Com. v. Scala

• Decision Date: 30 April 1980
• Citation: 404 N.E.2d 83,380 Mass. 500
• Parties: COMMONWEALTH v. Francis SCALA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 83

404 N.E.2d 83

380 Mass. 500

COMMONWEALTH v. Francis SCALA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 1980.

Decided April 30, 1980.

Samuel E. Greydanus, III, Boston (Irving H. Sheff, Boston, with him), for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ. HENNESSEY, Chief Justice.

The defendant appeals his conviction for the unauthorized possession of amphetamine with intent to distribute. He contends that his motion to suppress evidence of the drugs seized at the time of his arrest should have been allowed. He bases his claim on principles of collateral estoppel and on the ground that the drugs were found incident to an unlawful arrest. He also argues that his motions to dismiss the indictment and for a directed verdict were erroneously denied. There was no error.

The facts, as established at the Superior Court hearing on the motion to suppress, are as follows. On October 6, 1977, Malden police obtained a search warrant for the search of "the entire apartment located on the second floor above a business establishment named Vincent's Hair Designs, said building numbered 340 Broadway, Malden, Massachusetts, and being a two story construction of brick and wood . . . ." The warrant authorized the search of certain persons and the seizure of certain household furniture, which allegedly had been stolen. Executing the warrant the same day, police officers found most, but not all, of the furniture they were seeking. During the search of a bedroom, the officers opened what appeared to be a closet door and discovered stairs leading to an attic. The only means of access to the attic was those bedroom stairs. One of the officers testified that he went upstairs and saw there an open paper bag containing numerous bottles of drugs. On the basis of the discovery of these drugs in the Malden apartment, the police obtained a warrant to arrest the defendant in Somerville on October 7, 1977. At the time of his arrest, the defendant was found to have twenty packets of amphetamine the subject matter of the present action on his person.

Prior to his trial on the felony charge in question, the defendant appeared in a District Court in Malden on two complaints arising from the seizure of drugs in the attic. The defendant's motion to suppress evidence of the drugs seized in the search of the apartment was allowed. ¹ Thereafter, the District Court judge found the defendant not guilty on one complaint and dismissed the other complaint for lack of probable cause.

Subsequently, the Commonwealth obtained an indictment against the defendant with regard to the amphetamine seized at the time of his arrest. The defendant brought a motion to suppress, arguing, as he does now on appeal, that under the principles of collateral estoppel the Commonwealth is bound by the District Court judge's ruling that the seizure of drugs in the attic was illegal and that, given the fact that this prior illegal search provided the probable cause for all that followed, the arrest warrant, the arrest, and the search incident to the arrest were also unlawful so as to require suppression of evidence of the amphetamine. The defendant also argued that, regardless of the applicability of collateral estoppel, the attic did not constitute part of the second floor apartment. Consequently, he claims that the search exceeded the scope of the warrant and that drugs found in the attic could not establish the probable cause basis for the arrest warrant pursuant to which the amphetamine was found. The defendant's motion was denied, as was his application for an interlocutory appeal before this court. Following his trial and conviction, the defendant sought review in the Appeals Court, which affirmed his conviction. Commonwealth v. Scala --- Mass.App. --- ^a, 392 N.E.2d 869 (1979). We granted the defendant's petition for further appellate review.

Although we reach the same result, our reasoning differs in two ways from that of the Appeals Court. First, we recognize only the double jeopardy underpinnings of criminal collateral estoppel without reaching the question of its possible due process justifications. Second, we consider and reject, under the substantial risk of miscarriage of justice standard, arguments with regard to the attic search that were not raised below. Like the Appeals Court, we conclude that the warrant designation of the entire second floor apartment encompassed the third floor attic and that the defendant's motion for a directed verdict and his motion to dismiss the indictment are without merit.

We turn first to consider the possible application of the doctrine of collateral estoppel to the instant case. ² Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Although first developed in civil litigation, collateral estoppel is relevant in criminal proceedings as part of the Fifth Amendment's guarantee against double jeopardy, applicable to the States through the Fourteenth Amendment. Ashe v. Swenson, supra at 445-446, 90 S.Ct. at 1195.

