Com. v. Delrio

• Decision Date: 30 September 1986
• Citation: 22 Mass.App.Ct. 712,497 N.E.2d 1097
• Parties: COMMONWEALTH v. Victor E. DELRIO.
• Court: Appeals Court of Massachusetts

Page 1097

497 N.E.2d 1097

22 Mass.App.Ct. 712

COMMONWEALTH v. Victor E. DELRIO.

Appeals Court of Massachusetts Essex.

Argued April 14, 1986.

Decided Sept. 30, 1986.

Jane Larmon White, Committee for Public Counsel Services, Boston, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for the Com.

Before GRANT, KAPLAN and PERRETTA, JJ.

KAPLAN, Justice.

We are obliged to reverse the conviction of the defendant, Delrio (the case to stand for a new trial), by reason of errors in the denial of the defendant's motion for voir dire regarding an alleged admission by him, the failure to instruct adequately on an issue of identification of the defendant, and the improper handling of a previous incident in which evidence was suppressed as illegally seized. In the course of outlining the substance of the trial, we indicate how these problems arose; then we elaborate upon each.

The Trial. The defendant was indicted and tried for the knowing possession of a class A substance, heroin, with intent to distribute the same (G.L. c. 94C, § 32), also for the unlawful possession without license of a dangerous weapon, a handgun. An Essex County jury found him guilty of the former crime but not guilty of the latter, and the defendant takes his appeal from the judgment of conviction. One Luis Rivera was tried together with the defendant on the like drug charge. The trial judge allowed Rivera's motion for a required finding of not guilty at the close of the Commonwealth's case.

The Commonwealth's case against Delrio ran thus. On January 12, 1984, about 3:30 P.M., a seven-person team of Lynn police officers and State troopers, possessing a search warrant, broke into the third-floor apartment of 76 Hanover Street, Lynn, rented to Isidro and Domingo Coporan. Pushing through a door, covered with a cloth, opening on the front bedroom, officers surprised the Coporans in that room in full swing of using characteristic paraphernalia to cut and bag heroin; ¹ the heroin on hand in the room had a street value of $30,000. The Coporans were brought into the kitchen. ² A minute earlier Luis Rivera had been found in the rear bedroom and he, too, was brought into the kitchen. Officer Raymond D. Richard entered the rear bedroom thinking it had been secured, but on peering into a closet there he saw "two eyes looking at me"--this was the defendant in hiding. The defendant joined the others in the kitchen.

Officer Richard examined a blue suitbag hung inside the closet door. It contained, besides trousers, six bundles (ten bags each) and some loose packets of heroin (total value $1,430); also a loaded semiautomatic handgun. Richard passed the suitbag with contents to Sergeant John LeBrasseur, who took it to the kitchen. LeBrasseur testified that the defendant said something to him in Spanish, which he did not understand; that he asked Rivera in English what the defendant was saying; that Rivera replied in English that the defendant wanted to know what LeBrasseur was doing with his (the defendant's) bag. LeBrasseur said he held up the bag in front of the defendant, and the defendant said, "Me, me." (Bearing on point 1 below: defendant's counsel had applied before trial, and applied again during LeBrasseur's testimony, for a voir dire about the circumstances of this alleged admission which came, be it noted, before the defendant, now in police custody, was given Miranda warnings. The applications were denied.)

At the foot of the bed in the back bedroom was a brown leather bag. One side pocket held foil packets of heroin (worth $10,000), the defendant's passport (in the name of Victor Emilo Delrio), and a wallet with a Venezuelan identification card carrying the defendant's name and photograph. ³

To bolster any direct evidence that the defendant knowingly possessed with intent to distribute some quantity of heroin at 76 Hanover on January 12, 1984, the Commonwealth called Trooper John J. Walsh (not a participant in the raid on January 12) who testified that on January 11, and again on January 12, he made "buys" of heroin in the street from a person whom he identified as the defendant. (Point 2[a]: defendant failed in his attempt to have these alleged sales excluded as too remote from the offenses in suit.) On January 11, according to Walsh, around 3:00 P.M., he and Trooper Paul J. Regan (also unconnected with the raid), in civilian clothes, were in an unmarked cruiser near 138 Franklin Street, three blocks from 76 Hanover. Leaving the car, Walsh approached a man ("Victor") and asked him whether he had any "down" (heroin). The man answered in broken English that he had a bundle for $140. The sale was carried out in the doorway of 138 Franklin. On January 12, at 1:15 P.M., Walsh approached Victor opposite 138 Franklin, and a similar sale, of a bundle for $140, was carried out, this time with the seller dealing from the driver's seat of a car parked nearby. Each incident, from sighting the seller to sale, took only a half minute or so (facts emphasized in Walsh's cross-examination). A few days after January 12, Walsh was shown a picture of Delrio taken after his arrest at the raid. He took the picture to be that of Victor, and at trial identified Delrio as the Victor from whom he had made the buys. ⁴

