COMMONWEALTH v. MYERS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial the defendant, David A. Myers, was convicted of trafficking in cocaine, trafficking in heroin, possession of marijuana with intent to distribute, and associated school zone charges. A panel of this court affirmed the judgments in an unpublished decision. See Commonwealth v. Myers, 85 Mass. App. Ct. 1117 (2014). Thereafter, the defendant filed three related motions for postconviction relief: a motion for a new trial; a motion to suppress evidence and for a consolidated Franks/Amral hearing, see Franks v. Delaware, 438 U.S. 154 (1978); Commonwealth v. Amral, 407 Mass. 511 (1990); and a motion to dismiss the indictments with prejudice due to egregious misconduct of the Commonwealth's agents. The same judge who presided at trial ordered the defendant to be transported to court for a hearing on his motions. After the hearing, the judge denied the motions in a detailed memorandum of decision. The defendant appeals. Essentially for the reasons stated in the judge's memorandum, we affirm.

The defendant's motions are all based on the premise that in obtaining the warrant to search his apartment, Everett Police Detective Richard Connor together with other officers invented an informant known as “XMAS” and then prepared a search warrant affidavit that included several fabricated controlled buys conducted with the nonexistent XMAS.² The defendant's assertion, if true, would certainly amount to egregious government misconduct and would, at the very least, warrant a Franks/Amral hearing. The judge found, however, that the defendant's claim was not supported by any evidence.

To be entitled to a Franks hearing, the defendant must make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks, 438 U.S. at 155-156. In addition, the false statement must be “necessary to the finding of probable cause.” Id. at 156.³ The judge found, however, and we agree, that the defendant failed to make a substantial preliminary showing that XMAS was fictitious.

In response to most of the defendant's numerous public records requests for information relating to XMAS, the Everett Police Department responded that the specific documents the defendant requested did not exist. However, in at least two letters included in the record, one dated July 5, 2016, and a second dated August 7, 2017, the department indicated that at least one record existed referring to the department's use of confidential informants in a multijurisdictional drug task force, including the individual involved in the defendant's case. The department withheld this record under the investigatory materials exemption of the public records law. See G. L. c. 4, § 7, cl. 26 (f). The department's responses thus do not support the defendant's claim that XMAS is fictitious, but rather indicate that XMAS exists and that the disclosure of his or her identity would compromise ongoing and future investigations. (We note that this appeal does not concern the propriety of the department's responses to the public records requests.)

“Mere suspicion that there was no informant, or that the informant's ‘reliability’ credentials have been misstated, or that his information was other than as recited by the affiant, is not enough to trigger an in camera hearing ․” Amral, 407 Mass. at 522. As the defendant's other motions and arguments depend on the nonexistence of XMAS, they are equally without merit and were properly denied.

Accordingly, the order denying the defendant's motions for new trial, to suppress and for a consolidated Franks/Amral hearing, and to dismiss the indictments with prejudice is affirmed.

So ordered.

Affirmed

FOOTNOTES

2.   A section of the defendant's brief concerns a second informant discussed in the affidavit, referred to as “reliable confidential informant (RCI),” whose existence the defendant also questions.

3.   The existence of XMAS was central to the affidavit's showing of probable cause. The existence of the second RCI was not. Only minimal, corroborating statements were attributed to this informant.