Com. v. Penta

• Decision Date: 22 August 1996
• Citation: 423 Mass. 546,669 N.E.2d 767
• Parties: COMMONWEALTH v. Anthony PENTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 767

669 N.E.2d 767

423 Mass. 546

COMMONWEALTH v. Anthony PENTA.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 6, 1996.

Decided Aug. 22, 1996.

Frances L. Robinson, for defendant.

Gregory I. Massing, Assistant Attorney General, for Commonwealth.

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

ABRAMS, Justice.

After retrial, see Commonwealth v. Penta, 32 Mass.App.Ct. 36, 49, 586 N.E.2d 996 (1992), the defendant, Anthony Penta, was convicted of (1) trafficking in cocaine in excess of 200 grams, and (2) trafficking in cocaine in excess of twenty-eight grams. ¹ The defendant appeals alleging that: (1) the prosecutor interfered with his ability to procure a witness favorable to him; (2) his motion to suppress should have been allowed; (3) his convictions violate principles of double jeopardy; and (4) the judge erred in ruling that the drugs and certificates of analysis were admissible. We transferred the case to this court on our own motion. For the reasons stated in this opinion, we affirm the defendant's convictions.

After filing his appeal, the defendant obtained a stay of the appeal and filed a motion pursuant to Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), to vacate his sentence on double jeopardy grounds. The defendant's motion was denied. Appeal from that denial has been consolidated with the defendant's appeal from his convictions.

Facts. The evidence at the second trial substantially was similar to that presented at the first trial and recited in detail in the Appeals Court's opinion, Commonwealth v. Penta, supra at 37-40, 586 N.E.2d 996. We recite only the basic facts, supplementing when necessary in discussion of a particular issue.

In September, 1987, Jeffrey Mueller approached the Federal Bureau of Investigation (FBI) and offered to purchase drugs from Penta. The FBI referred Mueller to the State police. On two occasions, October 8 and October 22, 1987, Mueller, while under surveillance by the State police, purchased twenty-eight grams (one ounce) of cocaine from Penta. On the second of these occasions, Mueller wore a transmitter authorized by a previously obtained warrant. A tape recording was made of a conversation between Mueller and Penta on the afternoon of October 22, 1987, during which Mueller and the defendant discussed a sale by Penta of at least eight ounces (approximately 225 grams) of cocaine. The contemplated sale occurred on November 5, 1987.

Prior to Mueller's arrival at the meeting on November 5, 1987, the police obtained another warrant and again wired Mueller with a transmitter. Over the transmitter, the police heard discussion of the drug buy. They moved in and arrested the defendant while he was counting the money. ² The police then executed a search of the defendant's residence. ³ They seized 63.2 grams of cocaine, a cash box, a grinder, inositol powder (cocaine dilutant), pieces of window glass, a scale, and a pager from the defendant's home. The defendant's 1987 Mercury Cougar automobile also was seized.

1. Failure of Mueller to appear and testify at trial. The defendant argues that his convictions must be reversed because he was unable to procure Mueller's testimony at his retrial. The defendant alleges that Mueller's failure to appear was due to obstruction by the prosecutor and therefore asserts his convictions must be reversed.

Because Mueller was not in the custody of the Commonwealth, ⁴ the Commonwealth had no affirmative duty to produce Mueller for trial. See Commonwealth v. Curcio, 26 Mass.App.Ct. 738, 747, 532 N.E.2d 699 (1989); United States v. Russo, 540 F.2d 1152, 1155 (1st Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d 611 (1976) "there is no absolute rule of production [of informant]"); United States v. Williams, 496 F.2d 378, 382 (1st Cir.1974) (government's duty to keep track of or search for informant depends on many factors including extent of government control over witness, importance of witness's testimony, difficulty of finding witness; on timely demand, government only required to make affirmative showing satisfactory to court why it could not reasonably be expected to locate informant and that its conduct has been diligent). The Commonwealth's obligation was to provide the defendant with Mueller's last known address and to refrain from obstructing the defendant's access to Mueller. See Commonwealth v. Curcio, supra ("The Commonwealth, neither by itself nor by connivance with the informer, was to put any obstruction between the defense and the informer, and it must offer the defense whatever information it had about the informer's location"). See also Commonwealth v. Manrique, 31 Mass.App.Ct. 597, 599-603, 581 N.E.2d 1036 (1991) (prosecution fulfils obligation by offering to provide all information as to latest location of informant). The Commonwealth has complied fully with the motion judge's direction to attempt to locate Mueller and provided the defendant with an address in Caribou, Maine. This address enabled defense counsel to initiate communication with Mueller.

