Com. v. Dagraca

• Citation: 854 N.E.2d 1249,447 Mass. 546
• Parties: COMMONWEALTH v. Gregory DAGRACA.
• Decision Date: 17 October 2006
• Court: United States State Supreme Judicial Court of Massachusetts

854 N.E.2d 1249

447 Mass. 546

COMMONWEALTH v. Gregory DAGRACA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued September 7, 2006.

Decided October 17, 2006.

David Keighley, Fairhaven, for the defendant.

Miriam S. Pappas, Assistant District Attorney (Loretta Smith, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

The defendant, Gregory Dagraca, was indicted for trafficking in cocaine over one hundred grams, possessing marijuana with intent to distribute, and committing each offense in a school zone. He moved to suppress statements he had made to the police, claiming that he had not been given a complete set of Miranda warnings.¹ See Miranda v. Arizona, 384 U.S. 436, 444, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A judge in the Superior Court denied the motion, and the Commonwealth introduced the statements in evidence at trial. The jury convicted the defendant of the lesser included offenses of trafficking in cocaine over fourteen grams and possessing marijuana; the school zone charges were nolle prossed.²

In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the convictions. See Commonwealth v. DaGraca, 65 Mass.App.Ct. 1109, 840 N.E.2d 66 (2005). The court concluded that the Miranda warnings given to the defendant were incomplete and that accordingly his statements should not have been admitted in evidence. It further concluded that the error was harmless beyond a reasonable doubt "in view of the other overwhelming evidence of the defendant's guilt presented to the jury." We granted the defendant's application for further appellate review. We agree with the Appeals Court that, because the police failed to give the defendant all of the Miranda warnings, his statements to the police should not have been admitted. We conclude, however, that the error was not harmless beyond a reasonable doubt. We therefore reverse the defendant's convictions.

1. Background. (a) Commonwealth's case at trial. In connection with a narcotics investigation conducted in April, 2002, Detective Linda Coughlin of the Lowell police department surveilled a house at 50 Hawthorne Street, in Lowell. Of the approximately six times that she surveilled the house, she saw the defendant come and go about three or four times. Thereafter, Detective Coghlin applied for and obtained a warrant to search the property.

On April 28, 2002, the day the warrant was executed, Detective Coughlin; her supervisor, Sergeant James Trudel; and several other officers conducted a "pre-raid surveillance" of the house. Sergeant Trudel observed two people leave the house in a vehicle, which Detective Coughlin then followed for a short time. Sergeant Trudel then drove past the house a couple of times in an unmarked car, the second time noticing the defendant standing on the front porch. From the porch, the defendant called out, "Why are you following my friends?" Sergeant Trudel, dressed in plain clothes, got out of his car and, while walking toward the house, displayed a police badge and said, "Lowell Police. I'd like to talk to you for a minute." Once Sergeant Trudel reached the porch, the defendant began pushing and wrestling with him, trying to get to the door. As the two were struggling, Detective Coughlin returned with another officer who assisted Sergeant Trudel in handcuffing the defendant.

On the porch, the officers pat frisked the defendant, discovering marijuana and $11,000 in cash in a pocket.³ In the defendant's wallet was $466 in cash and a piece of paper listing fifty-nine names and corresponding numbers, which Detective Coughlin characterized as consistent with a drug ledger. Also in his wallet were receipts from Foxwoods Casino in Connecticut showing that the defendant had won a total of $12,000 within the previous two weeks.⁴

After informing the defendant that they had a warrant to search the premises, the officers escorted him into the house and seated him in the living room. Sergeant Trudel testified that he informed the defendant of the Miranda warnings. Detective Coughlin then asked who lived in the house, to which the defendant replied that he did, but that someone else owned it. Sergeant Trudel also testified that the defendant said "he was staying there, but he didn't own the house."

Approximately seventy-five to eighty per cent of the house was under renovation: although there was some furniture in the living room, the floors were "down to the studs"; the first-floor bathroom, while it contained a basin and toilet, was "totally gutted out"; the plaster in the hallways going up to the second floor had been removed; and of the three bedrooms on the second floor, two were gutted and one was intact. Sergeant Trudel testified that the defendant told him that he had participated in the renovation.

