Commonwealth v. Harmon

826 N.E.2d 761, 63 Mass. App. Ct. 456, 2005 Mass. App. LEXIS 428
CourtMassachusetts Appeals Court
DecidedMay 6, 2005
DocketNo. 03-P-1339
StatusPublished
Cited by13 cases

This text of 826 N.E.2d 761 (Commonwealth v. Harmon) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Harmon, 826 N.E.2d 761, 63 Mass. App. Ct. 456, 2005 Mass. App. LEXIS 428 (Mass. Ct. App. 2005).

Opinion

Katzmann, J.

The defendant was convicted of being an accessory after the fact to murder.1 The case arose out of the events [457]*457surrounding the fatal shooting of Joseph Alemesis (victim) on February 2, 2001, in Lowell. Charles Byrd pleaded guilty to murdering the victim. The defendant, on appeal, challenges the sufficiency of an affidavit for a search warrant that turned up incriminating evidence, and the trial judge’s instructions to the jury on consciousness of guilt. We affirm the judgment.

1. Sufficiency of the affidavit, a. Facts. The defendant argues that the affidavit for the search warrant failed to establish probable cause to believe that the items sought would be found in the apartment. The warrant, issued around 1:00 a.m. on February 3, 2001, Usted, inter aha, a shirt, a pair of gloves, and a pair of blue jeans worn by the shooter, the gun used, and any physical evidence, such as blood or hair that might be connected to the shooting.2

Sergeant Thomas Sulhvan of the Massachusetts State poUce, an experienced homicide investigator, submitted the affidavit that supported the application for a warrant to search apartment 2 at 99 Jewett Street in Lowell, occupied by Ernesto Diaz.3 Based on information provided by other pohce officers, Sullivan described the investigation of the murder of the victim, and why there was probable cause that evidence of the murder would be found in apartment 2. As set forth in the affidavit, on February 2, 2001, at approximately 2:10 p.m., Lowell pohce responded to a 911 call at 239 Lakeview Avenue, a multifamily building in LoweU, where they found the victim, who had suffered a fatal gunshot wound to his head, lying in a pool of blood. The pohce learned from the victim’s niece that the victim had hved in an apartment at that address, and that just before he was shot, he had been in his niece’s second-floor apartment with a man subsequently identified by witnesses as Charles Byrd. Byrd was wearing jeans, a light-colored orange short-sleeved shirt, and black leather ski-type gloves. “Right after [Byrd and the victim] [458]*458left [his niece’s] apartment,” his niece and her boyfriend “heard a ‘BOOM’ followed by the beeping of the smoke detector.” The victim’s niece and her boyfriend rushed to the door of the apartment, opened it, and saw the victim lying in the hall “with blood all around him. His face and head were blown apart.” The victim’s brother, James, who also lived at 239 Lakeview Avenue, was inside his own apartment when he heard the gunshot, and immediately looked outside and saw three people running from the building. He recognized Byrd, another man he knew as “Tigger,” and a third man whose face he could not see.

According to Sergeant Sullivan’s affidavit, James said that his brother (the victim) was addicted to heroin, and that in the previous week, Tigger and a woman named Renee or Rachel had come to 239 Lakeview Avenue, and told James that they were looking for the victim, who they said had stolen $300 worth of heroin from them. They said that they were anxious to “get their hands” on the victim. When Nuon Tep (also known as “Tigger”) was interviewed by the police, he told them that he, Renee Daley, and Byrd had given the victim $300 to buy some heroin for subsequent resale, but that the victim had given them less than the expected amount of heroin. On February 2, at around 1:00 p.m., Tep said that Byrd and “Mike” (whom he would later identify from a photo array as the defendant) arrived at his house. The defendant was wearing leather gloves, and he showed Tep and Byrd a silver revolver which he pulled from his pants. They discussed going to the victim’s house “to scare him.” Byrd said, “Let’s go beat the shit out of [the victim].”

