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15-P-1219 Appeals Court
COMMONWEALTH vs. AYYUB N. ABDUL-ALIM.
No. 15-P-1219.
Hampden. December 13, 2016. - March 9, 2017.
Present: Milkey, Massing, & Sacks, JJ.
Firearms. Search and Seizure, Probable cause, Protective frisk. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Evidence, Exculpatory. Jury and Jurors. Practice, Criminal, Motion to suppress, Continuance, Jury and jurors, Deliberation of jury, Record.
Indictments found and returned in the Superior Court Department on January 19, 2012.
A pretrial motion to suppress evidence was heard by John S. Ferrara, J., and the cases were tried before Constance M. Sweeney, J.
James B. Krasnoo for the defendant. Alyson Yorlano, Assistant District Attorney, for the Commonwealth.
MASSING, J. The defendant, Ayyub Adbul-Alim, appeals from
his convictions of unlawful possession of a firearm and unlawful
possession of ammunition, aggravated by previous convictions of
a serious drug offense and a firearms violation. See G. L. 2
c. 269, §§ 10(a), 10(d), 10(h), 10G(a). He claims, as he did at
trial, that his prosecution was the result of a joint Federal
and State effort designed to coerce him to provide information
about the activities of potential Islamic terrorists in the
Springfield area. In light of this claim, he argues
specifically that (1) his motion to suppress the firearm and
ammunition should have been allowed, (2) the trial judge wrongly
denied his request for a continuance of the trial, (3) a
mistrial ought to have been declared after the jury reported a
deadlock, and (4) the trial judge thwarted appellate counsel's
efforts to obtain record documents. We affirm.
1. Motion to suppress. a. Background. The motion judge
found the following facts -- which the record supports and the
defendant does not challenge as clearly erroneous -- regarding
the search of the defendant's person.
The defendant had been married to Siham Nafi Stewart for
about two years. They lived with their young child in a second-
floor apartment on State Street in Springfield. During the
investigation of a murder in the apartment building, Stewart and
the defendant were identified as witnesses; Stewart met with a
Springfield police lieutenant. Days later, after hearing
gunfire in the apartment building, she called 911 and spoke with
the Springfield police officers who responded to her apartment. 3
"[C]oncerned for the well-being of her child and herself if
they continued to live with the defendant in that apartment,"
Stewart went to the Springfield police department "to disclose
that her husband, the defendant, was involved in drug dealing
and possessed a firearm." After speaking with a Springfield
police sergeant, she was introduced to another Springfield
officer, Ronald Sheehan, a twenty-five year veteran who was also
a member of the Federal Bureau of Investigation (FBI) joint
counterterrorism task force (task force), a joint effort of
Federal, State, and local law enforcement personnel. Stewart
told Sheehan that the defendant's supplier was a white male with
tattoos on his hand who drove a white Jeep Cherokee. She showed
Sheehan a photograph of the defendant's handgun. Sheehan
learned that the defendant had prior convictions for drug
trafficking and unlawful possession of a firearm, disqualifying
him from lawfully possessing a gun in Massachusetts. Stewart
and Sheehan had a number of in-person and telephone contacts
over the next two to three weeks leading up to the defendant's
arrest.
One evening in December, 2011, Stewart called Sheehan to
tell him that the defendant was about to meet his supplier at
the gasoline station next door to the apartment building.
Sheehan and two other Springfield officers, partners William
Berrios and Anthony Sowers, went to the location. Berrios and 4
Sowers saw a white Jeep Cherokee in the gasoline station parking
lot and parked their marked cruiser behind it.1
Sheehan then received a second call from Stewart. She told
him that the defendant had just left the apartment, was wearing
a red vest, and had his gun with him. Sheehan observed the
defendant leave the building, wearing a red vest or jacket, and
walk toward the gasoline station. He warned Berrios and Sowers
that the defendant was approaching and was armed. Berrios and
Sowers seized the defendant, each grabbing an arm, and Sowers
conducted a patfrisk. Finding nothing, he handcuffed the
defendant and placed him in the back of the cruiser.
