Com. v. Ricci

• Decision Date: 16 January 2003
• Docket Number: No. 01-P-1256.,01-P-1256.
• Citation: 57 Mass. App. Ct. 155,781 N.E.2d 868
• Parties: COMMONWEALTH v. Vincent RICCI.
• Court: Appeals Court of Massachusetts

Page 868

781 N.E.2d 868

57 Mass. App. Ct. 155

COMMONWEALTH v. Vincent RICCI.

No. 01-P-1256.

Appeals Court of Massachusetts, Middlesex.

Argued November 14, 2002.

Decided January 16, 2003.

COPYRIGHT MATERIAL OMITTED

Paul J. Haley for the defendant.

Peter A. D'Angelo, Assistant District Attorney (Michael D. Friedland, Assistant District Attorney, with him) for the Commonwealth.

Present: GREENBERG, DREBEN, & MASON, JJ.

MASON, J.

After a jury trial in the Superior Court, the defendant was convicted of trafficking in cocaine in an amount of 200 grams or more. See G.L. c. 94C, § 32E(b)(4). On appeal, he claims that the judge erred in failing to grant his motion to suppress certain wiretap evidence and also cocaine and other evidence seized during a search of his residence pursuant to a warrant. He also argues that certain of the judge's instructions impermissibly shifted the burden of proof with respect to a defense he had raised, that the Commonwealth failed to provide him with certain materials necessary to his defense, and that he should have been permitted to remove the case to Federal court. The defendant separately argues in his own pro se brief that he was improperly prohibited from introducing certain evidence that was necessary to complete a conversation to which a witness had testified, and that the Commonwealth used false information to procure the wiretap warrant. We affirm the conviction.

Background. The judge did not make extensive findings of fact in ruling on the defendant's various motions to suppress, which principally raised questions of law. We recite the relevant undisputed facts elicited at the suppression hearing.

On January 24, 1995, United States postal inspectors intercepted an express mail package having a Florida return address and containing four kilograms of cocaine. The package was addressed to an "Alice Roberts" at 101 Fulton Street in Medford, but the resident of that address refused to accept the package and disclaimed knowledge of any Alice Roberts. In response to a telephone request from some individual to the South Boston postal annex, the package was redelivered to the Fulton Street address. It was accepted by a male who identified himself as Emanuel Costa.

Richard Prior, a State police trooper assigned to the Middlesex County narcotics unit, arrested Costa and, after informing him of his Miranda rights, asked him to explain how he happened to receive the package. Costa stated that, since August, 1994, an individual named Henry Festa had been paying him to receive such packages at the Fulton Street address and also at another location.

Medford police officers promptly initiated a surveillance at Festa's residence at 70 Palmer Street in Medford. At about 5:30 P.M., they observed a male, later identified as the defendant, stop a Lincoln Town Car in front of that address. Festa entered the car, stayed for just two minutes, and then left the car. The defendant drove away, and the car was subsequently observed parked in the driveway of the defendant's residence at 17 Short Street in Medford.

Trooper Prior decided to investigate both Festa and the defendant and, during his investigation, he was informed by a confidential reliable informant that the defendant was a major cocaine distributor who regularly sent his associates, including Festa and Costa, to Florida to arrange for cocaine to be sent back to Boston. Trooper Prior also found papers that were consistent with drug distribution records in the defendant's trash at his residence in Medford. An analysis of telephone billing records revealed that numerous telephone calls had been made from the defendant's residence to Florida, and that some of these calls had been made to the hotel at which Festa and Costa were staying in Florida.

Subsequently, on July 19, 1995, two Middlesex County assistant district attorneys, acting in reliance on a lengthy affidavit prepared by Trooper Prior detailing the results of his investigation, applied for and obtained a wiretap warrant from a Superior Court judge. That warrant only authorized the executing officers to keep track of the times, dates, and telephone numbers associated with incoming and outgoing calls of the home telephones of the defendant and Festa. Then the police learned that the defendant was also communicating with one Christopher Brunco, an individual whom State police officers at Logan Airport previously had stopped and questioned in connection with a suspicious round trip Brunco had made to Florida under an assumed name. The assistant district attorneys who had applied for the earlier wiretap warrant obtained, on September 8, 1995, from the same Superior Court judge, a warrant authorizing police investigators to use listening devices not only to track the calls involving the defendant's telephone, but also to listen to and record all such calls dealing with drug distribution. Thereafter, over the next several days, police investigators intercepted numerous calls indicating that Brunco had traveled to Florida and back to obtain a shipment of cocaine for the defendant, and that the shipment would be arriving in Boston on Thursday, September 14, 1995.

