Com. v. Fernandes

• Decision Date: 12 December 1990
• Docket Number: No. 90-P-893,90-P-893
• Citation: 568 N.E.2d 604,30 Mass.App.Ct. 335
• Parties: COMMONWEALTH v. Manuel J. FERNANDES.
• Court: Appeals Court of Massachusetts

Page 604

568 N.E.2d 604

30 Mass.App.Ct. 335

COMMONWEALTH v. Manuel J. FERNANDES.

No. 90-P-893.

Appeals Court of Massachusetts Plymouth.

Dec. 12, 1990.

Decided March 26, 1991.

Mary Ellen Kelleher, Somerville, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for Com.

Before SMITH, FINE and PORADA, JJ.

PORADA, Justice.

The defendant was convicted by a jury in the Superior Court of trafficking in cocaine of more than 200 grams (G.L. c. 94C, § 32E[b ], as appearing in St.1983, c. 571, § 3), unlawful possession of hashish with intent to distribute (G.L. c. 94C, § 32B[a ] ), unlawful possession of marijuana (G.L. c. 94C, § 34), unlawful possession of valium (G.L. c. 94C, § 34), and unlawful possession of ammunition without an identification card (G.L. c. 269, § 10[h ] ). On appeal he assigns as errors: (1) the judge's refusal to allow the defendant to offer evidence of the codefendant's plea colloquy and plea of guilty to the charge of possession of cocaine with intent to distribute; (2) the denial of the defendant's motion for disclosure of identity of the prosecution's informant; (3) the denial of the defendant's motion to suppress; (4) the prosecutor's examination of a witness and comments in closing argument which allegedly reflected impermissibly upon the defendant's right not to testify and failure to produce evidence; and (5) the failure of the judge to discharge the jury or give a requested instruction when a poll of the jury indicated the verdicts were not unanimous. We reject the defendant's claims of error and affirm the convictions.

We summarize the pertinent evidence relevant to defendant's claims. The defendant and a codefendant, Cynthia Leaman, resided together at 18 Fourth Road in Marshfield. On February 28, 1986, the Marshfield police executed a search warrant at that address. Both the defendant and codefendant were present when the warrant was executed. The police found $900 in cash, a twelve-gauge shotgun, and paraphernalia for mixing, weighing, and packaging drugs in the master bedroom. The master bedroom contained a closet in which the police found a locked safe. The defendant admitted the safe was his and voluntarily opened the combination lock for the police. The safe contained four bags of cocaine weighing 307.4 grams, one and three-quarters pounds of hashish, $12,004 in cash, a ledger book containing records of drug transactions, and .38 caliber ammunition. After the safe was searched, the police asked the defendant if there were any other drugs in the house, to which the defendant responded, "No, that's all I have." In the police officers' continued search of the house, they found on the coffee table in the living room a small amount of marijuana and drug paraphernalia. The police found the codefendant's purse in the kitchen. The purse contained cocaine paraphernalia and an address book with the name "Festus" in it. The same name was found in the ledger book in the safe. Various personal papers of both the defendant and codefendant were discovered in the house. At the conclusion of the search, both the defendant and the codefendant were charged with trafficking in cocaine.

1. Codefendant's plea of guilty. The defendant attempted to place in evidence his codefendant's plea colloquy and guilty plea to a lesser charge of possession of cocaine with intent to distribute as evidence of his innocence. The defendant claimed that the codefendant had the intent to distribute the cocaine found on the premises. The trial judge correctly excluded the evidence.

While one person's guilty plea may not be used as substantive evidence of the guilt of another (see Commonwealth v. Elisha, 3 Gray 460, 461 [1855]; Commonwealth v. Tilley, 327 Mass. 540, 548-549, 99 N.E.2d 749 [1951]; Commonwealth v. Alicia, 6 Mass.App.Ct. 904, 905, 378 N.E.2d 704 [1978] ), there appears to be no Massachusetts decision which has ruled on whether one person's guilty plea may be used to prove the innocence of another. The defendant contends that the colloquy and the plea of his codefendant were admissible as declarations against penal interest.

For a statement to be admissible as a declaration against penal interest, the following three tests must be met: " [T]he declarant's testimony must be unavailable; the statement must so far tend to subject the declarant to criminal liability 'that a reasonable man in his position would not have made the statement unless he believed it to be true'; and the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness." Commonwealth v. Drew, 397 Mass. 65, 73, 489 N.E.2d 1233 (1986), quoting from United States v. Thomas, 571 F.2d 285, 288 (5th Cir.1978), and citing Proposed Mass.R.Evid. 804(b)(3).

