Com. v. Dias

• Decision Date: 21 May 2008
• Docket Number: SJC-10010.
• Citation: 886 N.E.2d 713,451 Mass. 463
• Parties: COMMONWEALTH v. Carl DIAS & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

886 N.E.2d 713

451 Mass. 463

COMMONWEALTH v. Carl DIAS & another.¹

SJC-10010.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 7, 2008.

Decided May 21, 2008.

Tara Blackman, Assistant District Attorney, for the Commonwealth.

Kenneth I. Seiger for Carl Dias.

John M. Goggins, Worcester, for Louis Whitehead.

Present: GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

CORDY, J.

This matter is here on the Commonwealth's petition, filed pursuant to G.L. c. 211, § 3, which a single justice reserved and reported to the full court. The Commonwealth seeks relief from a ruling of a Superior Court judge requiring it to disclose the identity of a confidential informant, and from the judge's denial of the Commonwealth's subsequent motion for an in camera hearing, prior to that order taking effect, to determine whether the informant had a valid privilege pursuant to the Fifth Amendment to the United States Constitution and, if not, whether the informant had information that would be actually helpful to the defense.

We conclude that there was no error in the judge's order of disclosure. We also conclude that whether the informant has a valid Fifth Amendment privilege as to some or all of the questions that might be asked if he² were called as a witness at trial, would not vitiate the defendants' right to the informant's identity. Consequently, the judge's denial of the Commonwealth's request for an in camera hearing on that subject, as a prerequisite to disclosure, was not error. Finally, we conclude that although the judge was mistaken when he ruled that he did not have the authority to hold an in camera hearing for the purpose of determining whether the informant had information that was helpful and relevant to the defense (so as to overcome the Commonwealth's "informant privilege"), such a hearing was unnecessary in this case based on the unambiguous record before him.

1. Procedural background. The defendants Carl Dias and Louis Whitehead were indicted on charges of trafficking cocaine in violation of G.L. c. 94C, § 32E (b) (3); violating drug laws within a school zone, G.L. c. 94C, § 32J; and conspiring to violate the drug laws, in violation of G.L. c. 94C, § 40. Immediately prior to the scheduled trial, the defendants filed motions to disclose the identity of a confidential informant, on whose information a search warrant had issued during the course of the investigation leading to their indictments, contending that the informant had information both relevant and helpful to their defense.

In support of their motions, the defendants pointed to the inconsistency between the information attributed to the informant in the search warrant affidavit and the statement of a prospective witness for the Commonwealth, which they had just received. The witness was Kendra Belisle, who was originally a codefendant in the case, was the target of the search warrant and had entered a plea agreement with the Commonwealth.

Given the apparent inconsistency between the informant's information and the expected testimony of Belisle, a key Commonwealth witness, the judge allowed the motion and ordered the Commonwealth to disclose the name and address of the informant. Before complying with the judge's order, the Commonwealth filed a motion for an in camera voir dire of the confidential informant.³ The Commonwealth explained that it was seeking the in camera hearing because the informant had expressed concerns for his safety, and because it had been informed that if the informant was called to testify, he would invoke his Fifth Amendment privilege against self-incrimination. The Commonwealth contended that if the judge conducted an in camera hearing and concluded that the informant either had a valid Fifth Amendment privilege or had no exculpatory information, then disclosure would be unnecessary and inappropriate. The judge denied the Commonwealth's motion, concluding that he did not have the authority to conduct an in camera hearing with regard to the extent of the informant's information, and that there was no Fifth Amendment privilege where the informant had engaged in a "controlled buy" from Belisle and had otherwise waived the privilege as to information given to the police and included in the affidavit. In any event, the judge concluded that based on the record before him, the disclosure of the informant's identity would be relevant and helpful to the defense, and thus required by Commonwealth v. Lugo, 406 Mass. 565, 548 N.E.2d 1263 (1990).