The kitchen, while not completely finished, had new cabinets, appliances, and flooring; a refrigerator; a sink; a kitchen table and a second table; and an island. Detective Coughlin found on the kitchen table a bag containing 15.34 grams of cocaine. Inside an open drawer of the second table, Detective Coughlin discovered four bags of cocaine, opining that each bag was packaged for sale as a twenty or forty-dollar bag; only one bag was tested for drugs and was found to contain .44 grams of cocaine. From the same drawer, Detective Coughlin recovered a bag containing marijuana and a digital scale; she suggested the scale could be used to weigh cocaine and heroin.⁵ In the kitchen Detective Coughlin also found other items that she testified were commonly used in packaging drugs: a small metal cup, a spoon with a wooden handle, and plastic bags with the corners cut off.

The one bedroom on the second floor that was not gutted contained a bed, a desk, papers, photographs of the defendant on the wall, and men's clothes and shoes in the closet. In the closet the police found a jacket, whose pockets held bags containing marijuana and 94.18 grams of cocaine.⁶ The Commonwealth presented no evidence regarding the sizes of the clothes or shoes. The police also testified that they found in the closet a contrivance commonly used to conceal drugs — a can with a false bottom — which contained six "beat bags," i.e., fake narcotics designed to "beat the individual[s] out of the money and they don't get the real drug." In the same bedroom, the police found Inositol, a compound used to cut cocaine; small plastic bags used for packaging marijuana or cocaine; and sixty dollars in cash. They also found an address book labeled, "Address book for Gregory."

The police discovered some of the defendant's mail at the house, but it was addressed to the defendant at an address in Medford. A cellular telephone and pager were also recovered, but while Detective Coughlin testified that such items can be used to facilitate narcotic sales, the items were not specifically linked to the defendant. Finally, the police seized from the house a lease agreement dated April 15, 2002, through which the defendant had agreed to rent the house from Joseph F. Ignatowicz for one year, to commence on April 15, 2002.

(b) The defendant's case. The defendant's case, presented through his own testimony and that of Ignatowicz and the defendant's girl friend, consisted of the following facts. Ignatowicz, who owned the house as an investment but did not live there, engaged a few of his friends to renovate the house before and during April of 2002; the defendant denied participating in the renovation. The kitchen included an old refrigerator but no working stove (the workers kept lunches in the refrigerator); the bathroom, while gutted, had a toilet and working shower; and the furniture in the living room belonged to Ignatowicz. Ignatowicz kept a key under the doormat for people who were working on the house to gain access to it.

The defendant had agreed with Ignatowicz to move in when the renovations were completed, ideally May 1, but the renovations were taking longer than expected. Thus, while the defendant had visited the house on a few occasions to review aspects of the renovations with Ignatowicz, and had delivered some of his belongings to the house — he had left on the first floor of the house two large boxes and a bag, all of which were "wrapped up" — he had not yet moved in. In April of 2002, the defendant was living with his girl friend in Medford — the address on the mail found in the Lowell house was the Medford address where the defendant's girl friend lived. Ignatowicz testified that he gave notice to tenants living in the house before April 28 "that they had to move because I intended on renovating the rest of the place and I had another tenant moving in." According to Ignatowicz and the defendant, they executed a lease to commence on April 15 because Ignatowicz had become delinquent on some of his utility bills and so, in order to maintain utility service, they executed the lease so as to put the utilities in the defendant's name.

On April 28, the defendant's girl friend dropped the defendant off at the house to pick up his car, which he had left for the workers to use, and to see what progress was being made on the house. The defendant's account of his altercation with the officers at the house was that, when Sergeant Trudel drove up, the defendant did not know who he was; Sergeant Trudel quickly got out of his car and approached the defendant; the defendant, who was standing near the sidewalk, began walking toward the house to get away from Sergeant Trudel; and Sergeant Trudel grabbed him before identifying himself as a police officer. The defendant denied having attempted to enter the house when Sergeant Trudel approached him.

The defendant was carrying $11,000 because he was planning to purchase a motorcycle that day. In April, 2002, the defendant, who was sometimes employed as an electrical subcontractor, won $12,000 playing...