To prevail under the Ashe collateral estoppel doctrine, the defendant must have been placed in jeopardy twice for the same offense. See United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1265 (2d Cir. 1975), cert. denied sub nom. DiGiangiemo v. Olgiatti, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976). The defendant argues that the illegal attic search links his Superior Court felony conviction to his District Court misdemeanor acquittal so that the two offenses constitute "a single alleged criminal transaction," which the Commonwealth is precluded from relitigating. See Ashe v. Swenson, supra at 445 n.10, 90 S.Ct. at 1195. This argument is without merit. The two charges did not involve the same time and place, nor did they involve an "identical mass of a single drug." See Kuklis v. Commonwealth, 361 Mass. 302, 308, 280 N.E.2d 155, 160 (1972). The felony of which the defendant was convicted occurred in Somerville on October 7, 1977, and concerned the possession, with intent to distribute, of twenty packets of amphetamine. The misdemeanor of which he was acquitted related to the alleged possession, with intent to distribute, of talwin and allegedly arose in Malden on October 6, 1977. These are two separate offenses involving different sets of facts. They did not grow out of a single criminal transaction merely because the allegedly illegal attic search was a factor in each offense. ³ In light of the fact that the charged offenses transpired at different time and in different places and pertained to different types of drugs, the defendant's felony conviction, after his acquittal on the misdemeanor charge, did not implicate double jeopardy concerns. ⁴ See Commonwealth v. Lovett, 374 Mass. 394, --- ^b, 372 N.E.2d 782 (1978); State v. Doucet, 359 So.2d 1239, 1245, 1247 (La.1977) (on rehearing). Thus the Federal constitutional doctrine of collateral estoppel announced in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), does not aid the defendant.

It has been suggested, however, that the due process clause, independent of the double jeopardy clause, may embrace collateral estoppel safeguards. ⁵ United States ex rel. DiGiangiemo v. Regan, supra at 1265-1266. Influenced by collateral estoppel policy considerations, such as judicial inefficiency and the danger of prosecutorial harassment, as evidenced by the disparity of resources between the State and a criminal defendant, and the strain of a second prosecution in which the same nonjeopardy issues would be relitigated, the United States Court of Appeals for the Second Circuit stated in dictum that due process provides at least some collateral estoppel protection in criminal cases. Id. at 1265-1266, 1269. Even so, the Court was careful to limit such protection. It concluded that due process would forbid the relitigation by a State of an issue determined adversely to it in a suppression hearing only in those cases where the State had an opportunity for a full hearing and at least one appeal as of right. Id. at 1266.

These limiting factors were seemingly mandated by the passage in the Ashe opinion which described collateral estoppel as applying when "(an) issue of ultimate fact has once been determined by a valid and final judgment." See Ashe v. Swenson, supra 397 U.S. at 443, 90 S.Ct. at 1194 (emphasis supplied). The Court noted that "(f)actors supporting a conclusion that a decision is final for this purpose are 'that the parties were fully heard, that the court supported its decision with a reasoned opinion, (and) that the decision was subject to appeal or was in fact reviewed on appeal.' " United States ex rel. DiGiangiemo v. Regan, supra at 1265, quoting from Restatement (Second) of Judgments, § 41 (Tent. Draft No. 1, 1973). All these factors had been satisfied with regard to the suppression motion under consideration in DiGiangiemo. Id. at 1265. However, such is not the case here. First of all, we have no record of the District Court suppression hearing ⁶ and consequently cannot determine whether the ruling reflected a "full and careful determination of the issue(s)." See Watts v. United States, 402 F.2d 676, 685 n.24 (D.C.Cir.1968), rev'd on other grounds, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). At least one court has refused to hold a lower court's nonappealable ruling suppressing evidence in a nonjeopardy situation binding on the trial court when there was no record to support the prior ruling. See State v. Kangiser, 8 Or.App. 368, 371, 494 P.2d 450 (1972); State v. Stahley, 7 Or.App. 464, 468, 492 P.2d 295 (1971). See also State v. Swain, 267 Or. 527,...