Stewart, who observed the patfrisk from the window of her
apartment and did not see the officers remove the gun, called
Sheehan again and informed him that the defendant had placed the
gun in his underwear. Berrios and Sowers removed the defendant
from the cruiser, and Berrios conducted a more thorough
patfrisk. He felt a handgun in the defendant's groin area. The
officers returned the defendant to the cruiser, unzipped his
pants, and removed the gun.
b. Discussion. The defendant challenges his seizure and
search on two grounds. First, he contends that Stewart's tip
was unreliable. We disagree. This case does not involve an
1 The judge made no further findings regarding the white Cherokee or its driver. 5
unidentified informant -- Stewart was known to the police as the
defendant's wife. She had met with Sheehan many times and
provided details about the defendant's drug activity and his
supplier; she had even shown Sheehan a picture of the
defendant's handgun. "In these circumstances, [Stewart's] basis
of knowledge was established, and [her] report of [the defendant
leaving the apartment with] a firearm 'could be regarded as
reliable without any prior demonstration of [her] reliability.'"
Commonwealth v. Edwards, 476 Mass. 341, 346 (2017), quoting from
Commonwealth v. Gouse, 461 Mass. 787, 793 (2012). See
Commonwealth v. Atchue, 393 Mass. 343, 347 (1984), quoting from
United States v. Wilson, 479 F.2d 936, 940 (7th Cir. 1973)
(information provided by known citizens "carries with it indicia
of reliability"); Commonwealth v. Bakoian, 412 Mass. 295, 301
(1992) (informant revealed identity at time of tip, was known by
police, and gave precise information); Commonwealth v. Peterson,
61 Mass. App. Ct. 632, 635 (2004) (statements voluntarily made
to police by those with intimate knowledge of defendant).2
2 The defendant argues that the motion judge "significantly" omitted from his findings of fact Sheehan's testimony that he "wanted to obtain the information of the driver of the white Cherokee after I observed any particular transactions that might have occurred to validate some of the information that was being provided by Ms. Stewart." We do not agree that this testimony calls Stewart's reliability into question. Sheehan was concerned with validating the information Stewart had supplied about the defendant's supplier, which was less detailed and 6
Second, the defendant contends that his detention was no
longer justified after the initial patfrisk did not reveal a
gun. See Commonwealth v. Douglas, 472 Mass. 439, 445 (2015)
("any reasonable suspicion that either [of defendant's
passengers] had a weapon on his person was dissipated after the
patfrisks revealed no weapons"); Commonwealth v. Amado, 474
Mass. 147, 153 (2016) (where patfrisk, justified by officer
safety concerns, revealed no weapon, "the safety exigency
justifying a search of the defendant's person ended, as there
was no remaining suspicion that the defendant possessed a
weapon").
We need not address the motion judge's conclusion that the
continued detention of the defendant was proportional to the
level of suspicion the officers possessed, because we agree with
the judge's alternate rationale: that the police had probable
cause to arrest the defendant. See Commonwealth v. Santaliz,
413 Mass. 238, 240 (1992) (arrest and attendant search without
warrant must be based on probable cause); Commonwealth v.
Claiborne, 423 Mass. 275, 279 (1996) (police officers may arrest
without a warrant or probable cause that suspect has committed a
felony). "Probable cause to arrest exists where the facts and
circumstances in the arresting officer's knowledge and of which
reliable than the information she provided about her own husband. 7
he or she has reasonably trustworthy information are sufficient
to warrant a person of reasonable caution in believing that an
offense has been or is being committed." Commonwealth v.
Williams, 422 Mass. 111, 119 n.11 (1996).
Here, based on reliable, reasonably trustworthy information
obtained from the defendant's wife, further investigation of the
defendant's criminal record, and police corroboration of the
information Stewart provided contemporaneously as the events
unfolded, the officers had probable cause to arrest the
defendant for illegal possession of a firearm -- even before
Stewart's third phone call, telling them exactly where the gun
was hidden. Having an adequate basis on which to arrest, the
police had a right to conduct a search, not just a patfrisk.
See Commonwealth v. Ilges, 64 Mass. App. Ct. 503, 515-516
(2005). To the extent the search of the defendant could be
characterized as a strip search, it was justified by probable
cause. See Amado, supra at 154 (probable cause required for
strip search).
