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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Sabetti, 411
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Carol A. Donovan, Committee for Public Counsel
Services (Millie Whatley, Committee for Public Counsel Services, with her), for
defendant.
Kevin J. Mahoney, Asst. Dist. Atty., for Com.
Before [411
NOLAN, Justice.
On April
29, 1987, a Middlesex County grand jury indicted the defendant, Matthew Sabetti, on charges of trafficking in cocaine, possession
of cocaine, possession of marihuana, unlawful possession of controlled
substances (three indictments charging four counts), and assault and battery on
a police officer. (FN1) On
The judge
allowed the defendant's posttrial motion for a
required finding of not guilty on the trafficking charge and, pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), ordered the
entry of a guilty verdict of the lesser included offense of possession of
cocaine with intent to distribute. The
conviction of possession of marihuana was placed on file. A single justice of the Appeals Court stayed
the execution of the sentence pending this appeal.
The
defendant appeals from his conviction, arguing that the motion judge improperly
denied his motion to suppress the controlled substances and contraband seized
by the State police from his person and from the vehicle which he occupied,
since the police did not have probable cause to arrest or to search him. The defendant further contends that the trial [411 Mass. 772] judge should have directed a finding of not guilty on the
trafficking in cocaine and possession of cocaine with intent to distribute
charges, because the Commonwealth failed to introduce sufficient evidence that
he had knowledge or possession of the cocaine seized from the vehicle. The Commonwealth cross appeals from the trial
judge's decision to reduce the verdict of cocaine trafficking to possession of
cocaine with intent to distribute, asserting that the judge committed an error
of law in exercising his discretion under Mass.R.Crim.P.
25(b)(2). We granted the defendant's
application for direct appellate review.
For the reasons set forth below, we hold that the defendant's claims of
error are without merit. Further, we
conclude that the trial judge erred in reducing the trafficking conviction.
We state
the facts relevant to this appeal. On
January 7, 1987, at approximately 6:30 P.M., Trooper David Otte
of the State police drove into the Burger King restaurant parking lot located
alongside the Massachusetts Turnpike in Natick.
At that time, Trooper Otte observed a vehicle
parked in an isolated section of the lot.
He noticed trash being thrown from the driver's side of the vehicle onto
the ground. Consequently, the trooper
drove toward the vehicle and positioned the front of the police cruiser
perpendicular to the front passenger door of the vehicle so that the headlights
shone at the vehicle.
As he
approached the vehicle, Otte saw trash strewn about
the ground outside both the driver and front passenger doors. He approached the defendant, who then was
sitting in the driver's seat, and asked him about the improperly disposed
trash. Sabetti
denied having thrown the trash to the ground.
Trooper Otte then walked around the vehicle to
the passenger side where he observed and spoke to John Graticcia.
Through
the passenger window, aided by a flashlight, the trooper viewed Graticcia and the front interior of the vehicle. Otte observed
several items in Graticcia's open, right breast
pocket, including a brown plastic medicine vial bearing the name
"Janet" on the label, a folded piece of glossy paper, a section of a
plastic straw, a small metal aspirin tin and a [411 Mass. 773] small
amber vial which appeared to contain a white powdery substance. Based on his experience and training, Otte recognized these objects as implements used to consume
and to distribute cocaine. The trooper
also observed several bottles like the type that contain prescription medicines
scattered about the floor of the vehicle.
Some of the bottles appeared to contain pills. Additionally, Otte
noticed
the following items on the floor of the vehicle: a brown medicine bottle containing a fluid,
cotton balls, and several empty soft drink bottles covered on their tops with
perforated tinfoil. The trooper
understood these materials to be the type of instruments commonly used to smoke
or "freebase" cocaine. The
interior of the vehicle, according to Otte, was a
"mess," filled with trash, clothing, and other personal items.
Trooper Otte ordered Graticcia out of the
vehicle and then searched him. After
confiscating the contraband he had observed in Graticcia's
pocket, Otte arrested Graticcia,
handcuffed him, and placed him in the cruiser.
Otte returned to Sabetti,
who then was standing outside the vehicle, and searched him. Placing his hand inside Sabetti's
pants pocket, Otte discovered and seized a plastic
bag which appeared to contain marihuana.
