Com. v. Filippidakis

• Decision Date: 11 February 1991
• Docket Number: No. 90-P-354,90-P-354
• Citation: 29 Mass.App.Ct. 679,564 N.E.2d 596
• Parties: COMMONWEALTH v. Christos FILIPPIDAKIS.
• Court: Appeals Court of Massachusetts

Page 596

564 N.E.2d 596

29 Mass.App.Ct. 679

COMMONWEALTH v. Christos FILIPPIDAKIS.

No. 90-P-354.

Appeals Court of Massachusetts,

Worcester.

Argued Oct. 10, 1990.

Decided Jan. 7, 1991.

Further Appellate Review Denied

Feb. 11, 1991.

Conrad W. Fisher, Worcester (Charles K. Stephenson, South Amherst, with him), for defendant.

Sean J. Gallagher, Asst. Dist. Atty., for the Com.

Before SMITH, KAPLAN and GILLERMAN, JJ.

KAPLAN, Justice.

Convicted on August 31, 1989, of receiving stolen goods (from a Caldor store) and trafficking in more than 100 grams of cocaine, ¹ the defendant Filippidakis, through new counsel, moved on February 7, 1990, for a new trial on the ground that his trial counsel had not afforded him effective assistance. Upon consideration of the trial record and affidavits filed in support of the motion, the trial judge denied the motion with an explanatory memorandum; he did not think an evidentiary hearing was called for. From the order of denial, the defendant takes his appeal. We affirm.

1. Trial Record. It becomes useful to outline the evidence at trial. Officers on July 8, 1987, executed search warrants issued the same day for the first and second floors of premises at 90 Providence Street, Worcester, said to be occupied by "the Greek," described as a male, forty to forty-five years old, with blackish hair and beard. The objects of the search were goods stolen from a Caldor store in Westborough, as well as cocaine and drug related items.

Search by State and Westborough police officers yielded many items in each apartment identified as stolen from Caldor. Most of the goods were still in their boxes. The defendant's son-in-law, Konstantinos Panoutsakopoulas, forty years old and bearded, the occupant of the first floor apartment, was arrested and charged with receiving the stolen goods found there. He later, on February 25, 1988, admitted to sufficient facts for a finding of guilty on a count of receiving stolen goods. ²

State Trooper Thomas Greene, after he had forced his way into the second floor apartment, passed through to the front hallway. There he saw the defendant, an elderly man with gray hair, coming down from the third floor. Upon determining that the defendant lived in the second floor apartment, Greene arrested him on the spot. The defendant was found to have on his person keys to the third floor apartment and a notebook into which was inserted a "cuff sheet" (a tally sheet of drug transactions).

Greene now sought and obtained a search warrant for the third floor apartment, stated to be occupied by the defendant. Found there were additional stolen goods similar to those found on the floors below, as well as 103 grams of cocaine, a bottle of Inositol (a compound used to "cut" cocaine), two triple beam scales, baggies, a grinder, and $18,902 in cash. A wallet also discovered contained various credit cards in the defendant's name and $3,000 in cash.

The defendant, after Miranda warnings, made a number of statements at the house and subsequently. He said: "It's mine. Everything is mine. I keep it up here" (referring to the third floor apartment), and denied that anyone else was involved with the cocaine. He also admitted to having bought "a couple of ounces" of cocaine "a couple of months ago" when he was sick and in financial straits. He said he was the owner of the building. The occupant of the third floor, he said, was his other son-in-law, Namvar Mansouri. Mansouri was out of the country and had been away for three months.

Such was the substance of the evidence for the Commonwealth.

The defendant, testifying in his own behalf, denied having made any incriminating statements to the police. He said he had been unable to grow a beard since 1987 as a result of treatment by chemotherapy for cancer. He confirmed that he owned the building; also an adjacent pizza parlor. He lived, he said, in the second floor apartment and was arrested there while he was watching TV. He never saw stolen goods in his apartment and knew nothing about cocaine; if he admitted to the police any connection with the drug or goods, it was under police threats that he would not see his absent relatives again.

According to the defendant, the third floor apartment, during the absence of Mansouri and his wife and children, was subleased to one Spiros Athanasiou, and he, the defendant, had not been in that apartment since Mansouri's departure in May, 1987. The credit cards taken were "old."

The daughter Maria Mansouri (wife of Namvar) corroborated that Athanasiou was the resident of the upstairs apartment at the time of the arrests. He was said to be about thirty-five years of age and to have a black beard. The defendant, she said, had no association with him. The notebook belonged to her husband and she had last seen it in the small office, separate from the apartment, on the third floor. The daughter Arete Panoutsakopoulas (wife of Konstantinos) confirmed that Athanasiou lived on the third floor and identified him as the bearded man in his thirties in a photograph. She had seen no contraband on the second floor.