As described by Sergeant Sullivan, Tep, Daley, Byrd, and the defendant then proceeded to the victim’s apartment building. Once there, Tep, the defendant, and Byrd went to the victim’s door. At this point, Byrd had the gun in his pants. Tep heard a gunshot and the three men ran to a car in which Daley was sitting. Once inside the car, Byrd said, “That’s what happens when people fuck with me.” Daley then dropped Byrd and the defendant “off on Jewett Street in Lowell near an apartment building in the vicinity of the public works department.”

Police officers set up surveillance in the area around 99 Jew[459]*459ett Street, a multi-unit apartment building. As a result of the surveillance, Ernesto Diaz, who lived in apartment 2 at 99 Jewett Street, was taken into custody on an unrelated matter. Diaz told the police that the defendant and Byrd had been inside his apartment earlier that evening, arriving between 5:30 and 6:30 p.m., and that they asked for a ride. Diaz arranged for his cousin, Danny Rivera, to drive the defendant and Byrd from his apartment at 99 Jewett Street to the Burlington Mall, in a car registered to Diaz’s girlfriend.

Rivera, in turn, told the police that at around 6:00 p.m., he drove the defendant and Byrd to the Burlington Mall. At the mall, the defendant bought some hair dye, a package of hair combs, and a brush from a CVS pharmacy (CVS). From Burlington, Rivera drove the defendant and Byrd back to Lowell, where the two men left the car, leaving behind the CVS bag with the merchandise and the receipts.

Based on his training and experience, Sergeant Sullivan noted that persons participating in the commission of a violent crime are “often in contact with the physical surroundings in a forceful or otherwise detectable manner. When they do so, those persons often transfer evidence to surfaces that they come in contact with at other locations.” He stated that attempts are often made to alter, destroy, and cover up evidence following the commission of violent crimes. However, “traces may be left in the form of blood, physiological fluids and secretions, hair, fibers, [and] gunshot residue.”

Based on the foregoing information contained in Sergeant Sullivan’s affidavit, the search warrant for apartment 2 at 99 Jewett Street was issued and executed on February 3. Among the items found by the police were a white plastic bag containing a pair of tan trousers and a Hawaiian shirt; a pair of gloves; various documents addressed to the defendant or containing the defendant’s name; and the gun identified as the murder weapon.

b. Discussion. The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that warrants issue only upon probable cause. Probable cause to believe a person is guilty of a given crime does not, without more, create probable cause to search. Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986). In [460]*460determining whether there was probable cause for a search warrant to issue, the reviewing court does not examine the facts subsequently revealed; instead “our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four comers of the affidavit.’ ” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). Commonwealth v. Hardy, ante 210, 211 (2005). To give rise to probable cause, an affidavit must contain information allowing the issuing magistrate to determine that the items sought are. related to the crime being investigated, and that these items “reasonably may be expected to be located in the place to be searched.” Commonwealth v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

COMMONWEALTH v. LINK L., a Juvenile.
Massachusetts Appeals Court, 2025
Commonwealth v. Pedro Gomez.
Massachusetts Appeals Court, 2023
Commonwealth v. William Mejia.
Massachusetts Appeals Court, 2023
Commonwealth v. Martinez
71 N.E.3d 105 (Massachusetts Supreme Judicial Court, 2017)
Commonwealth v. Morris
991 N.E.2d 1081 (Massachusetts Supreme Judicial Court, 2013)
Commonwealth v. Escalera
970 N.E.2d 319 (Massachusetts Supreme Judicial Court, 2012)
Commonwealth v. Monteiro
951 N.E.2d 989 (Massachusetts Appeals Court, 2011)
Commonwealth v. Legette
28 Mass. L. Rptr. 585 (Massachusetts Superior Court, 2011)
Commonwealth v. Young
931 N.E.2d 494 (Massachusetts Appeals Court, 2010)
Commonwealth v. Anthony
883 N.E.2d 918 (Massachusetts Supreme Judicial Court, 2008)
Commonwealth v. Rabb
873 N.E.2d 778 (Massachusetts Appeals Court, 2007)
Commonwealth v. Luthy
866 N.E.2d 930 (Massachusetts Appeals Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
826 N.E.2d 761, 63 Mass. App. Ct. 456, 2005 Mass. App. LEXIS 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-harmon-massappct-2005.