Com. v. Rabb

• Citation: 873 N.E.2d 778,70 Mass. App. Ct. 194
• Decision Date: 24 September 2007
• Docket Number: No. 06-P-1058.,06-P-1058.
• Parties: COMMONWEALTH v. Gregory A. RABB.
• Court: Appeals Court of Massachusetts

873 N.E.2d 778

70 Mass. App. Ct. 194

COMMONWEALTH v. Gregory A. RABB.

No. 06-P-1058.

Appeals Court of Massachusetts, Plymouth.

Argued April 11, 2007.

Decided September 24, 2007.

Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, DOERFER, & KATZMANN, JJ.¹

KATZMANN, J.

A jury in Superior Court convicted the defendant of trafficking in cocaine in an amount of one hundred grams or more, but less than 200 grams. Claiming that the search warrant affidavit did not pass muster, and that the evidence was not sufficient to convict him of constructive possession, the defendant appeals. While we are unpersuaded by the Commonwealth's claim that offensive collateral estoppel bars the search warrant challenge, we determine that the motion to suppress was properly denied, and affirm the judgment of conviction.

The road to this appeal has been a long and winding one. On February 1, 1994, the Plymouth police applied for, received, and executed search warrants for 31 Seaview Street, Plymouth, and unit six of the Bay View Motel, Kingston, with each warrant based on the same affidavit. At the time of execution of the Seaview Street warrant, the defendant, Gregory A. Rabb, and one Maurice Wynn were among five men arrested. When the Bay View Motel room search warrant was executed, the police recovered two "stashes" in two different places—one bag of 82.05 grams of "crack" cocaine was inside a wall heater, and the other bag of 31.02 grams of crack cocaine was at the bottom of a Loops cereal box. They also found a walkie-talkie radio tuned to the same frequency as one found at Seaview Street. A grand jury indicted the defendant for trafficking in cocaine in an amount of one hundred grams or more, but less than 200 grams, in violation of G.L. c. 94C, § 32E(b)(3). The defendant filed a motion to suppress evidence seized during the two searches, which was denied on March 22, 1996. Following a trial by jury, the defendant, as has been noted, was convicted as charged.²

On February 21, 1997, the trial judge allowed the defendant's motion for a required finding of not guilty and entered judgment for the defendant, setting aside the verdict. The judge agreed with the defendant that his plea of guilty in District Court to a charge of possession of cocaine with intent to distribute, prior to his trial of the trafficking indictment in Superior Court, barred prosecution of the indictment under double jeopardy principles. The Supreme Judicial Court subsequently vacated the judgment and reinstated the conviction. Commonwealth v. Rabb, 431 Mass. 123, 123-124, 725 N.E.2d 1036 (2000). On February 3, 2005, following the defendant's surrender on an outstanding warrant, a different Superior Court judge reimposed the defendant's sentence. On June 1, 2005, a single justice of this court allowed the defendant's motion to reinstate his direct appeal. After review, we affirm the order denying the motion to suppress as well as the order denying the motion for required finding of not guilty.

1. Collateral estoppel. While our primary inquiry is whether the affidavit accompanying the search warrant application established that the defendant's involvement in a cocaine distribution ring permitted an inference that he likely stored drugs or evidence relating to the distribution in his motel room, we must first address the Commonwealth's contention that the defendant is precluded by the doctrine of collateral estoppel from relitigating the validity of the search warrant. The Commonwealth's assertion arises from a Superior Court judge's denial (see note 2, supra) of a motion to suppress challenging the search warrant, filed by Maurice Wynn, a cohabitant of unit six of the Bay View Motel. The judge there denied Wynn's claim that the warrant failed to supply a sufficient nexus between the motel room and the drug-dealing activities. As has been noted, that denial was affirmed. Commonwealth v. Wynn, 44 Mass.App.Ct. 1114, 691 N.E.2d 250 (1998).

