Com. v. King

• Decision Date: 16 June 1987
• Citation: 508 N.E.2d 1382,400 Mass. 283
• Parties: COMMONWEALTH v. Christopher KING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1382

508 N.E.2d 1382

400 Mass. 283

COMMONWEALTH v. Christopher KING.

Supreme Judicial Court of Massachusetts Bristol.

Argued Sept. 11, 1986.

Decided June 16, 1987.

William M. Kunstler, New York City, for defendant.

Dana A. Curhan, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant appeals from convictions, after a jury-waived trial, on a charge of unlawfully carrying a firearm without a license, and on three charges of unlawfully carrying a firearm under his control in a motor vehicle, G.L. c. 269, § 10 (a ). The defendant was also convicted on four counts of concealing a firearm with an obliterated serial number, G.L. c. 269, § 11C, but those convictions were placed on file, and are not on appeal. The defendant argues that the trial judge erred in denying his pretrial motion to dismiss the relevant indictments on account of egregious misconduct on the part of the Massachusetts State police. We affirm the convictions.

We quote the judge's findings in connection with the motion to dismiss.

"1. On February 7, 1982, Massachusetts State Police Trooper Paul Landry was on routine patrol south bound on interstate Route 95 in the town of North Attleborough. Trooper Landry drove into the rest area which was located in this sector of his patrol. He spotted a green station wagon with two men sitting in the front seat. Upon further investigation, Trooper Landry conducted a license and registration check of Christopher King and his associate, Jaan Laaman. At the same time, Trooper Landry requested a back-up unit, and Trooper Michael Crosby responded to this request.

"2. Upon Trooper Crosby's arrival, Trooper Landry conducted a routine patdown of King which revealed a bullet-proof vest and a firearm. At the same time, Laaman alighted from the vehicle and fired three shots at the Troopers; who returned fire. Laaman fled on foot into the woods behind the Route 95 rest area. The Troopers arrested King and conducted a search of the station wagon which revealed a variety of firearms, ammunitions, narcotics, and a Doberman Pinscher.

"3. On February 26, 1982, the New Jersey State Police arrested Allan Berube for possession of a concealed weapon. Since 1978, Berube had been out of jail and on parole from his 1963 convictions in Federal Courts for bank robberies in Los Angeles, California, and Asheville, North Carolina.... Following his arrest on the weapon charge Berube contacted the New Jersey State Police on March 27, 1982. Berube knew that the police sought the killers of New Jersey State Trooper Phillip Lamonica. He told the New Jersey State Police that he was acquainted with the defendant and some of the defendant's associates who were suspected of being involved in the killing of Lamonica. He offered to lead the police to these individuals in return for the dismissal of the pending firearm charges and assistance with the federal authorities in respect to his scheduled parole revocation hearing. After Berube had made this offer the New Jersey authorities administered two polygraph tests which Berube failed. Nevertheless, the police task force which had been assembled to attempt to apprehend these killers instructed Berube to infiltrate himself among the 'Cambridge community' where the defendant, Christopher King once associated himself.

"4. In preparation for this visit, the task force supplied Berube with a sophisticated electronic recording device. Berube was instructed to seek the whereabouts of King's associates, Thomas Manning and Richard Williams.

"5. On March 28, 1982, the police task force arranged for Berube's entrance into the Bristol County House of Correction where King was incarcerated pending trial. Berube was instructed to obtain King's confidence and determine the whereabouts of Manning and Williams. Berube secured entrance into the jail and spoke with the defendant King for approximately ninety minutes.

"6. Following Berube's first meeting with the defendant King, he met with the task force at the [Massachusetts] State Police barracks in Dartmouth for a debriefing session. At the direction of Thomas Evans of the New Jersey State Police, Massachusetts Trooper John Sorbera recorded this meeting and shortly thereafter transcribed it. No other recordings or notes were made at subsequent police debriefings.

