Commonwealth v. Magri

• Decision Date: 31 May 2012
• Docket Number: SJC–10885.
• Citation: 462 Mass. 360,968 N.E.2d 876
• Parties: COMMONWEALTH v. Anthony J. MAGRI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 360

968 N.E.2d 876

COMMONWEALTH

v.Anthony J. MAGRI.

SJC–10885.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued Nov. 9, 2011.

Decided May 31, 2012.

Elizabeth Caddick for the defendant.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

Between June and August, 2007, the city of Pittsfield experienced a string of break-ins in which personal property was taken from residences, unattended vehicles, and businesses. Jewelry, laptop computers, and household electronics were stolen from family homes; stolen personal credit cards were used to finance new purchases; and new and used items were stolen from local merchants. The defendant was indicted on thirty-two charges based on his alleged participation in the crimes. In January, 2009, a Superior Court jury convicted the defendant of twenty-three of the offenses.¹ In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed all but one of the convictions.²Commonwealth v. Magri, 77 Mass.App.Ct. 1117, 932 N.E.2d 311 (2010). We granted the defendant's application for further appellate review.

The defendant argues that he was unduly prejudiced by the joinder of the charged offenses in a single trial, and that inculpatory evidence that was discovered in a search of his bags violated his rights under the United States Constitution and the Massachusetts Declaration of Rights and therefore should not have been admitted. We conclude that the charges were joined properly for a single trial, but that the challenged evidence should have been suppressed. The convictions that relied on that evidence must be reversed.

Background. The testimony at trial came from police officers who conducted surveillance and investigated the crimes, two coventurers, victims (including employees of businesses that were robbed), and employees of businesses where stolen goods later were sold or recovered. During the summer of 2007, the Pittsfield police department investigated a series of residential burglaries and automobile break-ins. The crimes shared numerous similarities in terms of the methods used and the items taken. One or more individuals would enter a house while the occupants were away, typically during the daytime, gaining entry through an unlocked door or window. The stolen property, which could have been carried away in a bag by one person, included video game consoles, laptop computers, audio equipment, and cameras; collectibles, including designer watches and rare coins; assorted jewelry; and credit cards and identification. In one instance, a purse containing several credit cards was stolen during the day from an automobile parked on the street while its owner was at work. On three occasions, credit cards were used to make fraudulent purchases; a fourth such attempt was unsuccessful. Some of the stolen jewelry and watches were recovered by police from an area merchant.

Suspecting that the defendant was involved in the thefts, police placed him under surveillance. In August, 2007, a team of officers and detectives from the Pittsfield police department followed him and two companions, Stephanie King and Brian Signor, as the three walked a mile-long loop through residential and commercial streets. The defendant entered and left a number of stores, staying only briefly; sometimes he was accompanied by Signor, who would aid him in stealing items. On one occasion, King remained on the street as the defendant and Signor approached a house, knocked on the door, and then looked in through the windows; when the resident arrived home and asked what they were doing, the defendant pretended that he was looking for a particular person he thought lived in that house, and the three then proceeded on their way down the street.

Surveillance was in place on the afternoon of August 9, 2007, when the defendant approached an automobile parked in front of a drug store just after the driver had entered the store. With King and Signor acting as lookouts, the defendant reached through an open window and opened an interior compartment. At that point, the defendant, King, and Signor were arrested. King and Signor agreed to cooperate with police, and in statements made prior to trial, as well as in testimony at trial, each of them implicated the defendant in a number of crimes.

The Commonwealth's theory was that the defendant participated in the robberies to help finance his drug habit; King and Signor testified that the defendant regularly used “crack” cocaine with them. In support of that theory, the Commonwealth introduced evidence that, after gaining possession of the stolen items,³ the defendant would either trade them for drugs or try to sell them for cash to finance drug purchases. The manager of an electronics store testified that the defendant sold him a used video game console and games identical to those taken in one burglary. The proprietor of a local shop testified that the defendant sometimes offered her watches and jewelry that she eventually turned over to police, who determined that they were among the pieces stolen. Additionally, through the testimony of King and Signor, it was shown that the defendant used stolen credit cards to purchase a video game system and sneakers that subsequently were traded for drugs. Finally, there was testimony that the defendant arranged transactions in which a stolen laptop computer, bottles of liquor stolen from a package store, and a bag of charcoal stolen from a convenience store were exchanged for “crack” cocaine.