When the trooper informed Sabetti that he was
under arrest, Sabetti became physically abusive and
attempted to elude Otte's grasp. A few moments later, Otte
apprehended Sabetti, handcuffed him, and placed him
in the cruiser.
While the
defendant and Graticcia sat in the cruiser, Trooper Otte viewed the rear interior of the vehicle. He observed more bottles and a white canvas
gym bag on the seat. Protruding from the
outside compartment of the bag were several plastic bags, seemingly dusted with
white crystalline powder.
Shortly
thereafter, four State troopers arrived in the parking lot, responding to a
call from a bystander and a radio request for back‑up from Trooper Otte. Pursuant to
State police regulations, the troopers arranged for the vehicle to be towed to
police barracks in Weston in order to conduct an [411 Mass. 774]
inventory search. (FN2) The troopers concluded that the inventory
procedure could best be conducted at the barracks, given the large quantity of
items in the car and the relatively poor lighting conditions in the parking
lot.
In the
course of conducting the inventory of the vehicle's contents, the police seized
several items, including: a canvas bag
which held two plastic bags (subsequently determined by analysis to contain
38.02 grams of eighty‑one per cent pure cocaine), a plastic measuring
spoon, a grinder (subsequently determined to contain cocaine residue), a
funnel, a strainer, Inositol powder, (FN3) a gram
scale, several pieces of glossy paper, a test tube (subsequently determined to
contain cocaine residue), numerous prescription tablets, a small smoking pipe,
a switchblade knife, more than five grams of marihuana, an ankle brace, a
message "beeper," papers referring to transactions, a syringe
(subsequently determined to hold liquid cocaine), a gun, a holster, and a large
number of empty prescription bottles.
Graticcia and Sabetti were booked,
photographed, and fingerprinted at the State police barracks in Weston. The booking officer confiscated $1,090 from Graticcia, who then appeared to be under the influence of
narcotics. Graticcia
had an extremely swollen and discolored ankle at that time. During the booking, the defendant falsely
identified himself as "Justin" Sabetti. The defendant's speech at that point sounded
sluggish and his coordination seemed impaired, although he did not exhibit
signs of alcohol intoxication. The
police determined that Graticcia owned the vehicle.
[411 Mass. 775] [1] 1. Denial of the motion
to suppress. The defendant
challenges the determination of the motion judge that Trooper Otte had probable cause to search and arrest Sabetti in the Burger King parking lot. Specifically, the defendant contends that Otte did not have probable cause to believe that he had
committed or then was attempting to commit a crime and, therefore, the fruits
of the search should have been suppressed.
Absent a showing of clear error, we accept the motion judge's findings
of fact and grant substantial deference to his rulings of law.
Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990), and
cases cited.
[2] The
motion judge found that Trooper Otte was entitled to
approach the vehicle in the parking lot and question its occupants, having
witnessed trash being thrown therefrom. (FN4)
The judge concluded that the initiation of the investigation by Trooper Otte was permissible in the circumstances.
Commonwealth v. Helme, 399 Mass. 298, 300,
503 N.E.2d 1287 (1987), and cases cited.
There is no error in this ruling.
[3] The
motion judge next considered whether the scope of the search conducted was
justified in the circumstances. Helme, supra.. Otte testified
that, while legitimately investigating the littering violation, he
inadvertently discovered plainly visible narcotics contraband on the person of Graticcia and inside the vehicle. The motion judge found Otte's
testimony to be credible. We shall not
disturb this finding on appeal. Commonwealth v. Bottari,
395 Mass. 777, 780, 482 N.E.2d 321 (1985), citing Commonwealth v. Meehan, 377 Mass. 552, 557, 387 N.E.2d 527
(1979). These facts, the motion judge
reasoned, supported the conclusion that Trooper Otte's
search of Graticcia and the vehicle, as well as the
seizure of the evidence located therein, was justified under the "plain
view doctrine." Commonwealth v. Cefalo,
381 Mass. 319, 331‑332 & n. 9, 409 N.E.2d 719 (1980). The motion judge's findings and rulings are
amply supported by the record.
[411 Mass. 776] [4] The motion judge further concluded that, based on Graticcia's apparent possession of narcotics and related
contraband, the presence of several prescription medicine vials in the vehicle,
and other paraphernalia known to the trooper as instruments used to consume and
to distribute narcotics, Trooper Otte had probable
cause to arrest the defendant. In
support of this holding, the motion judge cited United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683, 83 L.Ed.2d 604 (1985) (police officer had
probable cause to arrest passenger in automobile which contained evidence of a
crime in plain view). We agree with the
motion judge's analysis.
