|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Varney, 391
Supreme Judicial Court of Massachusetts,
Argued
Decided
Thomas F. Heffernon,
Michael J. Traft, Asst. Dist. Atty., for
Commonwealth.
Before [391
ABRAMS, Justice.
After
trial by jury, the defendant, Donald Varney, was convicted of unlawful
possession with an intent to distribute more than 200 grams of a mixture
containing cocaine, a Class B controlled substance. G.L. c. 94C, § 32E(b ) (3), inserted by St.1980, c. 436, § 4. Pursuant to § 32E(b )(3), Varney was sentenced to the Massachusetts Correctional
Institution, Walpole, for a term of ten years.
Varney's sentence was stayed pending resolution of his appeal. We transferred the case to this court on our
own motion.
On appeal,
the defendant argues error in the denial of his motion to suppress and in the
prosecutor's summation. Varney also
challenges the constitutionality of G.L. c. 94C, § 32E(b )(3), as applied to him, and the validity of the sentence imposed
pursuant to that section. We affirm the
conviction. (FN1) However, for the reasons stated in Commonwealth v. Marrone, 387 Mass. 702,
705‑707, 442 N.E.2d 735 (1982), we vacate the sentence and remand for
resentencing pursuant to the general provision of G.L. c. 94C, § 32E(b ).
1. Motion to suppress. We summarize the facts. (FN2)
On
About 6:30
P.M., when business at the freight office began to slow down, the employees
discussed Baldwin's behavior. The
employees recently had received a bulletin concerning safety precautions, which
instructed the employees to ask for identification from persons sending
packages who were not regular customers.
No such identification had been obtained from Baldwin. Because of Baldwin's intoxicated condition,
his insistence that the package be shipped on a particular flight, and his
unexplained familiarity with the freight handler's name, one of the freight
office employees, prompted by safety concerns, decided to open the
package. An inspection of the contents revealed glassine bags containing a
white powdery substance and a green herb.
The bags were secured with towels.
The employee, who suspected narcotics, called his supervisor and
requested that the police be notified.
Responding
to the supervisor's telephone call, an agent of the Palm Beach sheriff's office
came to the air freight office, spoke to the employee, and inspected the
package. The agent conducted a field
test on the powder and obtained positive results for cocaine. On the basis of training and experience, the
agent also determined that the green herb in the package was marihuana.
After the
drugs had been taken to the local police station and weighed, the drugs were
returned to the package, the package was resealed, marked for identification,
and placed on the flight Baldwin had requested.
The agent then telephoned the Massachusetts State police and informed
them that a package destined for Logan Airport contained cocaine and
marihuana. The Massachusetts officers
were told that [391 Mass. 37] the package was addressed to one
Donald Varney, had been delivered to an air freight service in West Palm Beach,
Florida, by David Baldwin, and would arrive at Logan Airport on a scheduled
flight at 12:30 A.M. on September 16.
At
approximately 10 A.M. on September 16, Varney presented himself at the delivery
service's counter, stated to an employee that he was looking for a package
addressed to him, and recited the package's waybill numbers to the
employee. The employee went into a
separate room, ostensibly to search for the package, and, as prearranged,
contacted the police. Approximately eight
minutes later, a police officer brought the package to the airline terminal and
gave it to the employee. The police
officer remained outside while the employee took the package and brought it to
the counter. The defendant presented his
Massachusetts driver's license as identification and signed the airbill, which
described the package's contents as neckties.
Taking the
package, the defendant left the freight service's office, bypassed a bank of
public telephones immediately outside the office, and walked 100 yards to
another group of public telephones and made a telephone call. Varney then proceeded to his automobile. As he neared the automobile, he was
approached by police officers, who, after giving the defendant the Miranda
warnings, informed him that the police had reliable information that the
package contained narcotics. The
defendant disclaimed knowledge of the contents of the package and stated that
he was picking it up for a friend, David Baldwin.
The
defendant accompanied the officers to the State police office at the
airport. He waited there while a search
warrant was obtained. During this
interval, the defendant placed a telephone call to his lawyer. An officer returned with the search warrant,
and the package was opened in the defendant's presence. A field test conducted at the station
revealed that a white powder found in the package was cocaine. The package also contained marihuana. The defendant was arrested and taken to the
East Boston Division of the District Court for arraignment on charges of
trafficking in cocaine and possession of marihuana.
