Opinion
No. 02-0129.
May 14, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL
INTRODUCTION
The defendant was convicted by a jury of first degree murder on March 16, 2005, after a trial held before the undersigned. Now before the Court is the defendant's motion for a new trial based on alleged ineffective assistance of her trial counsel. After a non-evidentiary hearing, the Court concludes that the motion raises no substantial issue. Accordingly, pursuant to M. R. Crim. P. 30(c)(3), the Court will rule without further hearing, based on the papers submitted. For the reasons that will be explained, the motion will be denied.
The defendant's motion claims ineffective assistance of trial counsel in two respects: (1) In moving to suppress evidence seized in a search of the basement of an apartment building owned by the defendant's mother, pursuant to the mother's written consent, counsel did not argue that such consent was insufficient to authorize search of the defendant's personal belongings; and (2) after cross-examination of the defendant's psychological expert, who opined that the defendant suffered from battered women's syndrome, trial counsel did not offer in evidence records of convictions of co-defendant Jamal Haith for violent offenses committed against the defendant. The Court will address these issues in turn. 1. The Motion to Suppress. A. Background.
The docket reflects that trial counsel filed a "Motion to Suppress Physical Evidence and All Statements," with an accompanying affidavit and memorandum, on January 27, 2004. The Court (Borenstein, J.) held an evidentiary hearing on that motion on October 1, 2004. The evidence presented at that hearing indicated, in substance, as follows.
After the murder of Manual Andrade on January 22, 2002, police obtained warrants for the arrest of Jamal Haith and this defendant. Sometime thereafter, police made contact with the defendant's mother, Henrietta Williams, and informed her of the outstanding warrant for her daughter. On February 20, 2002, Ms. Williams informed police that "someone might be staying in the basement" of a building she owned at 80 Morton Avenue in Medford. Asked if the person staying there was the defendant, Ms. Williams responded, according to the testimony of Trooper Jack Moran, that she "never saw Zeno at the building." At the request of Sergeant Robert Welch of the Stoughton Police Department, Ms. Williams gave police permission, both orally and in writing, to enter and search the basement of the building. At 4:00 p.m. on February 20, 2002, she signed a "Permission to Search" form. The form authorized police "to conduct a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property located at 80 Morton Ave., Medford," and further authorized police to "take from my premises and property any letters, papers, materials or any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation."
With that authorization, police went to 80 Morton Street in Medford on the same date. Following instructions received from Ms. Williams, they entered the basement through an unlocked rear door. The area was unfinished, concrete, "dark like a cellar," with "storage throughout." In the back police found "a mattress and some other clothing." In that area police found a letter signed by the defendant addressed to the District Attorney of Norfolk County, some credit cards belonging to the victim; a diary; and clothing. Police seized the items found. The testimony at the evidentiary hearing provides no further information regarding the manner in which police found these items; in particular, nothing in the evidence suggests that they were in any container.
Counsel points out references in the trial transcript to a paper bag and a plastic bag. Having presided at trial, the Court is well aware that the paper bag was a police evidence bag in which police collected the items at the scene, stored them, and later brought them to Court, and the plastic bag was a bag in which the prosecutor put the items at trial so that they could be marked jointly as a single exhibit, with the exhibit label affixed to the bag. The use of these containers at trial in no way suggests that the items were stored in any container in the basement where they were found.
Certain additional information, pertinent to the issues underlying the motion to suppress, was available to defense counsel through police reports, one of which the defendant has appended to her memorandum. That report indicates that on the afternoon of February 20, 2002, the defendant's sister called Stoughton Detective Robert Welch police and asked him to come to their mother's home in Brockton. Upon the arrival of Welch and other officers, the defendant's sisters reported that the mother owned a multifamily building in Medford, and that they had checked it in early February and found that "everything was fine," but when they visited on February 19, 2002, they observed clothing in the common cellar, including some that they recognized as belonging to the defendant. They reported that they had not seen the defendant, and did not know how long she had been there. The mother consented to the officers going there to search the basement.
At trial, Detective Welch testified that he first interviewed the defendant's mother in early February, 2002, and that he then received a call on February 20, 2002. As a result of that conversation, he and several other officers went to 80 Morton Avenue in Medford. They entered the "multifamily" building through the rear door and went into the cellar, which he described as "a common area where there's storage, and there's a back room to the left in the back." There he observed "clothing, a mattress, and some personal effects, as if somebody was living there." The officers looked through the items and found clothing, a credit card in the name of Manual Andrade, personal papers, and a letter.
State Police Trooper John Moran testified that he and the other officers went to the building, which was owned by the defendant's mother, entered the cellar, and found "a makeshift bed." He observed that "it was apparent that someone was living there." According to his testimony, the officers found "a Discover credit card that had the name of Manny Andrade on it," "some sort of diary, and also a letter to the District Attorney of Norfolk County." Through Trooper Moran, the Commonwealth offered in evidence the credit card, the letter, and bus ticket receipts in the name of Manual Andrade for travel on January 29 and February 1, 2002, as well as a note with a Fayetteville, North Carolina, telephone number on it, all also found in the basement. Fayetteville was where Jamal Haith had been found and arrested. The diary was not offered in evidence. The letter addressed to the Norfolk District Attorney generally pointed to a person other than the defendant and Haith as the murderer; its primary evidentiary significance was its inconsistency with the defendant's version of events as presented in her interview with police and in her trial testimony.