2. The search warrant, the informant's information, and Belisle's statement.⁴ On October 1, 2004, Detective Manuel Bernardo of the Fall River police department obtained a search warrant for 103 O'Grady Street, apartment 2N. The targets of the warrant were Belisle and Jared Robinson. The warrant authorized the police to search the premises (and the persons of Belisle and Robinson) for "crack" cocaine, other unlawful substances, drug paraphernalia, drug proceeds, and other evidence of drug offenses. The warrant was issued based on an application that contained an affidavit filed by Detective Bernardo, which included the following pertinent information.

Within seventy-two hours of the application for the search warrant, Bernardo received information from a confidential informant, whom he deemed reliable,⁵ that a female named Kendra Belisle, "who lives at 103 O'Grady Street," apartment 2N, was selling crack cocaine.⁶ The informant told Bernardo that he had purchased cocaine from Belisle "numerous times in the past." The informant stated that Belisle did not allow purchasers to come to her apartment to buy drugs; instead, she met them one to two city blocks away from her house. According to the informant, Belisle did not want anyone to know where she lived because she wanted to protect her apartment from police raids. The informant stated that Belisle and Robinson, her boy friend, lived in the apartment,⁷ and that the informant had also seen three or four other people in the apartment, some of whom had slept there overnight.

In the affidavit, Detective Bernardo also averred that within seventy-two hours of his application for the search warrant, the informant had identified photographs of Belisle and Robinson⁸; and that Bernardo had driven the informant past 103 O'Grady Street and the informant stated that Belisle lived on the left side of the second floor at that address. The informant also directed Bernardo to a nearby vehicle that he stated belonged to Belisle.⁹

Additionally, within this same seventy-two hour period, the informant made a controlled purchase of cocaine from Belisle. The informant telephoned Belisle and asked for an amount of cocaine; Belisle told the informant to meet her at a location near the apartment. Bernardo (and an officer assisting him) watched Belisle leave the apartment on O'Grady Street, walk to the nearby meeting point, converse with the informant, touch hands, and then return to the apartment. The informant then gave Bernardo a bag that Belisle had given him in exchange for money. That bag contained cocaine. The affidavit concluded with Bernardo's belief that there was probable cause to believe that Belisle was selling cocaine and storing it at her apartment at 103 O'Grady Street.

Prior to trial, Belisle decided to cooperate with the Commonwealth, and entered a plea agreement.¹⁰ Belisle told the police that although the apartment was in her name, she had sublet it to the defendants in exchange for compensation; that during the two months prior to the raid, the defendants were the ones who lived in the apartment, and had engaged in the preparation and sale of crack cocaine; and that she and Robinson lived elsewhere. She went to the apartment to clean it and change her clothes. Explaining why she was at the apartment at the time the search warrant was executed, she stated that, just before the raid, Dias telephoned and asked her to bring him a box of baking soda. When she arrived at the apartment, she saw Dias sell cocaine to another man, and Whitehead mixing cocaine with baking soda. She further explained that Dias had given her the two pieces of crack cocaine that were found on her person and that she was to give the cocaine to Robinson. She also told police that Dias would collect everyone's money, pool it, and then buy cocaine. She claimed to have gone with him at least three times to buy cocaine: Dias would telephone her, and she would pick him up and drive him to meet another male, from whom he would buy the cocaine. Whitehead would meet the customers on a nearby street to sell cocaine. She denied any other participation in the defendants' activities beyond purchasing cocaine occasionally.

3. Discussion. a. Disclosure order. The government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth. Commonwealth v. Madigan, 449 Mass. 702, 705-706, 871 N.E.2d 478 (2007). Worthington v. Scribner, 109 Mass. 487, 488 (1872).¹¹ The privilege serves a "substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity." Commonwealth v. Madigan, supra at 706, 871 N.E.2d 478, quoting Commonwealth v. Douzanis, 384 Mass. 434, 441, 425 N.E.2d 326 (1981). See Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Competing with the privilege is the defendant's entitlement to exculpatory and other information material to his defense. Commonwealth v. Madigan, supra, and cases cited. Where disclosure is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro v. United States, supra at 60-61, 77 S.Ct. 623. See Commonwealth v. Lugo, 406 Mass. 565, 570, 548 N.E.2d 1263 (1990). The issue of disclosure "calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders...