COMMONWEALTH vs. KEVIN E. JACKMON.

GELINAS, J. The defendant, Kevin E. Jackmon, appeals from

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his convictions for murder in the second degree; two counts of assault by means of a dangerous weapon [Note 1]; unlawful possession of a firearm; two counts of kidnapping; armed robbery while masked; use of a firearm while committing a felony; and fourteen counts of stealing by confining or putting in fear. The defendant alleges (1) that the trial judge improperly denied his motion to suppress; (2) that trial counsel was ineffective in failing to object to the jury instructions on felony murder; and (3) that when sentencing, the judge erroneously considered crimes of which the defendant had been acquitted and that resentencing is consequently required. After briefly rehearsing the facts, we consider each claim in turn.

Facts. On April 26, 1998, Jackmon and his accomplice, Demarco Traynum, entered a McDonald's restaurant in New Bedford and forced more than a dozen employees and customers, at gunpoint, into a small back office of the restaurant. They directed one McDonald's employee to bind the hands of some of the individuals held in the office and forced the assistant manager and another employee to empty the contents of the safe and the cash registers into a canvas sack. The robbery was interrupted by the arrival of two police officers, and a shootout ensued. In the course of the confrontation, Jackmon accidentally shot and killed Traynum. Subsequently, Jackmon seized two women, one of whom was six months pregnant, and escaped from the scene of the crime while holding the two women in headlocks and firing at the police. Jackmon later left the two women in a hotel in New York City and fled to North Carolina, where he was arrested nearly two months later after his photograph was aired on the television program "America's Most Wanted."

Motion to suppress. On June 25, 1998, a North Carolina magistrate issued a search warrant authorizing a search of 3033 Boone Trail, Raleigh, North Carolina, for the purpose of serving a Federal arrest warrant for unlawful flight to avoid prosecution on Kevin Jackmon. [Note 2] The detective who applied for the search

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warrant, a Raleigh police officer, submitted a sworn affidavit, [Note 3] on which the magistrate relied, to establish probable cause for the issuance of the search warrant. With the search warrant and the arrest

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warrant in hand, the Federal Bureau of Investigation agents and police searched 3033 Boone Trail in North Carolina. They found and arrested Jackmon and seized a forty-caliber Ruger pistol, a black pistol magazine loaded with ten forty-caliber rounds of ammunition, a box containing thirty-four rounds of forty-caliber ammunition, a North Carolina driver's license for Kevin E. Jackmon, a black metal device used to reload pistol magazines, and other documents belonging to Jackmon. The forty-caliber Ruger handgun fired the shot that killed the victim. Massachusetts renditioned and indicted. Jackmon alleged, in a motion to suppress, that the affidavit did not establish the requisite probable cause when gauged by the "totality of the circumstances" analysis required under North Carolina law. [Note 4] Jackmon also alleges that the court should have required the affidavit

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to meet a higher standard of reliability since the affidavit was based on information provided by an anonymous informant. A judge in the Superior Court denied Jackmon's motion to suppress. [Note 5] We affirm.

North Carolina law requires that " 'great deference should be paid a magistrate's determination of probable cause,' [although] this deference does not translate into an abdication of the court's responsibility to review the magistrate's determination." State v. Beam, 91 N.C. App. 629, 631 (1988), rev'd, 325 N.C. 217 (1989), quoting from State v. Arrington, 311 N.C. 633, 638 (1984). "[R]eviewing courts 'should not conduct a de novo review of the evidence to determine whether probable cause existed at the time the warrant was issued.' " Ellis v. White, 156 N.C. App. 16, 26 (2003), quoting from State v. Ledbetter, 120

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N.C. App. 117, 121-122 (1995). The North Carolina Court of Appeals has observed that "an arrest warrant issued by an independent judicial official is entitled to more deference than an individual law enforcement officer's assessment of the grounds for probable cause." State v. Whitehead, 42 N.C. App. 506, 511 (1979). [Note 6] Although the officer had as his ultimate purpose the arrest of Jackmon, the application here was not for an arrest warrant, but for a warrant to search certain premises for Jackmon's person, as there was already an arrest warrant in effect. [Note 7] Without concluding that the law with respect to search warrants, as opposed to that of arrest warrants, differs, we consider North Carolina's law with respect to search warrants. [Note 8]

In order to meet the probable cause standard for a search warrant in North Carolina, there must be "reasonable grounds to believe that the proposed search will reveal the presence of the objects sought upon the premises to be searched and that those objects will aid in the apprehension or conviction of the offender." State v. Marshall, 94 N.C. App. 20, 26 (1989).

The North Carolina General Statutes require that applications for search warrants "be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched." N.C. Gen. Stat. § 15A-244(3) (2004). The information must be sufficient to support an "independent judgment" on the part of the magistrate that probable cause exists. State v. Harvey, 281 N.C.

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1, 6 (1972). There is no probable cause unless the facts in the affidavit are such that a "reasonably discreet and prudent person would rely upon them." State v. Arrington, 311 N.C. at 636.

The affidavit presented to the magistrate "may be based on hearsay information and need not reflect the direct personal observations of the affiant." State v. McKinnon, 306 N.C. 288, 293 (1982), quoting from State v. Campbell, 282 N.C. 125, 129 (1972). However, hearsay information must meet a certain minimum level of reliability. Whereas Massachusetts requires that informant information meet both prongs of the United States Supreme Court Aguilar-Spinelli [Note 9] test, which directs that the affiant indicate the basis of the informant's knowledge and comment on the informant's reliability, North Carolina uses the "totality of the circumstances" test articulated in Illinois v. Gates, 462 U.S. 213 (1983), to assess whether or not the information provided is sufficiently reliable to support probable cause.

