Commonwealth v. Ortega

• Decision Date: 08 September 2003
• Docket Number: No. 01-P-802.,01-P-802.
• Citation: 59 Mass. App. Ct. 217
• Parties: COMMONWEALTH v. Ricardo ORTEGA.
• Court: Appeals Court of Massachusetts

Page 1

COMMONWEALTH

v. Ricardo ORTEGA.

No. 01-P-802.

Court of Appeals of Massachusetts.

May 13, 2003.

September 8, 2003.

Practice, Criminal, Assistance of counsel, Motion to suppress, Conduct of prosecutor, Argument by prosecutor, Required finding. Constitutional Law, Assistance of counsel, Search and seizure. Search and Seizure, Expectation of privacy. Controlled Substances.

Indictments found and returned in the Superior Court Department on September 29, 1999.

The cases were tried before Catherine A. White, J.

Barry P. Wilson for the defendant.

Steven E. Gagne, Assistant District Attorney, for the Commonwealth.

Present: Grasso, McHugh, & Mills, JJ.

GRASSO, J.

In this direct appeal from his conviction for trafficking in heroin, see G.L. c. 94C, § 32E(c )(1), the defendant contends that trial counsel was ineffective because he failed (1) to file a motion to suppress evidence seized during execution of a no-knock search warrant and (2) to call essential witnesses at trial. The defendant also maintains that the prosecutor's redirect examination and closing argument created reversible error and that the trial judge erred in denying his motion for a directed verdict.¹ We affirm.

Background. We recite the facts the jury could have found in the light most favorable to the Commonwealth, reserving further details for discussion in connection with the specific issues raised. Beginning in early January, 1999, New Bedford police Officer Troy Spirlet began surveillance of the defendant at 280 Acushnet Avenue, New Bedford. During the next three weeks, Officer Spirlet observed the defendant coming and going from the premises more than twenty-five times, often using a key to gain entry. On some occasions, Officer Spirlet followed the defendant from the premises to various locations and back to 280 Acushnet Avenue.

On February 5, 1999, Officer Spirlet obtained a no-knock search warrant for apartment 3H at 280 Acushnet Avenue that authorized the seizure of all drugs and materials related to the delivery or distribution of controlled substances. Officer Spirlet and three other officers executed the warrant the next day at approximately 8:00 A.M. Upon entry, they found the defendant, along with Kelly Rodrigues and their young daughter.

When the defendant saw the police, he ran down the hallway into the bathroom. After being subdued and handcuffed, the defendant indicated that he wished to cooperate and motioned his head towards a shoebox on a shelf in the closet. There the police found a large amount of heroin together with items commonly used in drug operations including a stamp, a cutting agent, a sifter, glassine packets, and small elastics. The police also seized 250 glassine packets of heroin on a counter in the kitchen, twelve boxes of glassine packets, marijuana in the refrigerator, and more than $1,000 in currency.

Also found were men's clothing and shoes, an envelope from the Registry of Motor Vehicles addressed to the defendant at the Acushnet Avenue address, other mail forwarded to him there, and bank statements in the defendant's name. At the time of the search, the defendant told the police that he lived at the apartment. Upon release from custody, the defendant signed a bail recognizance that listed 280 Acushnet Avenue as his residence.²

1. Ineffective assistance of counsel.

a. The failure to file a motion to suppress. The defendant maintains that counsel's failure to file a motion to suppress the drugs seized amounts to ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Specifically, he contends that probable cause to dispense with the common-law knock and announce requirement was lacking.³ See Commonwealth v. Cundriff, 382 Mass. 137, 147 & n. 15 (1980), cert. denied, 451 U.S. 973 (1981) (requires probable cause to believe evidence will be destroyed, suspect will escape, or announcement will result in violent resistance endangering safety of police or others). See also Commonwealth v. Macias, 429 Mass. 698, 704 (1999); Commonwealth v. Jimenez, 438 Mass. 213, 216-217 (2002).

Although challenging the no-knock feature of the warrant was one option to consider, it was not the only reasonable one. "Unless a tactical decision of trial counsel was `manifestly unreasonable when made,' we will not find ineffectiveness." Commonwealth v. LaCava, 438 Mass. 708, 713 (2003), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). "[W]e give trial counsel's tactical decisions due deference, and do not second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty." LaCava, supra at 713 (internal quotations and citations omitted). The assessment that the risk in seeking suppression might outweigh the benefit of denying the defendant's connection to the premises did not fall measurably below that of reasonably competent counsel and thus does not warrant reversal. See Commonwealth v. Rondeau, 378 Mass. 408, 412-413 (1979).