In support of her motion the defendant offers an affidavit of her present counsel, asserting that counsel spoke with trial counsel, who stated that "he had not considered" making the argument the defendant now offers, but that he "preferred not" to provide an affidavit. Counsel also asserts that she spoke with the defendant's mother, who indicated that "she realized that the defendant was staying in the basement of the home she owns in Medford the day before she called police and gave them permission to look for the defendant there," but did not return the draft affidavit counsel sent her. The defendant has not supplied any affidavit of her own.
B. Discussion.
The defendant argues that her counsel was ineffective in failing to argue, at the hearing on the motion to suppress, that her mother's consent to search the basement of the building she owned was insufficient to authorize a search of the defendant's personal belongings found in that location. To warrant a new trial on that theory, the defendant would have to show that such an argument would have been meritorious, and that the failure to make it, and thereby to obtain suppression of evidence resulting from that search, created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Anderson, 445 Mass. 195, 211 (2005); Breese v. Commonwealth, 415 Mass. 249, 256 (1993). The defendant has not made that showing.
To prevail on a motion to suppress evidence, the defendant would have to have established, first, that she had a reasonable expectation of privacy in the location searched. See Commonwealth v. Carter, 424 Mass. 409, 411-412 (1997); Commonwealth v. Welch, 420 Mass. 646, 653-654 (1995); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991); see also Commonwealth v. Lodge, 431 Mass. 461, 474 (2000). To make that determination, a court considers the character of the location involved, including whether the defendant owned it or controlled access to it, and whether it was freely accessible to others. Id. at 302. Here, the area in issue was a basement of a building the defendant did not own, in which she had no lease, tenancy or other property interest. Tenants of the building had access to the area for storage; members of the defendants' family had access for maintenance or other purposes; and others could obtain access by entering through an unlocked door, as the police did upon instruction from the defendant's mother. Under these circumstances, any subjective expectation of privacy the defendant may have had was not reasonable, and she had no basis for suppression, regardless of any issue with respect to the scope of her mother's authority to consent.
The defendant attempts to establish a basis for her expectation of privacy by characterizing herself as a guest; she contends that by failing to call police for up to a day after learning of her presence, her mother implicitly consented to her staying in the basement. The effort fails on both factual and legal grounds. The materials before the Court do not establish that the defendant's mother knew she was staying in the basement and delayed contacting police. At best, the record indicates that the defendant's sisters saw her clothing and a makeshift bed, and thereby inferred her presence, and that sometime within the next twenty-four hours they passed on that information to their mother, who notified police within that time period. Even if, however, the mother became aware of the defendant's presence on the afternoon of February 19th, and waited a full day before notifying police, that hardly constitutes consent such as to give rise to a reasonable expectation of privacy. The defendant has identified no authority to support her suggestion that such passive sufferance for a period of hours transforms a squatter into a guest. Compare Minnesota v. Olson, 495 U. S.91, 99 (1990) (houseguest relies on permission of owner, who shares home and privacy).
Even if the defendant's theory could have gotten over the first hurdle, it would have failed against the evidence of her mother's free and unlimited consent. See Welch, supra, 420 Mass. at 654; Commonwealth v. Deeran, 364 Mass. 193, 196 (1973); Commonwealth v. Ploude, 44 Mass. App. Ct. 137, 140 (1998). The defendant seeks to avoid this conclusion by suggesting that her mother's consent would not encompass her personal papers. The law is otherwise. See Deeran, supra. She argues also that her mother's consent would not extend to a closed container storing her personal belongings. Assuming that contention to reflect the law, see generally United States v. Infante-Ruiz, 13 F. 3d 498, 502 (1st Cir. 1994) (vehicle owner's consent to search did not encompass defendant's unlocked briefcase in locked trunk, which owner identified as defendant's), the record is devoid of anything to indicate that the defendant's belongings were in any closed container.
On this issue, the absence of an affidavit from the defendant is noteworthy; she would be in the best position to know whether she left her belongings in any closed container.
The defendant also invokes cases imposing limitations on inventories. Those cases are entirely inapposite. Inventories are limited by their purpose, to identify and document the contents of a vehicle or container that has come to be in police custody. For that purpose, police have no need, and therefore no justification, to examine personal papers. See Commonwealth v. Seng, 436 Mass. 537, 550-554 (2002). What occurred here was for investigative, not inventory purposes. The police were free to do anything reasonable to serve those purposes, within the broad scope of the consent given by the property owner. Nothing before the Court indicates that they in any way exceeded her consent.
