Com. v. Montanague

• Decision Date: 14 November 1977
• Citation: 369 N.E.2d 466,5 Mass.App.Ct. 889
• Court: Appeals Court of Massachusetts

Page 466

369 N.E.2d 466

5 Mass.App.Ct. 889

COMMONWEALTH v. Walter L. MONTANAGUE.

Appeals Court of Massachusetts, Worcester.

Argued Feb. 14, 1977.

Decided Nov. 14, 1977.

Lucious Dillon, Boston, for defendant.

Daniel F. Toomey, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GOODMAN and ARMSTRONG, JJ. RESCRIPT.

The defendant appeals (G.L. c. 278, §§ 33A-33H) from a conviction of possession of heroin with intent to sell; he cannot prevail on either of the two assignments of error argued.

1. The affidavit by a Worcester police officer shows probable cause for the issuance of a warrant to search the first floor apartment at 30 Bancroft Street, Worcester; and a motion to suppress evidence seized under the warrant was properly denied. The affidavit sets out that an informant told the affiant that the defendant "has obtained heroin from New York and has asked the informer on this date (the date of the affidavit and search) to help him package the narcotic and has also offered to sell her some of the heroin." The affidavit also gives the informer's description of the defendant, including his name and alias and where he lived. The affidavit further sets out a detailed list of articles which the informer stated were taken during breaks at two specified places. These included "a large quantity of payroll checks and a check writer"; and the informer further stated that the defendant "gave her checks to cash and that she did cash two of them." (The defendant's brief characterizes them as "stolen checks," conceding as he must that in context this was a fair inference.) The defendant's contention that the affidavit contains no information derived independently through police investigation, or otherwise, which corroborates the informer's statement, has force. See Spinelli v. United States, 393 U.S. 410, 417-418, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Commonwealth v. Stevens, 362 Mass. 24, 28-29, 283 N.E.2d 673 (1972); Von Utter v. Tulloch, 426 F.2d 1, 3-4 (1st Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 50, 27 L.Ed.2d 55 (1970). Contrast Commonwealth v. Stewart, 358 Mass. 747, 752, 267 N.E.2d 213 (1971); Commonwealth v. Duran, 358 Mass. 825, 267 N.E.2d 926 (1971); Commonwealth v. Anderson, 362 Mass. 74, 76, 284 N.E.2d 219 (1972); Commonwealth v. Vynorius, 369 Mass. ---, --- ^a, 336 N.E.2d 898 (1975); United States v. Dauphinee, 538 F.2d 1, 4 (1st Cir. 1976). However, the affidavit alleges that the informer has given the affiant information in the past which resulted in the conviction of several persons for receiving stolen property and possession of narcotic drugs. See Commonwealth v. Brown, 354 Mass. 337, 345, 237 N.E.2d 53 (1968); Commonwealth v. Anderson, supra; Commonwealth v. Hall, 366 Mass. 790, 792-793, 797, 323 N.E.2d 319 (1975); Commonwealth v. Vynorius, supra at --- - --- ^b, 336 N.E.2d 898. And the more than ordinary particularity with which the informant listed the stolen items in the apartment and described her dealings with the defendant (some of them self-incriminating, Commonwealth v. Stewart, supra; Commonwealth v. Stevens, supra at 28, 283 N.E.2d 673; Commonwealth v. Fleurant, 2 Mass.App. 250, 253 ^c, 311 N.E.2d 86 (1974)) cannot be said to be "allegations . . . of a character that would readily occur to a person prone to fabricate," United States v. Harris, 403 U.S. 573, 593, 91 S.Ct. 2075, 2087, 29 L.Ed.2d 723 (1971) (Harlan, J., dissenting) and indicates that the information was the product of knowledge derived from personal observation and contact with the defendant. Commonwealth v. Penta, 352 Mass. 271, 276, 225 N.E.2d 58 (1967). Commonwealth v. Brown, supra at 346, 237 N.E.2d 53; Commonwealth v. Vynorius, supra at --- - --- ^d, 336 N.E.2d 898; Commonwealth v. Genest, --- Mass. ---, --- - --- ^e, 359 N.E.2d 950 (1977). See Spinelli v. United States, supra at 417, 89 S.Ct. 584; United States v. Harris, supra at 593, 91 S.Ct. 2075. The affidavit thus permits inferences that the informer was reliable and her information trustworthy. Aguilar v. Texas, 378 U.S. 108, 108-114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See United States v Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

2. There is not involved in this case (contrary to the defendant's contention) the right to the disclosure of the identity of an informer. Commonwealth v. Johnson, 365 Mass. 534, 545, 313 N.E.2d 571 (1974), citing Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). Commonwealth v. Ennis, 1 Mass.App. 499, 501-502, 301 N.E.2d 589 (1973). The question which the trial judge excluded was: "Your informant was not (D___ T___), is that correct?" At the bench conference which followed, defense counsel indicated that the reason for his question was that he had "represented (D___ T___); if she's the informant." The trial judge indicated his understanding of the disclosure requirement but stated, "Well, in this particular case it doesn't make any difference who the informer was." See Commonwealth v. Crespo, 3 Mass.App. ---, --- - --- ^f, 334 N.E.2d 641 (1975). The defendant made no attempt to suggest anything further which might indicate a use for the name of the informer. See Commonwealth v. Swenson, 368 Mass. ---, --- - --- ^g, 331 N.E.2d 893 (1975); Commonwealth v. Vitello, 367 Mass. 224, 276, 327 N.E.2d 819 (1975). The defendant's contention, made for the first...