[391 Mass. 38] Varney claims that the field testing of the contents of the
package in Florida required a search warrant.
Varney contends that the warrant obtained in Massachusetts, although
facially valid, is predicated on the illegally obtained results of the Florida
field test, and therefore the evidence must be suppressed. We do not agree.
The
Commonwealth acknowledges that police must obtain a warrant if police intend to
search any place in which the defendant has a legitimate expectation of
privacy. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65
L.Ed.2d 633 (1980). We assume that, as
the addressee of the package, the defendant had the requisite privacy interest
in the package's contents at the time Baldwin delivered the package to the air
freight service. See Ex parte Jackson, 96 U.S.
727, 733, 104 S.Ct. ‑‑‑, ‑‑‑‑, 24 L.Ed. 877 (1878) (person sending letter or
sealed package through the mail has privacy interest in contents);
United States v. Jacobsen, 683 F.2d 296, 298 n. 2 (8th Cir.1982),
cert. granted, 460 U.S. 1021 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983) (sender and
intended recipient of a package have interest sufficient to confer standing to
contest search or seizure). (FN3)
[1][2][3][4]
The defendant's rights under the Fourth Amendment to the Constitution of the
United States were not infringed by the private search of the package by the
air freight service employees. Burdeau v. McDowell, 256 U.S. 465, 475,
41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). District Attorney for the Plymouth Dist. v.
Coffey, 386 Mass. 218, 221, 434 N.E.2d 1276 (1982). The issue raised by the defendant is whether
police must obtain a search warrant before a white powder in a glassine bag may
be tested to determine its chemical properties.
We conclude that a search warrant is not required in those
circumstances. The only thing
"private"[391 Mass. 39]
about the white powder at the time the police came into possession of it
was the powder's chemical composition.
We are unprepared to trivialize the concept of "privacy" by
incorporating in it an alleged right to protect from inspection by government
agents that which is lawfully obtained and appears to be contraband. (FN4)
The
defendant's argument requires us to ignore the transparent quality of glassine
and to conclude that the glassine bag or the white powder were
"containers" which "concealed" their "contents"
(cocaine). Were we to accept these
characterizations, we would be holding that the police must obtain a warrant
any time lawfully obtained evidence is to be subject to scientific
testing. See People v. Adler, 50 N.Y.2d 730, 737‑738 n. 4, 431 N.Y.S.2d
412, 409 N.E.2d 888 cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473
(1980). We think that such a result
"imposes substantial burdens on law enforcement without vindicating any
significant values of privacy." Robbins v. California, 453 U.S. 420,
429, 101 S.Ct. 2841, 2847, 69 L.Ed.2d 744 (1981) [391 Mass. 40] (Powell,
J., concurring in the judgment), overruled on other grounds, United States v. Ross, 456 U.S. 798,
102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
Walter v. United States, 447 U.S. 649,
100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), relied on by the defendant, does not
compel a contrary conclusion. In Walter, the Supreme Court ruled (FN5)
that the warrantless projection by FBI agents of films uncovered by a private
search of sealed cartons was illegal, even though the films were turned over to
the FBI in boxes covered with drawings and labels from which it could be
inferred that the films were obscene. A
plurality concluded that the consignor (FN6) of the cartons in which the films
were shipped had a legitimate expectation of privacy in the contents, and that
"[t]he private search merely frustrated that expectation in part." Id.,
447 U.S. at 659, 100 S.Ct. at 2403 (opinion of Stevens, J.). The projection of the previously unviewed
films by government agents "was a significant expansion of the search that
had been conducted previously by a private party and therefore must be
characterized as a separate search" conducted in violation of the warrant
requirement. Id. 447 U.S. at 657, 100 S.Ct. at 2401.
We believe
that there is a pronounced distinction between the privacy interests implicated
when government agents scrutinize previously unviewed films and those at stake
when government agents conduct a field test upon a sample of [391 Mass. 41] powder extracted from a glassine bag. As we read the Walter case, it stresses the fact that the films were
"materials arguably protected by the First Amendment," id. 447 U.S. at 655, 100 S.Ct. at 2401
(opinion of Stevens, J.), and notes that the warrant requirement was fashioned
"against the background of knowledge that [an] unrestricted power of
search and seizure could also be an instrument for stifling liberty of
expression," id., 447 U.S. at
655 n. 6, 100 S.Ct. at 2401 n. 6 (opinion of Stevens, J.), quoting Stanford v. Texas, 379 U.S. 476, 484,
85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965), and Marcus v. Search Warrant, 367 U.S. 717, 729, 81 S.Ct. 1708, 1714,
6 L.Ed.2d 1127 (1961).
A white
powder, unlike a film, is not a communicative medium. A warrantless scientific examination by
government agents of white powder lawfully obtained and plainly visible may
confirm the fact that it is contraband.
That the test may confirm that the white powder is contraband does not,
in our view, implicate any Fourth Amendment privacy interest. Nor do we think that such a test endangers
any countervailing interest in free expression.
(FN7) We also think that this
distinction was implicitly recognized by the
Walter plurality's reliance on Justice Stewart's concurring
opinion in Stanley v. Georgia, 394
U.S. 557, 569, 89 S.Ct. 1243, 1250, 22 L.Ed.2d 542 (1969). See
Walter v. United States, supra, 447 U.S. at 653, 100 S.Ct. at 2399. That opinion reflected the view that the
warrantless projection of the contents of films raised First and Fourth
Amendment issues not presented by governmental inspection of contraband in
plain view. (FN8) Stanley v. Georgia, supra.
[391 Mass. 42] In circumstances similar to those in this case, two other courts
have held that the principles espoused by the plurality in Walter do not require that the police obtain a warrant before
testing a sample of what appears to be contraband uncovered by a private
search.
United States v. Barry, 673 F.2d 912, 920 (6th Cir.), cert. denied,
459 U.S. 927, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982). People v. Adler, 50 N.Y.2d
730, 738 n. 4, 431 N.Y.S.2d 412, 409 N.E.2d 888, cert. denied, 449 U.S. 1014,
101 S.Ct. 573, 66 L.Ed.2d 473 (1980).
See United States v. Andrews,
618 F.2d 646 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 84, 66 L.Ed.2d
26 (1980) (assuming without discussion that field test of white powder has no
Fourth Amendment implications).
The only
case to the contrary is United States v.
Jacobsen, 683 F.2d 296 (8th Cir.1982).
In Jacobsen, the United States
Court of Appeals for the Eighth Circuit concluded that "[t]he invasion of
privacy and collection of inculpatory evidence involved in testing unidentified
substances is parallel to the investigation and intrusion involved in screening
a film." Id. 683 F.2d at 300 n. 4. For the reasons previously stated, we do not
agree with this conclusion. (FN9) We affirm the judge's denial of Varney's
motion to suppress. (FN10)
[391 Mass. 43] 2. The prosecutor's closing
argument. The defendant filed a
motion in limine to preclude the Commonwealth from referring to the defendant
as a drug dealer or from referring to any drug activities not in evidence. At a hearing on the motion, defense counsel
voiced specific concern over the possibility that the prosecutor would comment
on a 1975 arrest of David Baldwin for a narcotics violation. The judge, noting that reference to Baldwin's
arrest would be impermissible, stated, "I don't think you [defense
counsel] have any concern there, and I assume that the D.A. is not going to
categorize any defendant as a drug dealer." After the prosecutor agreed with the judge's assessment, the judge stated
that he would take no action on the motion.
At trial,
the defendant offered evidence of his income and expenditures during the years
preceding his arrest and indictment for cocaine trafficking. In the Commonwealth's summation, the
prosecutor argued to the jury that the defendant's expenditures during the
years preceding his arrest were inconsistent with his income during those years
unless he had an undisclosed source of additional income. The prosecutor stated, "I contend to
you, ladies and gentlemen, the other source of income the defendant has was
narcotic drugs." The defendant objected
and requested a mistrial or curative instruction on the ground that the
prosecutor's statement was barred by the prosecutor's agreement not to refer to
the defendant as a "drug dealer."
The judge overruled the objection and denied both the motion for
mistrial and the request for curative instruction.
[5][6][7]
The defendant asserts that the prosecutor broke his promise and therefore
reversal is required. See Commonwealth v. Burke, 373 Mass. 569,
575, 369 N.E.2d 451 (1977); Commonwealth v. Benton, 356 Mass. 447,
252 N.E.2d 891 (1969). We are not
persuaded, however, that by promising in advance of trial not to characterize
Varney as a drug dealer, the prosecutor surrendered his right to argue to the
jury that evidence introduced in large [391
Mass. 44] part by the defense
supported an inference adverse to the defendant. The defense chose to open up the issue of the
defendant's life style by introducing evidence of Varney's income and
investments. The defense pursued a line
of questioning that could only be designed to establish that the defendant was
a legitimate businessman, and that his assertion that he had no interest in the
package he claimed at the airport was therefore plausible. During cross‑examination, the
prosecution asked questions aimed at rebutting that inference. In his closing argument, defense counsel
portrayed the defendant as "a hard‑working person who put together
this business which he didn't make a lot of money at," but who got
"things going and ... made a fair living." The Commonwealth argued that the same
evidence of finances indicated an undisclosed source of income. (FN11)
[8] The
defendant is not entitled to an interpretation of the pretrial agreement that
would permit him to argue to the jury that he was a legitimate businessman who
had nothing to do with narcotics, but would prohibit the Commonwealth from
arguing to the contrary. The judge, who
was in the best position to determine the exact nature of the [391 Mass. 45] prosecutor's pretrial commitment, rejected the defendant's claim
that the closing argument ran afoul of that agreement. A prosecutor is free to "argue the
evidence and the fair inferences which can be drawn from the evidence," Commonwealth v. Hoffer, 375 Mass. 369,
378, 377 N.E.2d 685 (1978), and to suggest to the jury conclusions with an
evidentiary foundation, Commonwealth v. Ferreira, 381 Mass. 306, 316, 409
N.E.2d 188 (1980). (FN12)
3. Unconstitutionality of G.L. c. 94C, §
32E(b). (FN13) Stressing that there is "no evidence of
prior cocaine offenses [391 Mass. 46] or acts, no evidence of an ongoing
criminal conspiracy, no evidence of sale or distribution and no evidence of
large profit taking" on his part, Varney argues that G.L. c. 94C, § 32E(b )(3), in its application violates due
process because it permits a first offender to be punished equally with "a
repetitive drug dealer who trafficks cocaine at the rate of fifty pounds a
month [and] who profits enormously from it." Because we conclude that par. 3 suffers from
the same defect as was found in § 32E(c
)(3), see Commonwealth v. Marrone,
387 Mass. 702, 442 N.E.2d 735 (1982), we do not discuss Varney's constitutional
claim. But see Commonwealth v. Jackson, 369 Mass. 904, 909, 344 N.E.2d 166
(1976). Compare Solem v. Helm, 463 U.S. 277 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
[9] In Commonwealth v. Marrone, 387 Mass. 702,
442 N.E.2d 735 (1982), we concluded that G.L. c. 94C, § 32E(c )(3), was flawed because it did not
contain provisions for minimum and maximum sentences, the basic structure of
sentencing in Massachusetts. (FN14) We adhere to the view that "the
Legislature would [not] repeal by implication the Commonwealth's basic
sentencing structure." Id. at 706. Accord,
Commonwealth v. Beverly, 389 Mass. 866, 869, 452 N.E.2d 1112 (1983), and
cases cited. Paragraph 3 of G.L. c. 94C,
§ 32E(b )(3), contains the very same
defect we found in Marrone. Accordingly, we conclude that Varney must be
resentenced under the general provision of G.L. c. 94C, § 32E(b ), which establishes a minimum and
maximum sentence. See Commonwealth v. Marrone, supra, 387
Mass. at 707, 442 N.E.2d
735. (FN15) The conviction is [391 Mass. 47]
affirmed, the sentence is vacated, and the case is remanded to the Superior
Court for resentencing.
So ordered.
(FN1.) The defendant also was convicted of
possession of marihuana. See G.L. c.
94C, § 31. This conviction was placed on
file with the defendant's consent. Thus,
there are no issues before us on the marihuana conviction. See
Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).
(FN2.)
The parties stipulated to the facts concerning the events in Florida. We also refer to some facts which, though not
stipulated to, are undisputed and give a factual context to the motion.
(FN3.)