2. Records of Haith's Convictions.
B. Background.
After her arrest on February 21, 2002, the defendant gave a statement to police, in which she reported that Haith had been physically abusive to her and to their children, and that, after the murder of Manual Andrade, which she attributed to Haith and another man, Haith forced her to accompany him out of the apartment and on a bus trip toward to North Carolina. At trial, Trooper James O'Leary recounted the defendant's statement. On cross-examination, defense counsel inquired on the subject of Haith's abuse of the defendant. O'Leary testified that "she described Jamaal as an evil and violent person," who had assaulted her on numerous occasions, and had also assaulted members of his family and had put their children in danger. In response to defense counsel's questions, O'Leary further testified that the defendant had told him that Haith had been arrested three times for battering her and the children, and that he had spent time incarcertaed as a result of being convicted for domestic abuse of her. Counsel then asked "[D]id you verify that she, indeed, was telling you the truth." Without objection, O'Leary responded "I verified that Mr. Haigh [sic] had spent time in the Plymouth House of Correction for — for battering — for domestic assault and battery" on the defendant.
During her case, the defendant offered the testimony of psychologist Ronald Ebert, who opined that the defendant suffered from battered women syndrome due to abuse by Jamaal Haith. Dr. Ebert based his opinion, according to his testimony, on "police reports of the crime and statements," "restraining orders and arrests involved with those restraining orders," "Department of Social Services investigations around those restraining orders," records from MCI Framingham and Taunton State Hospital, police reports of assaults on the defendant, and interviews with the defendant. After a general explanation of the phenomenon of battered women syndrome, Dr. Ebert was asked what evidence he had to substantiate his diagnosis of the defendant. The Commonwealth objected. At sidebar, the Court indicated that the witness would not be allowed to be a conduit for hearsay, and asked counsel "what exactly are your trying to get from him." Counsel responded that "All I will to try to get from him is that she had sleep disturbance, she has intrusive thoughts, she has —" The Court responded, "That's fine, You can get that, but not the contents of the records." Dr. Ebert then testified to the defendant's symptoms, which he characterized as demonstrating the components of the syndrome. In response to further questions from defense counsel, Dr. Ebert testified that women suffering from battered women syndrome often stay in the abusive relationship, either out of fear or out of a sense of responsibility for eliciting the abuse. The prosecutor then cross-examined briefly, eliciting, in substance, that Dr. Ebert's knowledge of the defendant's symptoms derived from her statements to him in two interviews in January and February of 2004, and that he had no way to determine whether a person being evaluated was exaggerating symptoms. On redirect, defense counsel asked, without objection, whether the records Dr. Ebert had reviewed were consistent or inconsistent with what the defendant had told him; he answered that they were consistent.
The defendant testified in her defense. She recited a lengthy history of Jamal Haith's abuse of her, beginning when she was pregnant with the couple's first child. She testified that "I basically thought it was my fault, so I just took it." According to her testimony, the abuse continued over a period of years, and included abuse of the couple's two children, on one occasion causing injuries leading to hospitalization of one child. The defendant testified that Jamal Haith was prosecuted and incarcerated for abusing her in about 2001, and that she had a restraining order against him in 2002. With respect to the murder, the defendant gave an account generally similar to the account she had given to police, including that Jamal Haith and Dedrick Cole committed the murder, and that Jamal Haith then forced her to leave the victim's apartment with him and travel with him toward North Carolina. On cross-examination, the prosecutor did not challenge the defendant's testimony regarding abuse by Haith, but did vigorously challenge her account of the events surrounding and after the murder.
In rebuttal, the Commonwealth called Jamal Haith's aunt Karen Moteiro. Monteiro testified that in January 2002, after Haith had been released from jail "on domestic violence," he stayed at her home, and that the defendant telephoned there looking for him shortly before the date of the murder.
In closing, the prosecutor argued that the defendant had made up her account of having been forced to leave with Haith and travel with him, and that instead the defendant had persuaded Haith to commit the murder, and had then traveled with him intending to go to Jamaica, but that she had returned to the Boston area after Haith's arrest in North Carolina. With respect to Dr. Ebert, the prosecutor argued that his opinion as to the effect of Haith's abuse on the defendant depended on the truth of the defendant's statements to him regarding her symptoms. The prosecutor never suggested that that abuse had no occurred.
B. Discussion
To warrant a new trial on this theory, the defendant would have to show that her counsel's failure to offer Haith's criminal records was ineffective — that is, that the records would have been admissible if offered, and that the failure to offer them was manifestly unreasonable — and further, that the lack of those records in evidence created a substantial risk of a miscarriage of justice. See Commonwealth v. Wilson, 443 Mass. 122, 136-37 (2004). Assuming that the records would have been admissible, the trial record establishes beyond any room for doubt that counsel's failure to offer them was entirely reasonable, and that the lack of the records had no effect on the outcome, because the substance of the information contained in them was fully presented to the jury, and was essentially undisputed. Two witnesses for the Commonwealth, including one of its primary investigating officers, testified that Haith had abused the defendant, and had been prosecuted and incarcerated for that conduct. The defendant confirmed that information, without challenge from the prosecutor. Records to provide further confirmation would have added nothing of substance.
CONCLUSION AND ORDER
For the reasons stated, the Defendant's Motion for a New Trial is DENIED .