Konstantinos Panoutsakopoulas took the stand to admit in some detail to having purchased the stolen items found in his apartment. The defendant, he said, was not connected with these goods; Panoutsakopoulas had not seen any stolen goods in the defendant's second floor apartment, nor had he seen any involvement of the defendant with cocaine.

On the foregoing summary of the evidence, the guilty verdicts appear adequately supported in substance. This is not disputed.

2. New Trial Motion. Besides argument based on the trial record, the motion tendered essentially the search warrant materials and affidavits from the defendant Filippidakis, his wife, and daughter Arete Panoutsakopoulas. Ineffectiveness of trial counsel was charged in the three respects, (a)-(c) which follow.

(a) Conflict of interest. (i) Panoutsakopoulas. The first floor resident, Konstantinos Panoutsakopoulas, fits more or less the description of "the Greek" in the identical affidavits supporting the first and second floor warrants. He was thus an alternative suspect to the defendant regarding the stolen goods and cocaine trafficking. The defendant's trial attorney had represented Panoutsakopoulas on the charge of receiving the stolen goods found on the first floor. That prosecution, however, had been disposed of on February 24, 1989, before Panoutsakopoulas testified in the instant case, and the attorney-client relationship had ended. Thus there was no such "genuine" or per se conflict of interest as can be found "when there is joint representation and 'an attorney cannot use his best efforts to exonerate one defendant for fear of implicating another defendant.' " Commonwealth v. Griffin, 404 Mass. 372, 375-376, 535 N.E.2d 594 (1989). See, in varying situations, Commonwealth v. Soffen, 377 Mass. 433, 439-440, 386 N.E.2d 1030 (1979); Commonwealth v. Cobb, 379 Mass. 456, 460-461, 405 N.E.2d 97 (1980); Commonwealth v. Pires, 389 Mass. 657, 661-662, 451 N.E.2d 1155 (1983). See also Commonwealth v. Smith, 362 Mass. 782, 784, 291 N.E.2d 607 (1973). Whether Panoutsakopoulas made any communications to the attorney whose suppression could embarrass the attorney's defense efforts in the present case was a matter of fact to be shown or at least suggested beyond mere speculation. See Commonwealth v. Smith, 362 Mass. at 784, 291 N.E.2d 607; Commonwealth v. Walter, 19 Mass.App.Ct. 82, 86, 471 N.E.2d 762 (1984), S.C., 396 Mass. 549, 554, 487 N.E.2d 513 (1986). What remained was the possibility of a "tenuous" conflict where divergent interests of those represented by the defense attorney are not immediately evident, but become so through a material defect in trial performance. There is nothing in the record to suggest that the attorney's performance here was adversely influenced by any residual allegiance to Panoutsakopoulas. See Commonwealth v. Davis, 376 Mass. 777, 783, 384 N.E.2d 181 (1978). We agree with the judge that there was little or nothing to go on. We add that conflict of interest appears hardly plausible where Panoutsakopoulas, putatively "the Greek," took the stand and testified in the defendant's favor.

(ii) Athanasiou. Another "tenuous" possibility arose from the fact that the attorney, at the time of the instant trial, was the attorney of record in an unrelated aggravated-rape and kidnapping prosecution against Athanasiou. ³ The charge remained unresolved because Athanasiou had defaulted on his bail and apparently fled the country and was beyond reach. It is intimated that it may have been through loyalty to Athanasiou that the attorney failed to call Helen Bilioris, Athanasiou's former girl friend, the alleged victim of the rape. The attorney had indeed named Bilioris in his witness list and opening statement and made some effort to subpoena her, which he abandoned. Bilioris might have been a willing witness against Athanasiou's interest, and conceivably she would corroborate testimony that he occupied the third floor apartment at the time of the arrests, confirm his resemblance to "the Greek," describe his high-spending style hinted at in other testimony, and state, if she knew, what was his source of income. But, without regard to the attorney's conceivable motive in not pressing to call Bilioris, what is predicated as her contribution would be mostly cumulative upon evidence given by others; otherwise it rested in speculation. The defendant, as the moving party for a new trial, presented no circumstantial proof, let alone an affidavit by Bilioris, that showed she "could have added anything to improve the defendant's case." Commonwealth v. Walter, 396 Mass. at 559, 471 N.E.2d 762. See also Commonwealth v. Edgerly, 390 Mass. 103 108, 453 N.E.2d 1211 (1983); Commonwealth v. Cote, 7 Mass.App.Ct. 150, 152, 387 N.E.2d 594 (1979).

(b) Admission of evidence obtained under search warrants. The motion for a new trial...