2. Withholding of exculpatory evidence; denial of motion
for continuance. The defense at trial was that the Springfield
police framed the defendant on firearm charges to create some
leverage so that he would agree to become an informant for the
FBI task force regarding activities at the Islamic mosque and
community center that the defendant frequented. The defendant 8
testified that the police planted a gun on him, that he was
approached by an FBI agent after the arrest, and that he had
previously been approached by the same agent at his mosque. To
support this defense, the defendant called Sheehan as a witness.
Sheehan testified that after arresting the defendant, he
contacted an FBI special agent, his supervisor at the task
force, who came to the police station to speak with the
defendant. Sheehan and the FBI agent asked the defendant to
become an informant, but he was not interested. Sheehan further
testified that the task force made total payments of $11,495 to
Stewart over several months, beginning five months after the
defendant's arrest. However, Sheehan denied that the payments
were for information regarding the defendant.3
The defendant asserts that the Commonwealth failed to
produce in discovery exculpatory materials in the possession of
the FBI or, in the alternative, that the trial judge should have
allowed his motion for a continuance to allow him to continue
his pursuit of FBI records through a Freedom of Information Act
(FOIA) request. Indeed, if the prosecution of the defendant was
the result of a joint State and Federal effort, he would be
entitled to exculpatory evidence in the possession of both State
and Federal law enforcement personnel involved in the
3 During cross-examination by the defendant, Stewart admitted receiving payment from the task force at some point after the defendant's arrest. 9
investigation. See Commonwealth v. Daye, 411 Mass. 719, 734
(1992); Commonwealth v. Lykus, 451 Mass. 310, 326-328 (2008);
Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("the individual
prosecutor has a duty to learn of any favorable evidence known
to others acting on the government's behalf in the case,
including the police"). See also Mass.R.Crim.P. 14(a)(1)(A), as
amended, 442 Mass. 1518 (2004) (prosecutor's discovery
obligation extends to relevant items and information "in the
possession, custody or control of the prosecutor, persons under
the prosecutor's direction and control, or persons who have
participated in investigating or evaluating the case and either
regularly report to the prosecutor's office or have done so in
the case").
Thus, if Sheehan's discussions with Stewart about the
defendant or the firearms charges were the result of a joint
State and Federal investigation, the Commonwealth would be
obligated to produce discovery material in the possession of any
State or Federal officers involved in the investigation.
Likewise, if the Springfield police planted a gun on the
defendant as part of a joint counterterrorism effort to coerce
the defendant to become an informant, the Commonwealth would
have an obligation to disclose that. However, the Commonwealth
denies that the defendant's arrest was the result of any joint
effort, and our examination of the record provides us with no 10
basis to question this assertion or the motion judge's
conclusion that no joint investigation occurred.4 To the extent
the defendant seeks or possesses new information, not included
in the record, to challenge this conclusion, his remedy is to
file a postconviction motion in the Superior Court, where such
facts can be developed and considered. See Commonwealth v.
Caillot, 449 Mass. 712, 724 n.8 (2007); Commonwealth v. Camacho,
472 Mass. 587, 598 (2015); Commonwealth v. McCormick, 48 Mass.
App. Ct. 106, 107 (1999).
Similarly, we do not discern an abuse of discretion in the
trial judge's decision not to permit a further continuance of
the trial to await the result of the defendant's FOIA request.5
The Commonwealth produced all the information it was required to
produce, including records of payments to Stewart, and the
defendant was able to vigorously pursue his defense. Again, to
4 Notwithstanding the absence of evidence of a joint investigation, the motion judge not only permitted the defendant to obtain discovery from Sheehan about his dealings with the defendant, but also ordered the Commonwealth to produce the following materials relevant to the defendant's claims: "(1) [a]ny notes of Officer Sheehan re: his interview of defendant on date of arrest; (2) any notes of other officers who sat in on interview; (3) and reports, notes or documents of Officer Sheehan's communications with other members of Joint Task Force within 24 hours (before & after) of defendant's arrest; (4) to the extent that those records are 'Joint Task Force' records, any requisite request for cooperation is hereby made to [F]ederal authorities." 5 The trial had already been continued for two months, in part to accommodate the defendant's FOIA request. 11
the extent the defendant now possesses documentation from the
FBI demonstrating that his defense was materially prejudiced, he
must first make this claim in the trial court.6
3. Jury deadlock. The defendant claims that the judge
erred by sending the jury back to deliberate without their
consent after two communications of deadlock. See G. L. c. 234,
§ 34. He further contends that the judge's giving the Tuey-
Rodriquez instruction7 with knowledge of how the deliberations
were trending -- the jury reported moving from a six-six split
to a nine-three vote in favor of conviction -- was unduly
coercive. Because the defendant did not raise these claims at
trial, we review to determine whether any error created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Figueroa, 468 Mass. 204, 223 (2014). We discern no error.