Discussion. 1. Motion to sever charges. The thirty-two indictments against the defendant were joined for trial pursuant to Mass. R.Crim. P. 9(a), 378 Mass. 859 (1979). The judge denied the defendant's pretrial motion to sever the charges for fifteen separate trials.⁴ The defendant maintains that the charges should have been severed because they “involved different crimes, times, locations, and victims,” and as the crimes were not planned together (and in some cases were crimes of opportunity that had not been planned at all), they could not have constituted a common plan or scheme. He claims also that concerns of judicial efficiency in this case were minimal, as the Commonwealth would not be required to present identical evidence at multiple trials, other than certain testimony of police witnesses, King, and Signor. We conclude that the charges properly were joined for trial.

“The determination whether joinder is appropriate is committed to the sound discretion of the trial judge.” Commonwealth v.Montanez, 410 Mass. 290, 303, 571 N.E.2d 1372 (1991). Where a defendant faces charges on related offenses, “[t]he trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.” Mass. R.Crim. P. 9(a)(3). Offenses are related, and thus properly may be joined, where the evidence “in its totality shows a common scheme and pattern of operation that tends to prove all the indictments.” ⁵Commonwealth v. Delaney, 425 Mass. 587, 594, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998), quoting Commonwealth v. Feijoo, 419 Mass. 486, 494–495, 646 N.E.2d 118 (1995). In deciding a motion to sever, a judge may consider factors such as the time and place of the charged offenses, see Commonwealth v. Delaney, supra; the presence of factual similarities suggesting a common modus operandi, see Commonwealth v. Ferraro, 424 Mass. 87, 89–90, 674 N.E.2d 241 (1997); ⁶ and whether evidence in the trial of one offense would be admissible in the separate trial of another, see, e.g., Commonwealth v. Feijoo, supra at 494, 646 N.E.2d 118. Cf. Mass. G. Evid. § 404(b) (2012) (otherwise inadmissible evidence of defendant's bad acts may be admitted to prove, inter alia, plan or motive). Additionally, the defendant “bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.” Commonwealth v. Gaynor, 443 Mass. 245, 260, 820 N.E.2d 233 (2005).

In denying the motion to sever, the judge determined that the defendant's alleged “crime spree” comprised similar offenses (theft of money or property, generally obtained by breaking into houses and automobiles) occurring within a limited geographic region during a two-month period, and noted that several of the offenses charged were perpetrated with the assistance of the same coventurers. He thus found the offenses linked by a similar modus operandi and concluded that joinder was appropriate.

We cannot say that this was an abuse of the judge's discretion. As stated, the theory of the Commonwealth's case was that the defendant stole valuables from individuals and businesses in Pittsfield to support a drug addiction. Although the charged offenses vary in several respects, they are connected by details that reveal a pattern of criminal activity. The burglaries that resulted in the charges of receipt of stolen property occurred mainly during the day, at times when homes and vehicles were unoccupied and where a house could be entered through an unlocked door or window, and the perpetrator of those crimes left a door or window open on departing the residence.⁷ Property stolen from individuals fell into one of three categories: valuables, such as jewelry and collectibles; portable electronic devices; or credit cards and identification, all of which could be carried away by a perpetrator on foot. Stolen jewelry and electronics were either sold to businesses for cash or traded for drugs, and with one exception, stolen credit cards were used to purchase new items that in turn were likewise sold or exchanged for drugs. Similarly, property was stolen from stores that could be traded for drugs or sold to businesses that bought items secondhand, in order to finance drug purchases. Thus, a...