Commonwealth v. Cassino

• Decision Date: 08 April 2016
• Docket Number: SJC–11684.
• Citation: 474 Mass. 85,48 N.E.3d 27
• Parties: COMMONWEALTH v. Adam CASSINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 85

48 N.E.3d 27

COMMONWEALTH

v.Adam CASSINO.

SJC–11684.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 11, 2015.

Decided April 8, 2016.

Azi Safar for the defendant.

Zachary Hillman, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, with him) for the Commonwealth.

Present: GANTS, C.J., CORDY, BOTSFORD, LENK, & HINES, JJ.

Opinion

HINES

, J.

In August, 2011, a sixty-five year old woman was found dead in her apartment in the South Boston section of Boston. She was the victim of blunt force trauma caused by a baseball bat. The defendant, Adam Cassino, was indicted for the crime and a jury convicted him of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal, the defendant claims (1) error in the denial of his three motions to suppress evidence stemming from a claimed illegal search of his clothing and shoes that were stored in a secured area while he was civilly committed pursuant to G.L. c. 123, § 35

; (2) error in the presentation of deoxyribonucleic acid (DNA) results; (3) error in the failure to give a diminished capacity instruction; and (4) abuse of discretion in the judge's juror bias determination. We affirm the order denying the defendant's motions to suppress as well as the defendant's convictions, and we discern no basis to exercise our authority pursuant to G.L. c. 278, § 33E

.

1. Motion to suppress. a. Background. After the discovery of the victim's body on August 27, 2011, the police investigation soon focused on the defendant, the victim's neighbor, as a possible suspect. The investigation led police to the Massachusetts Alcohol and Substance Abuse Center (center) where the defendant had resided since August 24, 2011, after being civilly committed for drug treatment under G.L. c. 123, § 35

. On August 29, 2011, two days after the discovery of the body, two Boston police detectives went to the center to interview the defendant. While there, the detectives viewed the defendant's clothing and shoes and observed reddish brown stains on the shoes. On August 31, 2011, police applied for and obtained a warrant seeking the authority to search and seize the clothing and shoes. The affidavit submitted in support of the warrant application referenced the reddish brown stains. Later that same day, police seized the items from the center pursuant to the warrant.

On September 8, 2011, police submitted applications for two additional search warrants, one pertaining to the apartment where the defendant stayed on August 23, 2011, the night before he was apprehended for the G.L. c. 123, § 35

, civil commitment and the other for the defendant's primary residence. The affidavits accompanying both applications cited the forensic evidence obtained

from the defendant's shoes, including that DNA samples from the reddish brown stains matched the known DNA profile of the victim.

The defendant filed three motions to suppress, claiming, on State and Federal constitutional grounds, that the viewing of his clothing and shoes at the center was an illegal, warrantless search and that the three subsequent search warrants for the shoes and the two residences, based on that illegal “search,” lacked probable cause. As background for the analysis of this issue, we summarize the relevant facts from the affidavit submitted in support of the warrant application dated August 31, 2011, and from the undisputed testimony adduced at the hearing on the motion to suppress.

The last known contact with the victim occurred Monday evening, August 22, 2011, and the last outgoing call from her cellular telephone was the next afternoon. Police estimated that the murder occurred sometime between Monday and Tuesday evenings. During a search of the victim's apartment, police seized an empty bottle of Clonazepam that was issued to the victim on August 11, 2011, and initially contained ninety pills. Police believed, based on witness interviews,¹ that the victim had been having ongoing problems with the defendant and that he had stolen her prescription medication and other belongings in the past. A neighbor reported that the defendant stole prescription medicine from her that Monday. The defendant told police that he met with the victim that Monday evening to discuss buying pills. He stated that he would have purchased some, but he did not have any money.

Blood on the victim's hands and nails indicated that she struggled with, and possibly caused injury to, her attacker. Moreover, the police asserted in the search warrant affidavit that “the damage to the victim coupled by the amount of blood throughout the scene showed an extreme force which would have made it very difficult for any person involved, or even present, to avoid a transfer of some blood evidence to either themselves or their clothing or footwear.”