"If, after due and thorough deliberation, the jury twice
advise the judge that they are unable to reach a verdict, the
judge may not properly send the jury out again without their
consent, unless the jury ask for some further explanation of the
law." Commonwealth v. Jenkins, 416 Mass. 736, 737 (1994),
6 We deny the defendant's motion to expand the record to include documents obtained from his FOIA request on the ground that such materials were not part of the trial court record, see Mass.R.A.P. 8, as amended, 430 Mass. 1601 (1999), and that he must first present such materials in the trial court. 7 See Commonwealth v. Tuey, 9 Cush. 1, 2-3 (1851); Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973). 12
citing G. L. c. 234, § 34. "The decision as to when the jury's
deliberations have been 'due and thorough' lies within the
discretion of the judge." Commonwealth v. Carnes, 457 Mass.
812, 826 (2010). See Commonwealth v. Keane, 41 Mass. App. Ct.
656, 659 (1996) (because judge did not determine that jury had
deliberated in a due and thorough fashion until second report of
deadlock, judge did not err in sending jury out to deliberate
further without their consent). This determination "requires
evaluation of the 'complexity of the case, the extent of
evidentiary conflict on material issues, and the total length of
time the jury [have] spent attempting to resolve those
conflicts.'" Carnes, supra, quoting from Commonwealth v.
Winbush, 14 Mass. App. Ct. 680, 682 (1982).
The jury began deliberations in the early afternoon of the
third day of trial. After two hours and ten minutes, the
forewoman sent the judge a note reporting, "We are a hung jury
at this time. [Six] Guilty [Six] Not Guilty. Please advise."
Considering the brief duration of the deliberations in light of
the length of the trial, the judge concluded, "I certainly am
not finding that they are a hung jury at this time."8 The judge
8 The judge explained to counsel, "It's my inclination at this time -- it's twenty of four. I certainly am not going to find that the jury is hung. The case was impaneled on Thursday, it did not finish evidence until today. The jury has only been out for two hours. At the time this note was received, about two hours and ten minutes. . . . And, obviously, a two-hour 13
sent the jurors home for the day, informing them that they would
continue deliberating the next day with "a brief but hopefully
helpful instruction." She informed counsel that she would give
the "ABA ALI charge"9 the next day, and "[i]f they reported
deadlocked thereafter," and if she determined "there was an
actual deadlock report thereafter," she would then give the
Tuey-Rodriquez charge. Counsel did not object.
The next morning the judge gave the promised ABA charge and
the jurors continued to deliberate. At noon, the forewoman sent
another note: "We are stuck at [three] not guilty and [nine]
guilty. Please advise." The judge then gave the Tuey-Rodriquez
instruction, again without objection. The jury returned
unanimous guilty verdicts about two and one-half hours later.
After the verdict was recorded and the jurors excused, the
defendant asked the judge to poll the jury based on their
deliberation following a two-and-[one]-half-day trial is a small amount of time for a jury to declare that they are hung. So I certainly am not finding that they are a hung jury at this time." 9 The ABA charge, see Rodriquez, 364 Mass. at 102 (Appendix B), "is less emphatic than the amended Tuey charge and is intended for use either as part of the original instructions to the jury or as a supplemental instruction when the jurors appear to be running into difficulty reaching a verdict," Rodriquez, 364 Mass. at 101. 14
reported six-six and nine-three deadlocks. The judge denied the
request.10
The judge did not abuse her discretion in determining,
without objection, that deliberations had not been due and
thorough when the forewoman sent the first note. After what
amounted to two full days of trial (not including jury
selection) with eleven witnesses, the judge could reasonably
conclude that two hours and ten minutes of deliberations was not
due and thorough within the meaning of G. L. c. 234, § 34.
Although the judge did not use the words "due and thorough," her
refusal to find "that they are a hung jury at this time" clearly
implied such a finding. "[T]he judge could properly have
concluded, as [she] did in different words, that the brief time
spent in deliberations did not amount to 'due and thorough'
consideration of the case." Winbush, supra at 682. Cf.
