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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.
