Commonwealth v. Youngworth

• Decision Date: 05 June 2001
• Docket Number: No. 99-P-1257.,99-P-1257.
• Parties: COMMONWEALTH v. WILLIAM P. YOUNGWORTH.
• Court: Appeals Court of Massachusetts

55 Mass. App. Ct. 30

769 NE 2d 299

COMMONWEALTH v. WILLIAM P. YOUNGWORTH.

No. 99-P-1257.

Court of Appeals of Massachusetts, Norfolk.

June 5, 2001.

June 3, 2002.

Present: DREBEN, GRASSO, & BERRY, JJ.

Lisa Siegel Belanger for the defendant.

Brian A. Wilson, Assistant District Attorney, for the Commonwealth.

BERRY, J.

The defendant was convicted by a jury of possession of a stolen motor vehicle under G. L. c. 266, § 28.¹ His appellate issues are that (1) the identity of the informant described in the search warrant affidavit should have been disclosed; (2) his trial counsel rendered ineffective assistance by not pursuing a Franks or Amral hearing²; and (3) the prosecutor's closing argument was improper. We affirm.

1. Background of the informant information and the search warrant. On February 7, 1996, an informant told Detective Lally of the Boston police department about a plan in the works by which the defendant and three other men, while masked and armed with semiautomatic handguns, would rob an Oriental rug store in the Brighton section of Boston. The defendant was familiar with the target store because he operated an antiques store nearby. With one of the other conspirators, the defendant cased the store to appraise the rugs and check out potential security. The booty was to be fenced by the defendant. It was a part of the plan to steal a van to use for transporting the Oriental rugs. To that end, the informant and a confederate delivered to the defendant's home a stolen white Chevrolet Astro van, which was reported stolen by its owner on January 29, 1996. (For reasons that will become apparent in a moment, the loading capacity and make of the pilfered van were of more than stylish interest, but rather were a match to a white Chevrolet Astro van owned by the defendant's wife.) According to the information provided by the informant for the search warrant, the informant and another drove the stolen Astro to the defendant's farmhouse on January 31, 1996, where it was to be held for the planned robbery. The Astro was parked in the middle bay of the defendant's large garage. The informant and his companion then met with the defendant to discuss the matters afoot concerning the robbery plan. The defendant displayed semiautomatic handguns to be used in the robbery. The meeting then ended.

The planned robbery never occurred. Instead, within a week after the delivery of the stolen Astro, the informant turned to the State's side. On February 7, 1996, the informant met with the police and laid out the plan and the instrumentalities to be used to effect the heist, including information about the stolen Astro and guns being held at the defendant's house. On the same day the informant provided the information, February 7, 1996, the police obtained and executed a search warrant at the defendant's home. The stolen Astro was found in the garage. There was obvious damage to the steering column and ignition, including a hole through which the ignition could be jumpstarted. In addition, execution of the warrant yielded forty-five boxes of ammunition.

2. Disclosure of the informant's identity. The defendant contends the trial judge should have ordered disclosure of the informant's identity because the informant was a peg in a potential trial defense that the defendant was "set up." The defendant's theory goes something like this: The defendant surmises the informant was John Doe³ because Doe delivered the Astro to his house. If this guess had been confirmed by disclosure of the informant's identity, then, or so the defendant argues, he would have been able to advance a defense that Doe, who had pending unrelated charges, was seeking to curry favor with the government by a "set-up" of the defendant as the "fall guy." To do so, Doe misled the defendant and his wife to believe that the Astro rightfully belonged to Doe. Except for this set-up, the defendant had no idea the van was stolen. This claim of error in the nondisclosure of the informant — even if the informant was, in fact, Doe — does not work.

We state the pertinent principles concerning disclosure of informants and then explain why these legal principles did not warrant disclosure in this case. At trial, the standard for determining whether an informant's identity should be disclosed is predicated on a showing of materiality.⁴ "The cases that have required disclosure at trial have all done so on a standard of materiality or something roughly akin thereto." Commonwealth v. Lugo, 406 Mass. 565, 571 (1990). See generally Roviaro v. United States, 353 U.S. 53, 60-62 (1957).⁵ It is a general principle that materiality may exist "where the informer is an active participant in the alleged crime or the only nongovernment witness, [and] disclosure usually has been ordered" in such circumstances. Commonwealth v. Lugo, supra at 572.⁶ In addition, the "proper inquiry [at trial] concerns whether disclosure would have provided material evidence needed by the defendant for a fair presentation of his case to the jury." Id. at 574.

