Commonwealth v. Arruda
| Decision Date | 24 May 2021 |
| Docket Number | 20-P-223 |
| Citation | 99 Mass.App.Ct. 1126,170 N.E.3d 345 (Table) |
| Parties | COMMONWEALTH v. Derek ARRUDA. |
| Court | Appeals Court of Massachusetts |
After a jury trial in the Superior Court, the defendant, Derek Arruda, was convicted of trafficking in over 200 grams of cocaine, G. L. c. 94C, § 32E (b ).2 On appeal, the defendant claims (1) the judge erred in denying the defendant's motion to dismiss the indictments; (2) the judge erred in denying the defendant's motion to suppress; (3) the evidence was insufficient to sustain the defendant's conviction; and (4) the judge erred in denying the defendant's motion for new trial and abused her discretion by declining to hold an evidentiary hearing on the motion.3 We affirm.
Discussion. 1. Motion to dismiss indictment. The defendant argues that the integrity of the grand jury proceeding was impaired by references to both the probable cause determination in issuing the search warrant, and by the presentation of false and misleading evidence. We address each argument in turn.
a. Probable cause and search warrant. "In presenting cases to the grand jury the prosecutor ... must scrupulously refrain from words or conduct that will invade the province of the grand jury or tend to induce action other than that which the jurors in their uninfluenced judgment deem warranted on the evidence fairly presented before them." Commonwealth v. Favulli, 352 Mass. 95, 106 (1967).
As to the two references to probable cause, we see no error in the judge's ruling. Both references were explicitly limited to the need to establish probable cause to obtain a search warrant. Neither reference implicated the grand jury's functions.4 See Lataille v. District Court of E. Hampden, 366 Mass. 525, 532 (1974) (). Both references were used for the permissible purposes of providing context and showing that the police had followed proper procedures. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 260 (2011) ().5
As to the references to police compliance with the search warrant requirement, we again see no error. Those references also were used for the permissible purposes of providing context for how the evidence was obtained and showing that the police followed proper procedures. See McCollum, 79 Mass. App. Ct. at 260. See also Commonwealth v. Brzezinski, 405 Mass. 401, 402-403 (1989) ().
b. False and misleading testimony. The dismissal of an indictment for false or deceptive evidence requires proof of three elements: "(1) the [prosecutor] knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986). In reviewing the decision of a motion judge after a hearing on a motion to dismiss based on false or misleading evidence, "we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
The defendant first claims that the witness's testimony that "there [were] two controlled buys done from" the defendant's apartment was false because neither occurred in the apartment. The testimony was not false because the defendant left "from" his apartment for each controlled buy. In any event, the witness immediately elaborated about the circumstances of the two controlled purchases that occurred near, or a short distance from, the defendant's home.
The defendant's second argument is that the order of grand jury testimony would have misled the grand jury into believing a scale was found inside the defendant's home. Specifically, the defendant claims that because the prosecutor "sandwiched" a question about whether any scales were found between questions about what was found in the defendant's apartment, the grand jurors were given the false impression that a scale was found in the defendant's apartment.
We have reviewed the grand jury minutes, and we see no error in the judge's finding that the defendant did not establish that the officer's testimony was false on its face or that the prosecutor intentionally, rather than inadvertently, structured his questions to solicit false evidence for the purpose of obtaining an indictment. See Mayfield, 398 Mass. at 621. The officer did not explicitly say that a scale was found in the defendant's apartment or that only one scale was found in the garbage barrel. The testimony immediately preceding this concerned plastic bags found "[i]n the garbage," and the officer did not state whether the garbage was inside the defendant's apartment or outside of it. He later stated a scale was found in the outside trash. We concur with the judge that the prosecutor's questioning was simply inartful. We also agree with the judge's conclusion that the challenged testimony would not have made a difference in the grand jury's decision to indict because the evidence against the defendant was very strong. See id.
2. Motion to suppress. a. Probable cause to search defendant's apartment. The defendant argues that the affidavit in support of the application for a search warrant did not establish the requisite nexus between the defendant's apartment and drug dealing activity. "[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit,’ " such that we consider only the facts recited in the affidavit and "the reasonable inferences therefrom." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). To support a finding of probable cause, "the search warrant affidavit must establish a ‘substantial basis for concluding that evidence connected to the crime will be found on the specified premises.’ " Commonwealth v. Perkins, 478 Mass. 97, 104 (2017), quoting Commonwealth v. Tapia, 463 Mass. 721, 726 (2012).
Here, the search warrant affidavit established the requisite nexus. The affidavit detailed two controlled drug purchases that were executed in compliance with standard protocols by a known and reliable confidential informant. In both instances, the informant called the defendant's cell phone to buy cocaine from him, the defendant instructed the informant to meet him at a location near the defendant's apartment, the defendant left his yard shortly after these calls, went to the specified location, met briefly with the informant, and sold him cocaine. After one of these controlled purchases, the defendant returned directly to his apartment.
In addition to these two controlled purchases, the affidavit detailed additional police surveillance consistent with other drug sales. The affidavit describes that the confidential informant told the police that when the informant had previously purchased drugs from the defendant, the informant called the defendant and was "directed to an area near Myrtle Street in New Bedford, where [the defendant] will meet to conduct the transaction." The police observed instances consistent with this description, in which the defendant exited his yard, walked to a vehicle parked nearby, met briefly with an occupant of that vehicle, then returned to his yard. The police also observed vehicles park around the corner from the defendant's residence, the occupants exited those vehicles, walked directly to the defendant's residence and entered the yard, and then, within minutes, returned to their vehicles and left the area. In one of these instances, a police officer observed the driver of a vehicle registered to a man who had a record of several narcotics offenses follow this pattern. That officer, who had extensive experience and training in narcotic investigations, noted that this activity was consistent with narcotics distribution. He explained that individuals purchasing drugs would park nearby rather than in the immediate area of the drug dealer's residence, even though there was ample parking near the residence, to not arouse suspicion.
Police observation of two controlled purchases in which the defendant exited the yard of his residence shortly after making plans by cell phone to sell cocaine to an individual in a nearby location, combined with police observation of activities consistent with narcotics distribution in which suspected buyers entered the yard of the defendant's residence or the defendant briefly visited parked cars, are sufficient to establish a substantial basis for concluding that evidence of the defendant's drug-dealing activity would be found in his apartment. "A single observation of a suspect leaving his home for a drug deal may also support an inference that drugs will be found in the home where it is coupled with other information, such as statements from credible informants." Commonwealth v. Escalera, 462 Mass. 636, 644 (2012), citing Commonwealth v. Young, 77 Mass. App. Ct. 381, 383-384, 388 (2010). See Tapia, 463 Mass. at 726, quoting Escalera, supra (); Commonwealth v. Hardy, 63 Mass. App....
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