Probable
cause to arrest and search Sabetti existed, if Trooper
Otte's knowledge of the facts and circumstances would
have "warrant[ed] a person of reasonable caution in believing" that Sabetti may have possessed controlled substances.
Commonwealth v. Gullick, 386 Mass. 278,
283, 435 N.E.2d 348 (1982). Objectively
viewing the facts and circumstances known to Trooper Otte
at the relevant time, we conclude that probable cause existed to search and to
arrest Sabetti. Id. at 284, 435 N.E.2d 348.
Trooper Otte rightfully arrested Graticcia
for possession of what he reasonably believed to be cocaine and cocaine‑related
materials. The trooper thus had probable
cause to search the vehicle for the purpose of "seizing fruits,
instrumentalities, contraband and other evidence of the crime for which the
arrest has been made in order to prevent its destruction or concealment."
Commonwealth v. Borden, 403 Mass. 1008, 1009, 530 N.E.2d 1242
(1988), quoting G.L. c. 276, § 1 (1986 ed.). In so doing, the trooper testified that he
observed contraband throughout the interior of the vehicle, including the
driver's seat area where Sabetti sat. Otte further noted
that the defendant and Graticcia had parked in a
relatively isolated area of the lot, likely in an effort to avoid detection
while ingesting narcotics. Otte reasonably concluded from these facts that Sabetti at least constructively possessed contraband, and
further concluded that he may have held narcotics on his person as well. As the motion judge correctly ruled, the fact
that Otte searched Sabetti
and found a quantity[411 Mass. 777]
of marihuana prior to arresting him is irrelevant. Commonwealth v. Brillante, 399 Mass. 152, 154‑155 n. 5, 503
N.E.2d 459 (1987). For the foregoing
reasons, we conclude that the motion judge properly denied Sabetti's
motion to suppress.
2. Denial of the motion for required finding
of not guilty. The defendant argues
that the trial judge erroneously denied his motion for a required finding of
not guilty of trafficking in cocaine.
The defendant contends that he was entitled to such a finding as a
matter of law, since the Commonwealth failed to introduce sufficient evidence
that he knew of the presence of the cocaine in Graticcia's
vehicle, that he possessed or intended to exercise control over the cocaine, or
that he entered into a joint enterprise with Graticcia
to traffic in cocaine. We are not
persuaded by the defendant's arguments.
"When
reviewing the denial of a motion for a required finding of not guilty, we look
at the evidence in the light most favorable to the Commonwealth." Commonwealth
v. Garcia, 409 Mass. 675, 686, 569 N.E.2d 385 (1991). To defeat a motion for a required finding of
not guilty, the evidence presented by the Commonwealth must be "sufficient
... to permit the jury to infer the existence of the essential elements of the
crime charged." Commonwealth v. Sandler,
368 Mass. 729, 740, 335 N.E.2d 903 (1975).
The Commonwealth contended at trial that the defendant possessed over
twenty‑eight grams of cocaine with the intent to distribute the same
(elements of trafficking in cocaine as stated in G.L.
c. 94C, § 32E, as appearing in St.1983, c. 571, § 3) or, alternatively, that
the defendant participated in a joint venture with Graticcia
to traffick in cocaine. We hold that, based on the evidence submitted
by the Commonwealth at trial, the jury would have been warranted in convicting
the defendant under either theory.
[5][6][7][8]
To support a conviction of trafficking in cocaine under G.L.
c. 94C, § 32E, the Commonwealth must prove that the defendant had
"possession" of the cocaine. Commonwealth v. Garcia, supra. Possession may be established through
evidence that the defendant had "control and power" over the cocaine. Id.,
quoting Commonwealth v. [411 Mass. 778] Deagle, 10 Mass.App.Ct.
563, 567, 409 N.E.2d 1347 (1980).