While a superficial cut appears to lend some depth to the proposition that the informant was subject to disclosure because he was an active participant when the Astro was delivered, a slightly deeper cut to the offense elements and their proof in this case (by independent evidence, including nongovernment witnesses) makes clear that the informant was neither an active participant in, nor a material witness concerning the crime of possession of the stolen motor vehicle. The elements of possession of a stolen motor vehicle under G. L. c. 266, § 28, require proof that (1) the vehicle is stolen, (2) the defendant possessed the vehicle, and (3) the defendant knew that the vehicle was stolen.⁷ See generally Commonwealth v. Johnson, 7 Mass. App. Ct. 191, 193 (1979). On these elements, the informant was not a material witness, for "[t]he Commonwealth [did] not need the testimony of the confidential informant at trial to prove its case on the possessory offense." Commonwealth v. John, 36 Mass. App. Ct. 702, 704 n.1 (1994).

The three elements of the possession offense were proved at trial without any material evidence involving the informant, who was not even actively present during the period of possession, having disappeared from the scene after the delivery. For the first element, the Commonwealth proved that the Astro belonged to another person, who reported it stolen. For the second element, the defendant's possession was proved at trial by evidence of the February 7 seizure of the Astro in his garage; evidence that the Astro had been held at the defendant's home for at least four days, which was established by the introduction of weather service records documenting six inches of snow on February 3, 1996, and the fact that there were no tire tracks from the garage door four days later, as of February 7; evidence that two of the defendant's employees had seen the Astro there; and the wife's admission that the Astro was held in their garage.

For the third element of proof, that the defendant knew the Astro was stolen, the Commonwealth's evidence was strong and again was independent of the informant's delivery of the van, rendering that act of diminished consequence. "[T]he trier of fact [may] infer knowledge [that a vehicle is stolen] from circumstantial evidence." Commonwealth v. Dellamano, 393 Mass. 132, 136 (1984). Here the circumstantial evidence proving that the defendant knew of the stolen nature of the van included observable damage to the ignition and steering column, which bore a hole indicating that the theft was accomplished by defeating the locking mechanism so as to enable ignition. In addition, the rightful owner's license plates had been removed from the Astro. That fact had relevance in connection with mysterious circumstances involving the plates registered to the wife's similar van, her loss of memory concerning what had happened to her "broken" white Astro, and why its plates were found in the garage nearby the stolen Astro — all of which gave rise to a strong inference that the wife's plates had been removed from her Astro in order to switch them to the stolen Astro. As a result of such a switch, if the police were to see the stolen Astro and run the plates, the resulting computer registration inquiry would not turn up the Astro, now re-attired with the wife's plates, as a stolen vehicle. Finally, the coup de grace establishing the defendant's knowledge of the van as stolen came from his efforts to elicit perjurious testimony from his two employees to explain away the van's presence. Bertrand Babbin, a reluctant witness who worked for the defendant's antiques business and lived at the house, testified that the defendant had solicited him to say that Babbin was responsible for renting out the garage bays. A Randolph detective who had interviewed Babbin testified that Babbin told him that the defendant had asked Babbin to testify that, when the Astro van was delivered, the defendant was not at home. Babbin declined the defendant's invitation to lie and, instead, testified that the defendant, and not Babbin, was responsible for any rentals of the garage. Anthony Velez, another employee of the defendant, described the defendant's fictitious explanation to him to the effect that the van belonged to a friend of the defendant and that he was considering purchasing it.

In light of all of this evidence, the informant's involvement in the "acquisition of possession [was] not crucial to a fair determination of the defendant's guilt." United States ex rel. Crawley v. Rundle, 312 F. Supp. 15, 17 (E.D. Pa. 1969).⁸ Put another way, the crime was a possessory offense and was proved long after the informant had left the scene. The informant was not "placed by the prosecution in a central role in the case" and thus was not "central to the defense." Contrast Commonwealth v. Choice, 47 Mass. App. Ct. 907, 909 (1999).

Furthermore, disclosure of...