Jenkins, 416 Mass. at 738 (giving Tuey-Rodriquez charge "implied
that the judge had concluded that the jury's deliberations were
'due and thorough,' in the words of § 34").
The defendant further argues that the Tuey-Rodriguez charge
was unduly coercive in the circumstances of this case because
"[a]ny effort by the court to persuade the jury to reach an
agreement after reporting its numerical split . . . may be
10 The judge did not abuse her discretion by denying the defendant's request. See Commonwealth v. Hardy, 431 Mass. 387, 399 (2000). 15
interpreted by the minority as an implied command to agree with
the majority." Smith v. United States, 542 A.2d 823, 824 (D.C.
Cir. 1988). We disagree. The amendments to the Tuey charge
made in Rodriquez were designed specifically to address the
imbalance created when the judge "invites the members of the
tentative minority to reconsider their position in the light of
the views of the tentative majority, but does not invite the
majority members to reciprocate toward the minority."
Commonwealth v. Rodriquez, 364 Mass. 87, 99 (1973).11 "There was
not the slightest intimation of impatience with the minority,
nor any words that could be construed as a threat or even an
expression of displeasure." United States v. Sawyers, 423 F.2d
1335, 1340 (4th Cir. 1970). Where, as here, the judge "urges
further deliberation in an effort to agree upon a verdict, and
in doing so [her] comments are balanced and not slanted toward
conviction, we are unable to perceive harm to the defendant."
Id. at 1342.12
11 Thus the judge instructed, consistent with Rodriquez, that "jurors for conviction ought seriously to ask themselves whether they may not reasonably doubt the correctness of a judgment which is not concurred in by others with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors." 12 The judge did not ask the jury to tell her how they were numerically divided, which is impermissible. See Brasfield v. United States, 272 U.S. 448, 450 (1926); United States v. Parsons, 993 F.2d 38, 42 (4th Cir. 1993), and cases cited. The 16
4. Appellate counsel's request for copy of entire trial
file. We find no basis to reverse the conviction on the ground
that the trial judge did not allow appellate counsel's request
for a copy of "the entire court file." The judge did not abuse
her discretion in denying the request, without prejudice, and
requiring appellate counsel ease the burden on the clerk's
office by making some effort "to identify particular pleadings
that are reasonably relevant to potential appeal issues."13 We
do not read Fitzgerald v. District Court Dept. of the Trial
Court, 471 Mass. 1001 (2015), as creating a rule of general
application requiring clerks' offices to provide every defendant
with "a copy of the entire record." See id. at 1002 ("If for
any reason the District Court clerk's office has not provided
him with a copy of the entire record, he is of course entitled
better practice -- especially after the jury had revealed its numerical division in the first note -- would have been to instruct the jury "never to reveal to any person -- not even to the Court -- how the jury stands, numerically or otherwise, on the questions before you, until after you have reached a unanimous verdict." 3 E.J. Devitt, C.B. Blackmar, & M.A. Wolff, Federal Jury Practice & Instructions, Civil § 74.08 (4th ed. 1987). See United States v. Hotz, 620 F.3d 5, 7 (1st Cir. 1980). To the extent the defendant asks us to make a rule that judges must instruct jurors never to communicate how they are split, we lack the authority to impose such a prophylactic rule. 13 The judge observed that this case had "a long, long docket," and that counsel's request included copies of "meaningless" papers such as requests for minor expenses that had been allowed. Nothing prevented appellate counsel from inspecting the file in the clerk's office and determining whether such documents truly contained relevant information. 17
to have it upon a proper request and the payment of any
applicable costs of reproduction"). The requirement of a proper
request and the payment of costs implies some degree of
reasonableness upon such requests. See G. L. c. 261, § 27C(4)
(indigent litigant entitled to any "document, service or object"
that the court finds "reasonably necessary to assure the
applicant as effective a prosecution, defense or appeal as he
would have if he were financially able to pay"). In any event,
the numerous pretrial hearings, trial, and posttrial transcripts
and the voluminous record appendix filed in this appeal belie
any suggestion that the clerk's office failed to cooperate with
appellate counsel.
Judgments affirmed.