Constructive possession may be proved by "knowledge coupled with
the ability and intention to exercise dominion and control." Id. The Commonwealth acknowledges that it must
establish more than the defendant's presence in the vehicle to support a finding
of possession. Commonwealth v. Bongarzone,
390 Mass. 326, 345, 455 N.E.2d 1183 (1983).
The Commonwealth asserts, however, that it introduced evidence of
"[p]resence ... supplemented by other
incriminating evidence" from which the jury reasonably could infer that
the defendant, the person occupying the driver's seat of the vehicle, knew of
or intended to control the narcotics and the related materials surrounding him.
Garcia, supra 409 Mass. at 687, 569 N.E.2d 385, citing Commonwealth v. Brown, 401 Mass. 745,
747, 519 N.E.2d 1291 (1988). The most
noteworthy evidence offered to support this inference is the testimony of
Trooper Otte, who described the interior of the
vehicle as a virtual wasteland of plainly visible contraband, and who opined
that Graticcia was under the influence of narcotics
and recited the fact that the defendant attempted to flee the scene when Otte attempted to arrest him. This latter fact allows for the inference of
consciousness of guilt. Commonwealth v. Brzezinski,
405 Mass. 401, 410, 540 N.E.2d 1325 (1989), citing Commonwealth v. LaPerle,
19 Mass.App.Ct. 424, 427, 475 N.E.2d 81 (1985). We agree with the Commonwealth that the jury
properly could infer, on the basis of this evidence, that the defendant knew of
the contraband and the plainly visible bags of cocaine and therefore could
properly have been found constructively to possess the same.
Garcia, supra 409 Mass. at 687, 569 N.E.2d 385, citing Commonwealth v. Almeida, 381 Mass. 420,
423, 409 N.E.2d 776 (1980).
[9] The
defendant further contends that the canvas bag in which the cocaine was located
belonged solely to Graticcia as evidenced by the fact
that it contained an ankle brace used to relieve his injured ankle. Given this fact, the defendant claims that
the bag was exclusively in the possession and control of Graticcia. In rebuttal, the Commonwealth contends that
the jury could infer joint control over the bag from evidence that the
defendant had knowledge of its contents
[411 Mass. 779] and the fact
that the bag also contained marihuana‑‑the substance found on Sabetti's person at the time of his arrest.
In
addition, the Commonwealth presented expert testimony as to the nature and
significance of the contraband found within the vehicle. The expert, a veteran member of the Middlesex
narcotics task force, opined that the instruments found in the vehicle
typically are associated with drug trafficking.
In particular, the expert testified that, based on his knowledge and
experience, the presence of a message beeper, pieces of glossy paper, notes
regarding transactions or "cuff sheets" and a large amount of cash in
the vehicle indicates drug trafficking activity. Furthermore, the expert testified that the
quality of the cocaine found in the vehicle was not consistent with cocaine
intended for personal use. Rather, the
expert stated that the purity of the cocaine‑‑eighty‑one per
cent‑‑signals the fact that the cocaine is at a high level in the
distribution chain. The expert explained
that cocaine gradually becomes more diluted as it filters through the
distribution system, generally resulting in twenty‑five per cent pure
cocaine at the street level. Based on
his experience, the expert stated that, in 1988, cocaine intended for personal
use actually contained anywhere from ten to twenty‑five percent pure
cocaine. The evidence provided a
sufficient basis on which the jury could find the defendant guilty of
trafficking in cocaine.
[10] The
Commonwealth's evidence also was sufficient to enable the jury to conclude that
the defendant was involved in a joint venture with Graticcia
to traffick in cocaine. "The test [for joint venture] is whether
[the] defendant was (1) present at the scene of the crime, (2) with knowledge
that another intends to commit the crime or with intent to commit a crime, and
(3) by agreement is willing and available to help the other if necessary."
Commonwealth v. Costa, 407 Mass. 216, 224, 552 N.E.2d 106 (1990),
quoting Commonwealth v. Longo 402
Mass. 482, 486, 524 N.E.2d 67 (1988).
There is no question as to the defendant's presence, so we turn to
consider the defendant's knowledge or intent at the time of his arrest.
Costa, supra 407 Mass. at 225, 552 N.E.2d 106. "Knowledge or intent ... may be proved
by inference [411 Mass. 780] from all the facts and circumstances
developed at trial." Id.