The defendant, nonetheless, claims that the Commonwealth is responsible for his inability to secure Mueller's presence because of the Commonwealth's unexecuted threat to Mueller of a perjury prosecution. The record does not support the defendant's claim. The only "threat" made by the prosecutor was a request, made in open court at a hearing on reconsideration of the defendant's motion to suppress, that Mueller be given notice under G.L. c. 268, § 4 (1994 ed.), that his inconsistent testimony in two judicial proceedings could result in prosecution for perjury. ⁵ Mueller had previously acknowledged that he was aware of his rights and possible exposure to perjury charges and he was represented by counsel both before and during the hearing. There was no prosecutorial misconduct. Contrast Commonwealth v. Turner, 37 Mass.App.Ct. 385, 387, 640 N.E.2d 488 (1994) (prosecutor's threats made at a tavern to defense witnesses that "You better not show up in court," "I'll tear you apart," and "I'll end up putting you away too," violated the defendant's constitutional right to prepare a defense); United States v. Morrison, 535 F.2d 223, 225-227 (3d Cir.1976) (prosecutor's actions, after judge agreed to give witness warning as to rights, in subpoenaing defense witness to office and, in presence of three law enforcement officers [undercover agents in case], impressing on her dangers of testifying violated defendant's right to present witnesses). ⁶ Dismissal of the charges or reversal of the convictions is not warranted in these circumstances. See Commonwealth v. Turner, supra at 391, 640 N.E.2d 488; Commonwealth v. Lewin, 405 Mass. 566, 579, 542 N.E.2d 275 (1989), quoting Commonwealth v. Cronk, 396 Mass. 194, 198-199, 484 N.E.2d 1330 (1985).

2. Admissibility of evidence obtained through recording of transmissions received by transmitter attached to body of confidential informant. As part of a police investigation, State Trooper James R. White (White) applied for and received authorization from the court to transmit and record conversations between then-confidential informant, Jeffrey Mueller, and the defendant by means of a transmitter secreted on Mueller. On two dates in October, 1987, White obtained warrants, issued under the authority of G.L c. 276, §§ 1 et seq. ⁷ ; G.L. c. 220, § 2 ⁸; and Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987), to seize and tape record oral communications between Mueller and the defendant. On both occasions, White attested that he had received the prior consent of Mueller, and, therefore, believed that the procedures of G.L. c. 272, § 99 (1994 ed.), did not apply.

General Laws c. 272, § 99 B 4 (1994 ed.), defines the term "interception" for purposes of § 99. It provides that "it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein." "[D]esignated offense" is defined in § 99 B 7 to include, inter alia, any offense involving the possession or sale of a narcotic or harmful drug in connection with organized crime as defined in the preamble. In the preamble, organized crime is defined as consisting of "a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." See Commonwealth v. Thorpe, 384 Mass. 271, 281, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). The record reveals that Trooper White received prior authorization from Mueller, a party to the conversation, to record the conversation and that the recording and transmission was made in the course of an investigation of a designated offense, see Commonwealth v. Penta, supra at 43, 586 N.E.2d 996. We conclude, therefore, that the exception in G.L. c. 272, § 99 B 4, applies. ⁹ A warrant issued pursuant to G.L. c. 272, § 99, was not required in the circumstances of this case.

The defendant maintains that, even assuming a warrant under G.L. c. 277, § 99, was not required, the warrants that did issue were not valid as they purported to issue under the authority of G.L. c. 276, art. 14 of the Massachusetts Declaration of Rights, and the common law and none of those sources authorizes the seizure of oral communications through use of a hidden transmitter. ¹⁰ While it is true that G.L. c. 276 does not expressly provide for the seizure of oral communications, see G.L. c. 276, § 1 (defining property), it expressly states that "[n]othing in this section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General...