On its part, the defense called the defendant's girlfriend, Robin Downs. She tendered an alibi for the event of January 11. On that day, she said, she drove with the defendant to her mother's place in Center Ossipee, New Hampshire, and returned with him to Lynn in the evening. She and the defendant spent the night at a motel in Lynn. ⁵

The defendant, picking up the story with his departure from the motel at 6:00 A.M. the following morning, testified (through an interpreter) that, after idling through the morning and early afternoon, he entered the Coporans' apartment a few minutes before the raid. He had come to fetch his bag which contained boxing gear (see note 3) and his passport and Venezuelan identification. Just before taking off with Downs for New Hampshire, he said, he had entrusted the bag with contents to Isidro (whom he had encountered in a car on the street), intending to pick it up later. Thinking the intruders (officers out of uniform) in the Coporans' apartment were thieves, he hid himself in the closet. He denied owning the suitbag (or the gun). He had no connection with the brown or black bag. The officer had taken his wallet from his person. He knew no English. He had not said anything about the suitbag while in the kitchen; Rivera said nothing to him and he said nothing to Rivera or to Sergeant LeBrasseur. He knew the Coporans more or less casually from Santo Domingo and Venezuela. He never sold drugs for the Coporans and did not know what a "runner" was. He did not sell drugs on January 11 or 12.

Evidently attempting to attack the defendant's testimony that he knew the Coporans casually without criminal involvement, ⁶ the Commonwealth on cross-examination of the defendant proceeded to question him about an incident in North Andover on November 22, 1983, at 1:30 A.M. Isidro was driving with the defendant as passenger. Police stopped the car for a traffic violation but, allegedly finding heroin in the car, and seizing it, arrested Isidro and the defendant on charges of knowing possession with intent to distribute. The charge against the defendant was later nol prossed when a judge of the Superior Court held the seizure to be illegal. ⁷ Cross-examining the defendant, the prosecutor repeatedly put it to the defendant that he knew there was heroin in the car; indeed, that the heroin was between his legs. The defendant denied any such knowledge or even an understanding of why he had been arrested; he said he had accepted Isidro's invitation to go out and see Lawrence. (Point 3: defendant's counsel objected to the whole line of questioning and finally moved for a mistrial, all without relief.)

The trial closed on that note. We shall have occasion to refer to the prosecutor's closing argument. ⁸ Defendant's counsel had seasonably requested that the judge give an instruction on the lines of the standard instruction set out in Commonwealth v. Rodriguez, 378 Mass. 296, 301-302, 310-311, 391 N.E.2d 889 (1979), with respect to the identification of the defendant by Trooper Walsh as the person from whom he had twice bought heroin. The request was denied (see point 2[b] ).

Errors Claimed. 1. Denial of voir dire regarding defendant's alleged statement. The police report made available to the defense said nothing about any statement by the defendant, but LeBrasseur testified before the grand jury that the defendant (without benefit of Miranda warnings, as we have said) asked him what the police were doing with his bag, the defendant's question being translated by Rivera at LeBrasseur's request. At the argument on the defendant's motion before trial for voir dire about this supposed admission, ⁹ counsel for Rivera said Rivera's version, as communicated to counsel, was different from LeBrasseur's: according to Rivera, the police asked him (Rivera) to ask the defendant "what the bag was all about," and he did so. On LeBrasseur's version, the defendant's statement would have been made spontaneously and would be admissible although made before Miranda warnings. See Commonwealth v. O'Brien, 377 Mass. 772, 776, 388 N.E.2d 658 (1979); Commonwealth v. Trigones, 397 Mass. 633, 643, 492 N.E.2d 1146 (1986). According to Rivera, the questioning would have been initiated by the police, using Rivera as an interpreter; thus the answer would be inadmissible, just as it would be if made in response to a direct question by the police without a neutral intermediary. See Commonwealth v. Mahnke, 368 Mass. 662, 677, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). Whether one or the other version was the true one should have been examined on voir dire; the right in these circumstances to such threshold judicial...