As demonstrated above, the Commonwealth presented an abundance of
evidence from which the jury could infer that the defendant was aware of the
cocaine and was willing to assist in its distribution. Commonwealth v. Santiago,
30 Mass.App.Ct. 207, 218, 567 N.E.2d 943 (1991)
(defendant's complicity in cocaine trafficking venture may be reasonably
inferred from the circumstances). For
these reasons, we conclude that the jury would have been warranted in finding
the defendant guilty of trafficking in cocaine under a theory of joint venture.
3. The reduction of the jury verdict. "On review of a judge's determination
under rule 25(b)(2) to reduce a verdict to guilty of
a lesser offense, 'we consider only whether the judge abused his discretion or
committed an error of law.' " Commonwealth v. Keough,
385 Mass. 314, 319, 431 N.E.2d 915 (1982), quoting Commonwealth v. Gaulden, 383 Mass. 543,
557, 420 N.E.2d 905 (1981). We conclude
that the trial judge erred in reducing the jury verdict of guilty of
trafficking in cocaine.
[11] In
exercising his authority to reduce the verdict pursuant to Mass.R.Crim.P.
25(b)(2), the trial judge stated that the evidence did not establish beyond a
reasonable doubt that the defendant knew that he possessed over twenty‑eight
grams of cocaine. While noting that he
was not entirely clear as to whether the Commonwealth bore the burden of
establishing such a fact, the judge entered a finding of guilty of the lesser
included offense of possession of cocaine with intent to distribute. The judge thought that entry of the lesser
conviction would be consonant with the interests of justice in this case,
although he noted that the trafficking conviction would not necessarily be
contrary to those interests either. The
reduction was error.
The
Commonwealth argues that the judge miscontrued G.L. c. 94C, § 32E, by interpreting that statute to require
proof that the defendant knew he possessed more than twenty‑eight grams
of cocaine and that he intended to distribute it. The Commonwealth asserts that this reading
undermines the purpose of the statute, which is to establish a [411 Mass. 781] fixed and ascending statutory scheme for punishing drug dealers
in a manner which corresponds to the size of their individual sales activities.
Commonwealth v. Maracic, 18 Mass.App.Ct. 722, 724, 469 N.E.2d 1304 (1984). The defendant responds that the statute, if
construed not to require proof beyond a reasonable doubt that the defendant
knew that he possessed over twenty‑eight grams of cocaine, violates his
State and Federal due process rights by imposing a strict liability element
into the offense. The defendant's
argument is fundamentally flawed because the statute explicitly imposes
liability for cocaine trafficking only upon proof of knowing and intentional
possession of cocaine. In this regard
the statute cannot be viewed as imposing strict liability. G.L. c. 94C, §
32E. Moreover, the statutory scheme
makes clear that "[t]he volume of the material being sold" is
relevant to the determination of the level of drug trafficking the defendant is
guilty of participating in and the appropriate penalty for that activity. See
Commonwealth v. Beverly, 389 Mass. 866, 869, 452 N.E.2d 1112 (1983). Since the Commonwealth introduced sufficient
evidence that the defendant possessed over twenty‑eight grams of cocaine
with the intent to distribute the same, the jury were warranted in convicting
the defendant of trafficking in cocaine.
The
conviction of trafficking in cocaine is reinstated and this case is remanded to
the Superior Court where an appropriate sentence shall be imposed on the
defendant.
So ordered.
(FN1.) The grand jury also indicted John A. Graticcia on several charges. Graticcia and Sabetti initially were tried together. On the second day of trial, however, the
judge declared a mistrial as to Graticcia, finding
him incompetent, by reason of drug addiction, to stand trial. Their cases were severed and Sabetti's trial continued the next day.
(FN2.)
State Police Policy (OPR‑26), Motor Vehicle Inventory, states that
"[i]t shall be the policy of the Division of
State Police to conduct and record an inventory of the contents of vehicles
towed, removed or stored at the request of the Division as the result of a
police action." State police
procedure (OPR‑26A) under the same heading provides that articles deemed
to be contraband, which are found in the course of an inventory conducted
pursuant to State police policy, shall be seized and held for further
investigation.
(FN3.)
The Commonwealth's expert testified that Inositol
powder is a dilutent mixed with cocaine to increase
its volume and thereby the profits.
(FN4.)
General Laws c. 270, § 16 (1990 ed.), makes criminal the disposal of rubbish on
or near a public way and imposes a fine up to $10,000.