On the morning of Thursday, September 14, 1995, postal inspectors intercepted an express mail package, bearing a Florida return address, that an X-ray indicated was consistent with containing bricks of cocaine. The package was delivered to an address in Chelsea where it was accepted by a male who was known by the police to be associated with the defendant. On the same date, at 8:22 P.M., Brunco called the defendant at his home and, during the course of the conversation, asked, "What about the whatamacallit ... the ice cream?" The defendant responded, "Yeah, that's no problem." Brunco then asked, "What time," and the defendant responded, "Whenever you want it." Brunco then stated that he would stop by the defendant's home.

At this time, State police Trooper Robert McCarthy was conducting a surveillance of the defendant's home, and observed a number of cars coming to and going from the home. At about 8:45 P.M., he saw Brunco enter the defendant's home carrying an object.

Believing that cocaine had just been delivered to the defendant's home, and that there were a number of persons inside, the police determined that they should secure the home. Trooper Prior accordingly knocked on the front door of the defendant's residence and announced, "State police, open up." About a minute later, Trooper Stephen Matthews observed the defendant open a second-floor window and attempt to toss out a paper bag. Trooper Matthews yelled up at the defendant, "State police," and the defendant responded, "Fuck you." At this point, Medford police Sergeant James Grubb broke through the back door of the house with a battering ram.

About the same time, Brunco opened the front door and allowed Trooper Prior and several other officers to enter. Both the defendant and Brunco were arrested. The police found a handgun on the defendant. They also seized a paper bag in the upstairs room that the defendant had occupied when he was observed by Trooper Matthews.

Thereafter, Trooper Prior obtained a search warrant. The police conducted a search of the defendant's home pursuant to the warrant and discovered that the bag they had secured contained 496 grams of cocaine. They also discovered a scale, drug distribution records, plastic baggies, a large amount of cash and, floating in the defendant's toilet, a plastic bag.

At trial, Troopers Prior and Matthews, and also several of the other officers who had participated in the search of the defendant's home, testified to the foregoing events. The Commonwealth also called Henry Festa, Emanuel Costa, and Christopher Brunco as witnesses for the Commonwealth. Each of these persons testified that they had regularly received and distributed packages of cocaine for the defendant or his associates.

Testifying in his defense, the defendant did not deny that he had possessed cocaine on the day of the raid, but said that he had done so only because he was then working on an undercover basis with two agents assigned to the Boston office of the Federal Bureau of Investigation (FBI) to investigate and apprehend a major drug dealer in the Medford area. Allegedly, he had met with the agents just hours before the raid, and they had instructed him to begin buying a large amount of cocaine from the dealer, which he had in fact done immediately after the meeting. The defendant further testified that he had been engaging in similar activities with the FBI since 1992, and that both FBI agents knew that he was dealing in drugs in connection with these activities and had authorized him to do so.

In addition to presenting his own testimony, the defendant called the two FBI agents as witnesses for the defense. One testified that the defendant had in fact served as a confidential informant for the FBI since 1992, but that he had never authorized the defendant to deal in drugs, or otherwise violate the law, and did not know that he was doing so. The other agent similarly testified that he had never authorized the defendant to deal in drugs or otherwise violate the law.

The defendant also called Trooper Prior as a witness for the defense. Trooper Prior testified that he had met with one of the FBI agents called by the defense some time in February 1995, and had discussed with him the investigation Trooper Prior was conducting into the activities of Festa and the defendant, but that he had initiated the meeting only in response to information he had received that Festa (not the defendant) might be an informant for the FBI. Trooper Prior further testified that the agent had told him at that time only that the agent had never heard of Festa and that, while the defendant had been intercepted on a wiretap the FBI had been conducting of another individual, nothing on the wiretap was criminal and the FBI had nothing important to disclose...