While the first test was clearly met in this case by the parties' stipulation that the codefendant was unavailable as a witness, the judge could properly have found that one or both of the other tests had not been satisfied. ¹ The plea was clearly affected by the exigencies of the plea bargaining ² and the plea colloquy was something less than "an unequivocal admission of guilt." ³ Commonwealth v. Alicia, 6 Mass.App.Ct. at 905, 378 N.E.2d 704.

We conclude further that the trial judge's decision to exclude the plea colloquy and guilty plea was correct on the ground of relevancy. Clearly, the plea colloquy contained irrelevant, immaterial, and incompetent evidence such as the penalty for the offense. More importantly, the codefendant's plea did not exonerate the defendant. The codefendant's plea of guilty was not inconsistent with the defendant's guilt, for more than one person may possess the same narcotics. Commonwealth v. Dinnall, 366 Mass. 165, 168-169, 314 N.E.2d 903 (1974). This is particularly true in this case where there was no evidence that the codefendant had access to the safe where the quantities of cocaine, hashish, cash, and the account ledger were kept.

2. Failure to disclose the identity of the informant. One of the informants had participated in a controlled buy on the premises within seven days of the application for the warrant. The defendant argued that he was entitled to know the identity of that informant in order to prepare his defense, presumably to find out from whom the informant had purchased the cocaine.

Disclosure of the identity of an informant is usually required when the informant is an active participant in the crime charged, or the only nongovernment witness to the crime. Commonwealth v. Lugo, 406 Mass. 565, 572, 548 N.E.2d 1263 (1990). Here, the informant was neither an active participant in the crimes charged, which were based on the possession of narcotics with intent to distribute, nor the only nongovernment witness. He was simply a tipster. See Commonwealth v. Brzezinski, 405 Mass. 401, 408, 540 N.E.2d 1325 (1989); Commonwealth v. Mott, 2 Mass.App.Ct. 47, 53, 308 N.E.2d 557 (1974). We perceive no error in the judge's denial of the request for disclosure.

3. Motion to suppress.

a. General warrant. The search warrant directed the executing officer to seize the following property:

"Can[nabi]s and all of it's derivat[iv]es. Cocaine, a white powder and controlled substance as definded [sic ] in M.G.L C94c. All related drug paraph[erna]lia for packaging, weighing and distributing same. All monies, records and proceeds of illegal drug sales. And to include any other illegally kept controlled drugs or firearms of various descriptions."

The defendant claimed that the warrant was an impermissible "general warrant" giving the police unfettered discretion to rummage and search the defendant's home for anything and everything. The benchmark of a general warrant is the broad discretion vested in the executing officer permitting an unguided search or "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). Commonwealth v. Kenneally, 10 Mass.App.Ct. 162, 172-173, 406 N.E.2d 714 (1980), S.C., 383 Mass. 269, 270, 418 N.E.2d 1224 (1981). Except for the words "[a]nd to include any other illegally kept controlled drugs or firearms of various descriptions," we conclude the language of the warrant was adequately specific to satisfy the requirements of the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, § 2, that search warrants describe with particularity the items to be seized. See Commonwealth v. Taylor, 383 Mass. 272, 275, 418 N.E.2d 1226 (1981); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323, 60 L.Ed.2d 920 (1979).

In Commonwealth v. Lett, 393 Mass. 141, 144-146, 470 N.E.2d 110 (1984), the Supreme Judicial Court held that under the Fourth Amendment to the Constitution of the United States the tainted portion of a search warrant is severable from the valid portion and items may properly be seized under the valid portion. As noted infra (see note 4), the affidavit presented to the magistrate for the issuance of the warrant contained probable cause to search only for cocaine, drug paraphernalia used in packaging, weighing, and distributing cocaine, and all money, records, and proceeds of cocaine sales. Consequently, only that portion of the warrant which directed the seizure of those specific items was valid. However, since the search for cocaine and all related drug paraphernalia could "include any area, place, or containerreasonably capable of containing" any of these items (Commonwealth v. Signorine, 404 Mass. 400, 405, 535 N.E.2d 601 [1989] ), the other items seized in the search of the premises in plain view were within the scope and intensity of the search and seizure permitted under the terms of the valid portion of the warrant. See Commonwealth v. Lett, supra 393 Mass. at 147-148, 470 N.E.2d 110. We perceive no error in the judge's denial of the motion to suppress on the basis of an...