She argues that the seizure of the letter was not justified by this provision because the application failed to establish probable cause that the writings sought were related to the criminal activity under investigation. Commonwealth v. Cefalo, 381 Mass. 319, 328, 409 N.E.2d 719 (1980). The defendant urges that a warrant for all papers identifying persons known to the victim invited a general, unreasonable rummaging in and reading of her private papers. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In addition to Federal grounds, the defendant bases her argument on ART. 14 OF THE MASSACHUSETTS DECLARATION OF RIGHTS⁴ and G.L. c. 276, § 1, which, according to the defendant, nowhere authorizes a search for "mere evidence."

The motion judge determined that the trooper's application for the search warrant set forth sufficient information to establish probable cause to search for "writings containing the names of persons known to the deceased." Noting that a murder had occurred and that there were no signs of a forced entry, the judge credited the trooper's belief that it was "possible" that the victim knew his assailant. The judge also held that the common law allowed for the seizure of "mere evidence," and thus permitted a search for writings. Matter of Lavigne, 418 Mass. 831, 835, 641 N.E.2d 1328 (1994).

We begin with G.L. c. 276, § 1. Broadly speaking, this statute permits a magistrate to issue a warrant authorizing the search for specific property, including fruits, instrumentalities, and "property or articles ... which ... have been used, as a means or instrumentality of committing a crime" ⁵ There is merit to the defendant's argument that "writings containing the names of persons known to the deceased" falls within none of these categories. The Commonwealth concedes as much, arguing instead that the seizure of the evidence is permitted by the common law. ⁶ However, we need not decide whether seizure of "writings containing the names of persons known to the deceased" is permitted by the text of G.L. c. 276, § 1, or by the common law. The warrant authorized the search for "ammunition" and for "writings relating to the ownership of firearms." The inclusion of these items in the warrant is not challenged by the defendant. Even if the challenged provision of the warrant were improper, the remaining unchallenged provisions permit the seizure of the letter. ⁷ See Commonwealth v. Lett, 393 Mass. 141, 144-145, 470 N.E.2d 110 (1984) (holding that infirmity of part of a warrant does not require suppression of anything described in valid portions or lawfully seized pursuant thereto). See also United States v. Morris, 977 F.2d 677, 682 (1st Cir.), cert. denied, 507 U.S. 988, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993); United States v. Diaz, 841 F.2d 1, 4 (1st Cir.1988); United States v. Riggs, 690 F.2d 298, 300-301 (1st Cir.1982).

2. Plain view doctrine. The objects seized pursuant to the unchallenged warrant provisions must fall within the scope of these provisions or a warrant exception. The letter is not within the scope of the unchallenged provisions. ⁸ It is clearly not ammunition, nor does it discuss the ownership of firearms. However, we agree with the motion judge that the letter falls within a warrant exception. It was in plain view.

"Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Commonwealth v. Santana, 420 Mass. 205, 211, 649 N.E.2d 717 (1995), and cases cited. Our cases also have required that the police come across the item inadvertently. ⁹ Id. In the case of contraband and fruits and instrumentalities of crime, the nexus to criminal activity is obvious. Commonwealth v. Accaputo, 380 Mass. 435, 447, 404 N.E.2d 1204 (1980). "Mere evidence," on the other hand, may be seized only if the officers recognize it as plausibly related to criminal activity of which they already were aware. Id. Commonwealth v. Bond, 375 Mass. 201, 206, 375...