Com. v. Stegemann

862 N.E.2d 381

68 Mass. App. Ct. 292

COMMONWEALTH v. Joshua G. STEGEMANN.

No. 05-P-738.

Appeals Court of Massachusetts.

Berkshire.

Argued August 14, 2006.

Decided February 22, 2007.

Brian J. Kelly, Sharon, for the defendant.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Present: LAURENCE, BROWN, & VUONO, JJ.

LAURENCE, J.

On September 13, 2001, Pittsfield police officers executed a search warrant at the 8 Oak Street apartment of the defendant, Joshua Stegemann. They found no drugs but seized cash in excess of $21,000, as well as a brown leather jacket that Stegemann had received as payment for cocaine at a controlled buy on September 7, 2001. They also discovered several bags of cocaine and "crack" cocaine (totaling over thirty-three grams) hidden in the building's cellar (the door to which was unlocked by a key taken from Stegemann when he was arrested shortly before the search).¹ That same day, police executed a search warrant at the residence of Stegemann's eventual codefendant, Franklin LaMountain, on South Mountain Road. Police there found, among other things, a small amount (.21 grams) of loose crack cocaine, a bag of marijuana, a large quantity of drug-related paraphernalia,² and a significant sum of cash.

Based on the evidence seized at his residence, as well as the evidence of Stegemann's September 7, 2001, sale of crack cocaine to a police informant in the presence of an undercover police officer, the defendant was indicted on one count of trafficking in cocaine (based on the drugs found in his cellar), one count of distribution of cocaine (based on the September 7 transaction), one count of possession of cocaine with intent to distribute (also based on the September 7 incident), three counts of school zone violation (related to each of the above-mentioned charges), one count of conspiracy to traffick in cocaine (with LaMountain), and one count of possession of a Class E substance, steroids.

Stegemann filed a pretrial motion to suppress the evidence seized on September 13 from his person, his apartment, and the cellar, which was denied on October 31, 2002. The Commonwealth's motion for joinder of Stegemann's case with that of LaMountain was allowed over the defendant's opposition. Subsequent to the allowance of the motion for joinder, but prior to Stegemann's trial, LaMountain pleaded guilty to the substantive charges against him.³ After a five-day jury trial, Stegemann was convicted on July 28, 2003, of all seven counts that were tried to the jury.⁴

Stegemann here argues that (1) the trial judge erred in denying his motion to suppress because the police lacked probable cause to search his residence, there being no nexus between the alleged illegal activity and his residence⁵; and (2) the judge also erred in denying his motion for a mistrial after the judge had unfairly prejudiced him by joining the substantive claims against him with those against LaMountain, thereby permitting the admission of evidence seized from LaMountain's residence in the case against Stegemann.

Background. 1. The motion to suppress. As always, we confine our review of the probable cause issue to the facts gleaned from the "four corners of the affidavit" supporting the warrant application for Stegemann's residence. Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003). That affidavit, dated September 13, 2001, by Pittsfield Detective Glenn Decker, set forth information garnered from several sources, including an unnamed reliable confidential informant; Kelly Carnute, an identified police informant and cocaine customer of Stegemann; and a controlled buy from Stegemann that occurred at Carnute's residence.

The confidential informant (whose past information had led to at least ten convictions for drug-related offenses) reported to Decker that, on or about June 30, 2001, while in North Adams with friends, the informant witnessed a friend meet with and purchase crack cocaine from Stegemann.⁶ The informant "engaged in conversation with Stegemann and the friend about the sale ... [and] also witnessed Stegemann conduct a second purchase [sic] with a white male." The informant mentioned that Stegemann drove to the location of the sales in a "green Jeep Cherokee type vehicle."⁷

Kelly Carnute was an admitted crack cocaine addict who supported her habit by shoplifting, by lending her car to drug dealers, and by allowing them, at times, the use of her apartment to "cook" crack cocaine (i.e., to process powder cocaine into solid crack pieces). On August 28, 2001, Carnute was arrested by Pittsfield police for shoplifting. After being advised of her Miranda rights, Carnute requested to speak with Decker, whom she had known for many years. On September 6, 2001, Carnute met with Decker and other officers and gave a detailed statement regarding Stegemann. She reported that Stegemann and his partner, LaMountain, were her current crack cocaine suppliers.⁸ She had known Stegemann for approximately four years. He began supplying Carnute with cocaine one year prior to his March, 1998, arrest for trafficking in cocaine.⁹ During that year, Carnute permitted Stegemann to cook crack cocaine in her apartment. Shortly after his early release from prison in March, 2001, Stegemann resumed supplying Carnute with crack cocaine, telling her that "he needed crack cocaine customers."¹⁰ He also gave Carnute's oldest daughter approximately two pounds of marijuana to sell. On another occasion he stored approximately four ounces of cocaine in the daughter's apartment.