The defendant's mother told police that the defendant was taken into custody for civil commitment on a warrant of apprehension on August 24, 2011, a process she started the day before because of the defendant's substance abuse. The defendant arrived at the center with injuries to his hand and knee. The inner perimeter security commander for the center testified that booking and admission procedures require that the clothing and shoes of a person committed under G.L. c. 123, § 35

, be taken and stored in a secure property storage area. Property is returned to its owner after discharge, or it is transferred to follow the owner to any future confinement.

On August 29, 2011, two Boston police detectives interviewed the defendant at the center and requested to view the defendant's personal property.² A sergeant retrieved the property from the storage facility, opened the bag containing the defendant's clothing and shoes, and lifted the items out of the bag so that the detectives could view the items. As noted, reddish brown stains were visible on the defendant's shoes.

b. Discussion. “In reviewing a ruling on a motion to suppress, 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. Craan, 469 Mass. 24, 26, 13 N.E.3d 569 (2014)

, quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). We “make an independent determination of the correctness of the judge's application of constitutional principles.” Commonwealth v. Woods, 466 Mass. 707, 717, 1 N.E.3d 762, cert. denied, ––– U.S. ––––, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014), quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

The judge denied the defendant's motions, concluding that the defendant had no reasonable expectation of privacy in the clothing and shoes when the officers first observed them at the center and that all three warrants were supported by probable cause. On appeal, the defendant reprises his argument that the viewing of his personal items was a warrantless search that unlawfully infringed on his reasonable expectation of privacy and tainted the three warrant applications.

“Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights, subject only to ‘a few specifically established and well-delineated exceptions.’ ” Commonwealth v. Gouse, 461 Mass. 787, 792, 965 N.E.2d 774 (2012)

, quoting Commonwealth v. Bostock, 450 Mass. 616, 624, 880 N.E.2d 759 (2008)

. The defendant bears the “burden of showing that a warrantless search or seizure occurred.” Commonwealth v. Bly, 448 Mass. 473, 490, 862 N.E.2d 341 (2007), citing Commonwealth v. D'Onofrio, 396 Mass. 711, 714–715, 488 N.E.2d 410 (1986). “This question is analyzed under the familiar two-part query whether [the defendant] had a subjective expectation of privacy in the items seized, and if so, whether that expectation was reasonable objectively.” Bly, supra.

The defendant asserts that he had a subjective expectation of privacy that society would deem reasonable because he surrendered his personal property with the expectation the property would be returned to him. He asserts that the storage of his property in compliance with the center's policy created an involuntary bailment and the sergeant exceeded his authority by producing the items for viewing by detectives. The Commonwealth counters that any expectation of privacy the defendant may have had was not reasonable, analogizing to Commonwealth v. Silva, 471 Mass. 610, 619–620, 31 N.E.3d 1092 (2015)

, in which we considered whether a pretrial detainee who was on notice of the facility's policy treating detainee and inmate clothing as contraband has a constitutionally protectable privacy interest in such clothing. We held that there was not, because any expectation of privacy was not objectively reasonable under those circumstances. Id. Our decision in Silva is not dispositive, however, because the center had no policy treating the defendant's property as contraband. The center's policy specifically distinguishes between street clothes, shoes, and contraband.³

Although the defendant's challenge to the search warrant rests on the claim that the police viewing of his property was an illegal search, we bypass the issue because the legality of the search is not determinative of the propriety of the judge's order denying

the motion to suppress. The denial of the defendant's motions to suppress was proper under the principle that, “[e]ven though the exclusionary rule generally bars from admission evidence ‘obtained during an illegal search as fruit of the poisonous tree, evidence initially discovered as a consequence of an unlawful search may be admissible if later acquired independently by lawful means untainted by the initial illegality.’ ” Commonwealth v. Estabrook, 472 Mass. 852, 865, 38 N.E.3d 231 (2015)

, quoting Commonwealth v. DeJesus, 439 Mass. 616, 624, 790 N.E.2d 231 (2003). Accordingly, the evidence deriving from the defendant...