"Offensive collateral estoppel `occurs when a plaintiff seeks to prevent a defendant from litigating issues which the defendant has previously litigated unsuccessfully in an action against another party.'" Commonwealth v. Two Parcels of Land, 48 Mass.App.Ct. 693, 697, 724 N.E.2d 739 (2000), quoting from Whitehall Co. v. Barletta, 404 Mass. 497, 501 n. 9, 536 N.E.2d 333 (1989). As the Commonwealth notes, "[w]hether the common-law principle of offensive or non-mutual collateral estoppel can be asserted by the Commonwealth against a codefendant in a criminal case to preclude review of an issue is an unsettled issue." The doctrine of collateral estoppel, and its cousin, issue preclusion, have application to criminal cases. Commonwealth v. Williams, 431 Mass. 71, 74, 725 N.E.2d 217 (2000). It applies when the "issue of fact or law is actually litigated and determined by a valid and final judgment, . . . the determination is essential to the judgment," and the defendant had an opportunity to obtain review of the determination. Commonwealth v. Rodriguez, 443 Mass. 707, 710, 823 N.E.2d 1256 (2005), quoting from Cousineau v. Laramee, 388 Mass. 859, 863 n. 4, 448 N.E.2d 756 (1983). Moreover, it "usually applies only `where there is mutuality of the parties.'" Commonwealth v. Williams, 431 Mass. at 74, 725 N.E.2d 217, quoting from Commonwealth v. Benson, 389 Mass. 473, 478 n. 6, 451 N.E.2d 118, cert. denied, 464 U.S. 915, 104 S.Ct. 278, 78 L.Ed.2d 257 (1983). See Commonwealth v. Rodriguez, 443 Mass. at 710, 823 N.E.2d 1256 ("Collateral estoppel usually involves the application of issue preclusion in a subsequent action of a different claim between the same parties"). "`Fairness is the decisive consideration' in the use of offensive collateral estoppel." Commonwealth v. Two Parcels of Land, 48 Mass.App.Ct. at 698, 724 N.E.2d 739, quoting from Smola v. Higgins, 42 Mass.App.Ct. 724, 727, 679 N.E.2d 593 (1997). The court must be satisfied that the party to be estopped had a "full and fair opportunity to litigate the issue." Brunson v. Wall, 405 Mass. 446, 451, 541 N.E.2d 338 (1989) quoting from Fidler v. E.M. Parker Co., 394 Mass. 534, 541, 476 N.E.2d 595 (1985). The doctrine operates to protect the judicial system from redundant litigation, and to restrict or eliminate the possibility of conflicting results by different judges based upon the same facts and applicable law. At the same time, its application should "not . . . deprive a litigant of an adequate day in court." Restatement (Second) of Judgments § 27 comment c, at 252 (1982).

The defendant was not a party in Commonwealth v. Wynn, supra. While the Commonwealth concedes that the parties in Wynn are not the "same" as those in the present case, it asserts that due to their mutual interests in having the seized evidence suppressed, they are in privity. However, the Commonwealth cites to no cases permitting offensive collateral estoppel in Massachusetts criminal cases or, more on point, in a suppression context. We do not find the Commonwealth's argument here to be persuasive. A suppression hearing "is a critical stage of the prosecution which affects substantial rights of an accused person; the outcome of the hearing . . . may often determine the eventual outcome of conviction or acquittal." Robinson v. Commonwealth, 445 Mass. 280, 286, 837 N.E.2d 241 (2005), quoting from United States v. Green, 670 F.2d 1148, 1154 (D.C.Cir.1981). During a suppression hearing, facts regarding a search are established, and its legality is determined. See Robinson v. Commonwealth, 445 Mass. at 286, 837 N.E.2d 241, citing People v. Anderson, 16 N.Y.2d 282, 287-288, 266 N.Y.S.2d 110, 213 N.E.2d 445 (1965). Because a suppression hearing is a "critical stage" under Mass.R.Crim.P. 18(a), 378 Mass. 887 (1979), a defendant has a right to be present at such a hearing see Robinson v. Commonwealth, 445 Mass. at 285-286, 837 N.E.2d 241; Smith, Criminal Practice & Procedure § 1607 (2d ed.1983), and is entitled to the effective assistance of counsel at it. See United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Commonwealth v. Curtis, 417 Mass. 619, 635 n. 14, 632 N.E.2d 821 (1994). The importance of the suppression hearing is such that while a defendant may waive his right to be present at the hearing, that "does not imply waiver of . . . the right to the suppression hearing itself and the right to effective assistance of counsel at that hearing." Robinson v. Commonwealth, 445 Mass. at 288, 837 N.E.2d 241. The waiver of the right to be present is not readily presumed, and requires careful scrutiny by the judge.

These basic principles give context and perspective to the collateral estoppel claim before us, and inform our analysis. They contemplate protection of the defendant's interests in the critical stages of the criminal process, effective assistance of counsel, and, implicitly, the meaningful opportunity of the defendant to participate in the litigation of his defense. In criminal proceedings we emphasize that each defendant is entitled to individual consideration and to effective representation by individual counsel, and is further entitled to press litigation strategies with that counsel. There is no reason that these basic principles should not pertain to the litigation of a motion to suppress evidence. Moreover, even if we accepted the collateral estoppel argument in theory, as a matter of practical reality we would not conclude that the defendant and Wynn had such a close identity or mutuality of interests that it could be said that Wynn's litigation of the motion to suppress accorded the defendant a full and fair opportunity to litigate the matter. While each may have had the same goal—the suppression of the evidence found in the motel room—they differed in their alleged involvement in the cocaine distribution scheme, in the evidence attributed to...