Com. v. Lewin

• Decision Date: 14 August 1989
• Citation: 542 N.E.2d 275,405 Mass. 566
• Parties: COMMONWEALTH v. Albert LEWIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 275

542 N.E.2d 275

405 Mass. 566

COMMONWEALTH v. Albert LEWIN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 6, 1989.

Decided Aug. 14, 1989.

Michael J. Traft, Sp. Asst. Dist. Atty. (Francis O'Meara, David B. Mark and Susan Underwood, Asst. Dist. Attys., with him), for the Com Max D. Stern (Patricia Garin, Boston, with him), for defendant.

Andrew Good, Boston, and Harvey Silverglate, Cambridge, for Massachusetts Ass'n of Criminal Defense Lawyers, amicus curiae, submitted a brief.

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

WILKINS, Justice.

This case involves perfidious Boston police officers whose perjurious and fraudulent conduct has threatened the Commonwealth's right to try the defendant for the murder of Detective Sherman C. Griffiths of the Boston police department. A Superior Court judge concluded that the indictments against the defendant had to be dismissed for failure of the Commonwealth to produce a witness whose testimony would have aided the defense. The Commonwealth then sought reconsideration of the dismissals, presenting facts to the judge tending to show that the exculpatory witness in fact had never existed. The judge reconsidered his decision in light of the new disclosures and reaffirmed his decision to dismiss the indictments. Although we agree with the motion judge that the police engaged in egregious conduct, we conclude that the indictments should not have been dismissed.

Detective Griffiths was shot on February 17, 1988, while in the hallway of an apartment house at 102-104 Bellevue Street in the Dorchester section of Boston. He and other police officers were attempting to execute a search warrant. The building at 102-104 Bellevue Street contained two apartments on each of its three floors. Access among the apartments was available by means of front and rear stairways. The apartments on the left, facing the front of the building, were at 102 Bellevue Street; the apartments on the right were at 104 Bellevue Street.

The application for the search warrant. We start our unavoidably lengthy narrative of the facts and lower court proceedings with the application for the warrant to search the apartment on the third floor of 102 Bellevue Street.

On February 17, 1988, Officer Carlos A. Luna of the Boston police department applied for a search warrant to search "apt. # 3 on the third floor" of 102 Bellevue Street. In that sworn application, Luna stated information he claimed to have received from "a reliable informant" referred to as "IT." In the course of this case, "IT" came to be described as John, and we shall continue the practice in this opinion. Luna represented that John had reported that he had recently been in the apartment on the third floor of 102 Bellevue Street, the home of an Hispanic male of medium build, five feet, six inches in height, in his thirties. John saw that man, whom he knew as Stevie, packaging cocaine in Massachusetts lottery receipts. According to Luna, John said that Stevie had rebuilt the door to the apartment "making it an extremely heavy door to break down," and that Stevie sold cocaine through a hole in the door without opening it.

Luna's application continued, stating that he himself had seen people knocking on the apartment door, pushing money through the door, and receiving folded paper back. He claimed that on February 15, 1988, he had made a purchase of cocaine through the door and had done so again on February 16, 1988, using official police department marked money.

As we shall see, Luna would later repudiate under oath his sworn representation that he made the drug purchases on February 15 and 16. He would similarly repudiate John as the source of any information presented in his application for the search warrant. We shall consider later the source of Luna's reference to and description of an Hispanic male named Stevie. The fact that on each of the two days preceding the death of Detective Griffiths an Hispanic male was selling drugs through the door of the apartment, if true, would prove that the defendant, a black Jamaican, was not the only person selling drugs from that location about the time of Griffiths's death.

The attempt to execute the warrant; Griffiths's death. At approximately 8 P.M. on February 17, 1988, members of the Boston police department drug control unit, including Officers Carlos Luna and Paul Schroeder and Detectives Sherman Griffiths and Hugo Amate, attempted to execute the warrant on the third floor at 102-104 Bellevue Street. Two officers remained outside the building to prevent any escape. As Griffiths was attempting with a sledgehammer to break down the door of the third-floor apartment at 104 Bellevue Street, shots were fired through the door from the inside. A bullet struck Griffiths in the head, killing him. Other officers forced the door open and found the apartment empty. The police searched the building. In the first floor apartment at 104 Bellevue Street they found seven adults: three blacks who lived in the apartment, two Hispanic males, one white male, and one black Jamaican male, the defendant.