"7. On or about April 3, 1982, Berube visited King for a second time at the request of the New Jersey State Police.... The task force instructed Berube to 'wear down' King by emphasizing that the Cambridge community did not support him. Berube testified that he had been instructed by the police to disparage King's attorneys by pointing out to King that the attorneys were doing nothing in his behalf. I specifically find that Berube's testimony on this issue is not credible. The credible evidence is that King himself told Berube that he was dissatisfied with his attorneys, and that he had attempted to discharge them.

"8. On or about June 5, 1982, Berube made his final visit to King at the Bristol County House of Correction. The police task force instructed Berube to concoct a story which might trick King into revealing the whereabouts of Manning and Williams. Berube told King that he was planning a bank robbery which would net $280,000, but that he needed help from people experienced in this activity. According to Berube the defendant King did not reveal the whereabouts of Manning and Williams through this ruse. Again the police debriefed Berube.

"9. On April 14, 1982, Berube met with members of the police task force in Boston where they equipped him with an operative envelope style electronic transmitter. He was instructed to place this device in his brief case and attend the defendant's motion to suppress hearing in the Bristol County Superior Court at New Bedford .... Berube entered the court house and spent time with King's lawyers in the court house and court house corridors. During a recess Berube placed himself and the brief case which contained the electronic recording device near the holding cell during an attorney-client conference between King and his attorneys. The lawyers observing Berube near them in the holding cell informed Berube that the conference was confidential and instructed Berube to leave. Berube left but he placed the brief case near the holding cell in an attempt to overhear these private and confidential conversations between King and his lawyers. Subsequently Berube retrieved the brief case and then placed the brief case near the defense table so that conversations between King and his lawyers could be intercepted during the course of the hearing. There was evidence offered by the Commonwealth during the course of the hearing before me that batteries had not been placed in the envelope style electronic transmitter because the police officers involved in this investigation knew that it was illegal to engage in electronic surveillance within the court house. I find these assertions not credible.

"10. Sometime in the spring of 1982, Trooper O'Connor of the Massachusetts State Police visited King at the Bristol County House of Correction without the consent of King's attorneys even though he knew that King was represented by counsel. During this visit O'Connor offered King reward money for information relating to the whereabouts of Manning and Williams. Subsequent to this visit, which developed nothing for the police, King began to refuse to see visitors that he did not know. As a result, Major Coe of the New Jersey State Police met with King under false pretenses by asserting to the jail authorities that he was King's attorney. After meeting Coe King refused to cooperate with him.

"11. At no time during the course of the investigation which was being performed by this syndicate of police officers charged with apprehending the fugitives Manning and Williams did the Bristol County District Attorney's office or the officers of the Massachusetts State Police which were charged with prosecuting King for these indictments have any knowledge of the task force activity or of the methods that were being used in that investigation. I specifically find that neither the Bristol County District Attorney's office nor the investigating police officers involved in these indictments violated the defendant's right to the effective assistance of counsel."

The judge concluded that, considering all the circumstances, King had not been prejudiced. Following the lead of United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-68, 66 L.Ed.2d 564 (1981), the judge concluded that, because there was no prejudice, dismissal of the indictments was inappropriate. Therefore, he denied the defendant's motion to dismiss. The only issue on appeal is whether that ruling was correct.

There was ample evidence to support the judge's finding that neither the police nor Berube had disparaged King's counsel or otherwise impaired King's relationship with counsel. The judge also was warranted in finding that none of the team prosecuting King was involved in, or knew about, the improper surveillance of King's discussions with counsel, or the visits to King at the Bristol County house of correction. Therefore, the judge's finding of no prejudice to the defendant, which addressed the period up to the hearing on the motion to dismiss, must stand.

The judge did not address the question whether the possibility that, after the hearing on the motion but before trial, the police would disclose to the prosecutor information gained by the electronic surveillance of King's conferences with his attorney, presented a substantial threat of prejudice. It is appropriate that we do so. The judge disbelieved that batteries had not been placed in the electronic transmitter. Even if, favorably to the defendant, we treat the judge's expression of disbelief as a finding that King's conferences with his...