The affidavit particularly recounted that:

"Carnute buys or receives cocaine from Stegemann or LaMountain or both on almost a daily basis for the past several months.... On many occasions Carnute will place a crack order with Stegemann and LaMountain will later arrive at her apartment and complete the sale. On many occasions LaMountain told Carnute that he had to go to his house before making his delivery to her. On another occasion Stegemann was in the process of cooking a large quantity of cocaine in his apartment on Oak Street when his parole officer arrived ... [but he] never discovered what Stegemann was doing...."

Both Stegemann and LaMountain would request that Carnute shoplift specific items to exchange with them for crack cocaine.¹¹ Recently, Stegemann had asked Carnute to steal a certain brown leather jacket from a T.J. Maxx store, but she had not attempted to shoplift the jacket because it had a security tag attached to it. Carnute also told police that Stegemann and LaMountain drove rental cars to deliver the cocaine and that they utilized telephones and pagers to conduct their business.

On September 7, 2001, Carnute met with undercover police officer Patricia Hill¹² of the Greenfield police department in order to assist the police in arranging a controlled buy from Stegemann.¹³ Hill and Carnute went to T.J. Maxx to purchase the brown leather jacket that Stegemann had desired. They then drove to Carnute's residence at 48 Hamlin Street, Pittsfield, where Carnute paged Stegemann in Hill's presence. Shortly thereafter, when Stegemann returned the call, Carnute informed him that "she and a friend [had] stole[n] the jacket for him." Stegemann responded that he was in "North Adams and would be at her [Carnute's] apartment as soon as he could." Upon Stegemann's arrival, Carnute introduced Hill as an old friend. "During their conversations Stegemann told them how busy he had been that day and commented that he did not have a chance to count his money." Stegemann then removed a large sum of cash from his pocket, which Carnute estimated to be at least $5,000. Carnute informed Stegemann that Hill knew how to remove security tags from clothing and had assisted her in shoplifting the jacket from T.J. Maxx. Stegemann expressed his approval, and the three ate dinner together.

After dinner, Hill inquired whether she could continue to steal items for Stegemann in exchange for cocaine, to which he affirmatively responded. Carnute asked Stegemann for one hundred dollars' worth of cocaine in exchange for the brown leather jacket that she had supposedly stolen for him. He offered instead to forgive a $120 debt Carnute owed to LaMountain for cocaine, but Carnute replied that she "wanted to keep the deals separate." Stegemann agreed and retrieved from the pocket of his pants a bag of crack cocaine and a bag of powder cocaine. The bag of crack cocaine contained at least ten individually packaged pieces of crack. Stegemann left three of the packages of crack cocaine on the kitchen table for Carnute and Hill and returned the remaining bags to his pocket. Police surveillants subsequently observed the vehicle Stegemann had used to travel to Carnute's apartment parked in front of his 8 Oak Street residence soon after his sale to Carnute and Hill.

On September 11, 2001, Carnute reported to Decker that both Stegemann and LaMountain had come to her apartment on the evening of September 7, 2001, and that on September 8, 2001, LaMountain again came to her apartment and supplied her with fifty dollars' worth of crack cocaine.

Based on the foregoing information, Decker concluded that "probable cause exists" to believe that Stegemann and LaMountain "are powder and crack cocaine dealers working together in Berkshire County." He summarized the highlights of his investigation as follows:

"That the men [Stegemann and LaMountain] deliver cocaine to their customers utilizing rental vehicles. That the men have delivered cocaine, either individually or together, to Carnute on almost a daily basis since shortly after Stegemann's release from prison.... LaMountain himself has told Carnute on several occasions that he had to go to his house just prior to cocaine sales to her.... At least Stegemann also conducts business in North Adams, Ma. Stegemann cooks powder cocaine into crack cocaine that is then sold by the men. The men exchange their product for either cash or stolen...