The probable cause hearing. As a result of questioning the people found in the first-floor apartment and an investigation, the police charged the defendant with murder. Others were charged with various drug offenses. James McConnell, one of the occupants of the first-floor apartment, was also charged with murder. A probable cause hearing was held in early March, 1988. The charges against persons other than the defendant were dismissed with the Commonwealth's assent in exchange for their cooperation. ¹ Probable cause was found on the charges against the defendant.

Evidence presented at the probable cause hearing indicated that, shortly after noise of banging and shots was heard, the defendant, who was a drug dealer living alone on the third floor, entered the first-floor apartment. The defendant tried to give a gun to Shirley McConnell who refused to take it. He then gave it to James McConnell who put it under a mattress, where Officer Schroeder found it shortly thereafter. The gun had fired the bullet that killed Griffiths. There was evidence that the person who had sold drugs from the third floor apartment before the defendant had was a Jamaican named Stevie.

Officer Schroeder testified on cross-examination that he had not participated in the investigation that had led to the issuance of the search warrant and that he had not been to 102-104 Bellevue Street before the day Griffiths was shot. Later in the course of this case, by affidavit Schroeder would in effect repudiate this testimony.

Officer Luna testified on questioning by the defendant that, on February 15, 1988, he went up to the third floor and said, "Stevie, I need one," placed $60 through the slot in the door, and received cocaine. He had heard that a person who went by the name Stevie sold drugs there. He believed that Stevie was an Hispanic. He went again on February 16, 1988, and made a second buy for $60. Three black males in the building saw him. One of them said that he thought he recognized Luna. Luna's informant John, who had been inside the apartment, provided the description of Stevie. Luna testified that he had remained in touch with John off and on and had met with him on February 15. As we shall see, based on the record in this case, substantially all this testimony from Luna is false or probably false.

The motion for disclosure of the informant and dismissal of the indictments. On May 11, 1988, a Suffolk County grand jury returned against the defendant one indictment charging murder, two indictments charging armed assault with intent to murder, two indictments charging assault with a dangerous weapon, and one indictment charging carrying a firearm without a license. On June 24, defense counsel moved for disclosure of the informant John's identity. On August 17, a judge in the Superior Court allowed the motion. The Commonwealth did not appeal from that order. On August 19, the defendant moved for an order directing the Commonwealth to produce the informant by a certain date. On September 22, the judge ordered that the Commonwealth produce the informant within two weeks. The Commonwealth did not do so, and, on October 20, 1988, the defendant moved to dismiss the indictments. A hearing on the motion was held in early December.

Luna, testifying at the hearing on the defendant's motion to dismiss, said that he relied on information from John in applying for the search warrant. John told Luna that the money and drugs were passed through a hole in a steel door at 102 Bellevue Street. John said that he had been in the apartment. John did not "make a buy" for Luna at the third-floor apartment.

Luna did not know John's full name, his address, his education, where he was born, where he came from, how long he had lived in Boston, who his friends were, or whether he had ever been arrested. John is not Hispanic. Luna described John's height, his weight, the color of his hair and skin, and approximate age. Luna also described various meetings he had had with John. Luna had spoken to John two days after the shooting and at various other times, including as recently as August 29, 1988.

Defense counsel's investigation uncovered thirty-one search warrants that Luna had obtained between June, 1987, and March, 1988, purportedly relying on information from John. From 1984 through March, 1988, John had been Luna's principal informant. Among other police officers, only the victim Griffiths had met John, as far as Luna knew. Luna had paid John at least $2,000 for information. John had given Luna information about drug operations in Roxbury, Dorchester, Jamaica Plain, Hyde Park, the South End, and East Boston.

The prosecutor asserts that, promptly after the judge's order to produce John, he told Luna to find John. On September 27, 1988, a deputy police superintendent ordered Luna to find...