At trial, the centerpiece of the defense was disavowal of any connection to 280 Acushnet Avenue where the drugs and other indicia of distribution were found. Juxtaposed with this disavowal was the defendant's assertion that Rodrigues had a drug problem, had been arrested for a drug offense, and had a number of questionable men friends who stayed with her, any of whom could have been the owner of the men's clothing and the drugs.

In his testimony, the defendant explained that he had lived previously with Rodrigues at 379 Cedar Street, New Bedford, until October of 1998, when her heroin use, drug arrest, and unsavory male friends led him to leave. He then had moved to the Bronx, New York, where he lived at his mother's house with his new girlfriend. He had no ongoing relationship with Rodrigues other than through their daughter. He only went to the premises three or four times to visit his daughter who lived there with Rodrigues.

He denied living or keeping clothing or toiletries at the Acushnet Avenue apartment, denied having keys or paying any portion of the rent, and denied owning the men's clothing found there. All phone bills, gas and electric bills, and rental receipts for the apartment were in Rodrigues's name or that of another woman. Except for one occasion, on visits to his daughter the defendant stayed with a friend at 35 Rodney French Boulevard.

The defendant further testified that on the night prior to execution of the search warrant, he had arrived by bus from New York at about 10:30 P.M. and watched his daughter while Rodrigues went out with her new boyfriend. The defendant had fallen asleep on the couch around 11:00 P.M. He awakened the next morning when the police entered the premises. The 250 bags of heroin found in the kitchen were placed there some time after the defendant had fallen asleep. He never saw the marijuana found in the refrigerator. Upon his arrest a police officer said, "You're a hard person to find; you're always in New York."

Viewed as part of an over-all defense strategy, the determination not to risk undermining the defense of disavowing any connection to the apartment by filing a motion to suppress was not "manifestly unreasonable." See Commonwealth v. Rondeau, 378 Mass. at 412-413. "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002). To challenge the search and seizure of items from the third-floor apartment at 280 Acushnet Avenue, the defendant had the threshold burden of establishing that the government intruded in a place in which he had a reasonable expectation of privacy.⁴ See Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986); Commonwealth v. Carter, 424 Mass. 409, 411 (1997). "In connection with a suppression motion, a defendant has the burden of establishing that the government has intruded on his or her reasonable expectation of privacy, thus establishing that a search has taken place. Then, but only then, the government has the burden to show that its search was reasonable and therefore lawful." Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990). See Commonwealth v. Sespedes, 58 Mass.App.Ct. 907, 909 n. 3 (2003).

The rules of criminal procedure require that a defendant seeking suppression raise the issue by motion and supporting affidavit, upon personal knowledge, setting forth the factual basis for the motion. See Mass.R.Crim.P. 13, 378 Mass. 871 (1979); Commonwealth v. Robles, 48 Mass.App.Ct. 490, 491 n. 1 (2000); Commonwealth v. Zavala, 52 Mass.App.Ct. 770, 773-774 (2001). An affidavit from the defendant himself asserting a factual basis for a claimed expectation of privacy in the premises would put at some risk the defendant's chosen trial strategy of disavowing all connection to the Acushnet Avenue apartment or its contents and thrusting the blame in Rodrigues's direction. The defendant ran the risk of being impeached at trial with his supporting affidavit. See Commonwealth v. Rivera, 425 Mass. 633, 637-638 (1997). There was little likelihood that Rodrigues would risk inculpating herself to aid the defendant's cause.⁵

Even assuming that the defendant could have met his threshold burden of establishing that a search in the constitutional sense occurred, see Commonwealth v. Frazier, 410 Mass. 235, 243 (1991), the likelihood of the defendant's establishing the absence of probable cause to issue a no-knock warrant was at least open to question.⁶ Moreover, "evidence seized in violation of the law will be suppressed only if the violation is substantial or rises to the level of a Federal or State constitutional violation." Commonwealth v. Grimshaw, 413 Mass. 73, 77 (1992). Violation of the knock and announce requirement...