Com. v. Villella

• Citation: 657 N.E.2d 237,39 Mass.App.Ct. 426
• Decision Date: 17 November 1995
• Docket Number: No. 94-P-826,94-P-826
• Parties: COMMONWEALTH v. Donald R. VILLELLA.
• Court: Appeals Court of Massachusetts

Page 237

657 N.E.2d 237

39 Mass.App.Ct. 426

COMMONWEALTH v. Donald R. VILLELLA.

No. 94-P-826.

Appeals Court of Massachusetts Essex.

Argued Sept. 19, 1995.

Decided Nov. 17, 1995.

Richard C. Chambers, Everett, for defendant.

Susanne G. Levsen, Assistant District Attorney, for Commonwealth.

Before BROWN, PORADA and FLANNERY, JJ.

PORADA, Justice.

The defendant, after a jury-waived trial in the jury session of the Peabody Division of the District Court, was convicted of possession of marijuana with intent to distribute and distribution of marijuana. On appeal he challenges the denials of his motion to suppress, his motion for a rehearing of that motion, his motion for a required finding of not guilty, and his motion in limine to strike the certificates of analysis. We affirm the convictions.

1. Motion to suppress. The defendant contends that we should reverse the decision of the District Court judge denying his motion on the grounds that the magistrate lacked probable cause to issue an anticipatory search warrant, and the motion judge made erroneous findings of fact. The defendant argues that the officer who submitted the affidavit accompanying his application for a search warrant did not establish the veracity or reliability of the confidential informant upon whom he relied for information that the defendant was selling marijuana out of his home. The affiant admitted that the reliability of the confidential informant had not yet been proven, but stated that the informant had supplied detailed information about the defendant, some of which the affiant had verified. While police corroboration of details furnished by an informant can establish his reliability and basis of knowledge, Commonwealth v. Warren, 418 Mass. 86, 89, 635 N.E.2d 240 (1994), the affiant did not rely solely on his corroboration of several of the details furnished by the informant. Rather, he outlined a controlled buy to be supervised by him in which the informant would buy marijuana from the defendant at his residence through an intermediary in the same way that the informant claimed he had done in the past.

It is well settled that a controlled buy supervised by police provides probable cause to issue a search warrant. Commonwealth v. Luna, 410 Mass. 131, 134, 571 N.E.2d 603 (1991). Commonwealth v. Warren, 418 Mass. at 89, 635 N.E.2d 240. The defendant argues, however, that that principle is inapplicable here because the buy was not made by the informant but rather an intermediary, who himself was not subject to search before or after the alleged buy. The defendant overlooks our holding in Commonwealth v. Tshudy, 34 Mass.App.Ct. 955, 615 N.E.2d 583 (1993), in which we held that a controlled buy conducted by an intermediary who was not subject to search before or after the buy but was under police surveillance during the buy provided probable cause to issue a search warrant. Such was the case here. We therefore conclude that the circumstances of the controlled buy were sufficient to establish probable cause for the issuance of the search warrant. ¹

The defendant claims that the motion judge's decision should be reversed because of his finding that "[t]he informant's tip was based on actual knowledge and personal observation of a prior sale to him of marijuana by this Defendant." We conclude that that finding is erroneous only in so far as it suggests that the confidential informant bought marijuana directly from the defendant rather than through an intermediary as set forth in the affidavit accompanying the search warrant. Notwithstanding this misstatement, his other findings support his conclusion, and in any event, this misstatement is of no consequence because we are in as good a position as the motion judge to examine the four corners of the affidavit. Commonwealth v. Cefalo, 381 Mass. 319, 328-330, 409 N.E.2d 719 (1980). As noted, we are of the opinion that the affidavit was sufficient to support the issuance of the warrant.

2. Denial of a rehearing of the motion to suppress. The defendant claims that the judge in the jury-of-six session erred in declining to hear his motion to suppress. There was no error.

The defendant filed his initial motion in the Lynn Division of the District Court where the motion was heard and denied. Thereafter, the defendant claimed his right to a first instance jury trial, and the case was transferred to the Peabody Division of the District Court jury-of-six session. The defendant refiled his motion to suppress in the jury-of-six session. The judge in the jury session declined to rehear the motion.

At the time the motions were filed, the district courts in Essex County were governed by the one trial system established by St.1986, c. 537. In the circumstances described, the judge had the discretion to rehear the motion upon a showing that substantial justice required a rehearing. Id. at § 19. See also rule 4 of the Special Rules of Criminal Procedure for District Court Criminal Cases in Essex and Hampden Counties, effective July 1, 1987. No such showing was made by the defendant. The defendant raised substantially the same issues in his second motion as previously heard and ruled upon by another judge. Accordingly, the judge did not abuse his discretion in declining to grant a rehearing of the motion.

3. Motion for a required finding. The defendant argues that the evidence was insufficient to support his convictions. We disagree. Viewing the evidence in the light most favorable to the...