The totality of the circumstances analysis requires that the magistrate "make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983), quoting from Jones v. United States, 362 U.S. 257, 271 (1960). This test was adopted by North Carolina in State v. Arrington, 311 N.C. at 643, and involves "a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip." Illinois v. Gates, supra at 234. Although both prongs of the Aguilar-Spinelli test may still be considered, a deficiency in the showing under one prong may be compensated for by a strong showing under the other prong or by some other indicia of reliability, such as police corroboration of the facts given by the informant. State v. Earhart, 134 N.C. App. 130 (1999).

The standard for assessing reliability under the totality of the circumstances test is virtually the same whether the informant is

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known and confidential or anonymous. State v. Hughes, 353 N.C. 200 (2000). State v. Nixon, 160 N.C. App. 31, 34 (2003). With an anonymous informant, however, "overall reliability is more difficult to establish, and thus some corroboration of the information or greater level of detail is generally necessary." Ibid.

In considering both the sufficiency of the affidavit and the reliability of the informant, we must first evaluate probable cause in the context of the objective of the application for the warrant. In North Carolina, as in other jurisdictions, the bulk of search and seizure cases involve an evaluation as to whether an informant's tip established probable cause that a crime had been committed, or whether a tip was sufficient to justify a warrantless search. See, e.g., State v. Earhart, 134 N.C. App. 130 (1999); State v. Hughes, 353 N.C. 200 (2000); State v. McArn, 159 N.C. App. 209 (2003). Here, however, the application sought a warrant for locating a fugitive for whom a Federal felony arrest warrant had already been issued. The primary purpose of the search warrant here was to establish probable cause that the fugitive was present at a third-party's home.

"The fourth amendment prohibits the entry into a home in order to make a felony arrest, absent a valid search warrant, consent or exigent circumstances." State v. Johnson, 310 N.C. 581, 582 (1984), citing Steagald v. United States, 451 U.S. 204 (1981). Here the officers had both a search warrant for the location and an arrest warrant for the defendant. The informant's information, upon which the affidavit was based, needed only to establish probable cause that Jackmon was at 3033 Boone Trail, and not probable cause that Jackmon was a fugitive or had committed criminal actions.

We conclude that the affidavit is sufficient. The affidavit indicates that, in addition to a first-hand sighting, the informant also knew the name and address of the person with whom the defendant was staying. The informant apparently met with officers and identified the defendant in a photograph. Thus, the defendant's characterization of the informant as anonymous is erroneous. The police also independently verified that telephone calls from this address were going to someone known to the defendant (his girlfriend). Under either the Aguilar-Spinelli or

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the totality of the circumstances test, the affidavit demonstrated both a basis of knowledge and police corroboration more than sufficient to establish probable cause that the defendant was at 3033 Boone Trail. It was allowable to seize the items taken. The motion to suppress was properly denied.

Jury instructions. Jackmon claims that he was denied his constitutional right to effective assistance of counsel because his trial counsel failed to object to the court's instructions on felony-murder. We affirm the judge's denial of Jackmon's motion for a new trial on this ground.

In considering Jackmon's allegation, we must examine "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974).

The defendant claims that the trial judge's instructions on felony-murder failed to account for the defense, raised at trial, that the victim accidentally fell on his gun and killed himself. Although there is no question that accident is not a defense to felony-murder, see Commonwealth v. McCauley, 391 Mass. 697 , 704 (1984), cert. denied, 534 U.S. 1132 (2002), the defendant argues that, in the context of the defense presented at trial, his counsel was ineffective for failing to object to the judge's instruction to that effect. The defendant contends that the instruction that "accident is not a defense to felony murder" could have led the jury to reason that an accident precipitated by the victim was not a defense.

At least twice in the course of giving instructions, the trial judge correctly instructed the jury on the defendant's "accident defense." He stated, "[I]n order to find this defendant guilty of murder in any degree, the Commonwealth must have proven to you beyond a reasonable doubt that the victim . . . was killed by this defendant, and not by the police and not by his own accidental or unintentional shooting of the weapon." Again, in response to a jury inquiry concerning the elements of murder in the first and second degrees, the trial judge stated, "[F]irst of

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all, you won't even consider the indictment charging this defendant with murder unless the Commonwealth has proven to you beyond a reasonable doubt that Mr. Jackmon fired the bullet which killed Mr. Traynham." In light of these instructions, the judge's comment regarding the "accident defense" was an accurate statement of the law and not prejudicially misleading or confusing. We conclude, in considering the totality of the jury instructions and the context in which the challenged instruction was given, that there was no error in the instruction and, thus, that defense counsel was not ineffective. See Commonwealth v. Blake, 409 Mass. 146 , 152 (1991).

Sentencing. It is well-established that this court will not review a lawful sentence. Commonwealth v. D'Amour, 428 Mass. 725 , 746 (1999). "That authority is delegated to the Appellate Division of the Superior Court." Ibid. This court may, however, "review the penalty imposed upon a defendant for a crime other than that for which he stands convicted." Commonwealth v. Coleman, 390 Mass. 797 , 804 (1984). The defendant here contends that the judge sentenced him for crimes of which he was not convicted. Specifically, the defendant argues that the judge incorrectly sentenced him for two counts of G. L. c. 265, § 18(b). [Note 10] We disagree.

Although the defendant was acquitted of both counts charging him under G. L. c. 265, § 18(b), with assault with intent to murder two police officers, the jury found him guilty of two counts of assault with a dangerous weapon against the same two police officers. [Note 11] The judge sentenced the defendant on these two counts of assault with a dangerous weapon; he placed the remaining convictions for assault with a dangerous weapon on file with the defendant's consent. There was no error in so doing.

Judgments affirmed.

Order denying of motion for new trial affirmed.