That the defendant is charged with possession of the cocaine is no longer
sufficient by itself under the United States Constitution to entitle him to
challenge what he alleges was an illegal search of the contents of the bag in
which the cocaine was found. United States v. Salvucci, 448 U.S. 83,
91‑92, 100 S.Ct. 2547, 2552‑2553, 65 L.Ed.2d 619 (1980) (overruling
"automatic standing" doctrine of
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 [1960]
). The defendant has not raised the
issue whether the "automatic standing" rule should be retained under
our State Constitution. See Commonwealth v. Podgurski, 386 Mass.
385, 391 n. 11, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct.
1167, 75 L.Ed.2d 464 (1983). We,
therefore, leave that issue open.
(FN4.)
It is settled that "contraband ... may be seized without a warrant
whenever it is within plain view and in a place where the police have a right
to be." Sullivan v. District Court of Hampshire,
384 Mass. 736, ‑‑‑ ‑ ‑‑‑, 429 N.E.2d
335, Mass.Adv.Sh. (1981) 2370, 2376‑2377. Accord
Payton v. New York, 445 U.S. 573, 586‑587, 100 S.Ct. 1371, 1380‑1381,
63 L.Ed.2d 639 (1980). Although there
must be probable cause to believe that the item seized is in fact contraband, Sullivan v. District Court of Hampshire,
supra at 2377, "[i]t is not necessary ... that an officer have scientific
proof that it is such." Id. at 2378. On this record, it is clear that there was
probable cause to seize the white powder in the glassine bag which was
discovered in a package deceptively labeled as containing ties along with a bag
containing what the police recognized as marihuana. Thus, the warrantless seizure of the glassine
bag containing the contraband did not constitute a transgression of the
defendant's constitutional rights.
We are
cognizant that "an officer's authority to possess a package is distinct
from his authority to examine its contents." Walter v. United States, supra
at 654, 100 S.Ct. at 1417 (opinion of Stevens, J.), citing Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2589, 61
L.Ed.2d 235 (1979), and United States v.
Chadwick, 433 U.S. 1, 10, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977). See
United States v. Bush, 647 F.2d 357, 369 (3d Cir.1981). Although "the Fourth Amendment provides
protection to the owner of every container that conceals its contents from
plain view," United States v. Ross,
456 U.S. 798, 822‑823, 102 S.Ct. 2157, 2171‑2172, 72 L.Ed.2d 572
(1982), the Fourth Amendment has never been read to preclude a warrantless
examination of the contents of a container legitimately in the possession of
the government officials when those contents are plainly visible through the
container, see id. at 815, 102 S.Ct.
at 2171;
Robbins v. California, 453 U.S. 420, 427, 101 S.Ct. 2841, 2846, 69
L.Ed.2d 744 (1981) (Fourth Amendment inapplicable to search of transparent
container).
(FN5.)
Walter had no majority opinion.
Justice Stevens wrote an opinion in which he was joined by Justice
Stewart. In a separate opinion, Justice
White, joined by Justice Brennan, agreed with Justices Stevens and Stewart that
the FBI's warrantless projection of films discovered by private parties
violated a legitimate privacy interest where such films had not been screened
by the private parties, but concluded, contrary to Justices Stevens and
Stewart, that the warrantless projection would be unlawful even if the private
parties had projected the films. Justice
Marshall concurred without opinion in the judgment. Justice Blackmun filed a dissent in which he
was joined by Chief Justice Burger and Justices Powell and Rehnquist.
Walter, which we in any event find to be distinguishable, therefore,
does not control our decision. See People v. Adler, 50 N.Y.2d 730, 739‑740,
431 N.Y.S.2d 412, 409 N.E.2d 888 (1980) (Jones, J., concurring).
(FN6.) Both Walter and Ex parte Jackson, 96 U.S. 727, 733, 24
L.Ed. 877 (1878), involved the privacy interests of a sender, rather than a
recipient, of a sealed package. We do
not, however, perceive the privacy interests of the recipient of such a package
to be significantly different. See United States v. Jacobsen, 683 F.2d
296, 298 n. 2 (8th Cir.1982).
(FN7.) Because obscenity is a legal
conclusion, rather than scientific fact, the likelihood that a warrantless
search of films believed to be obscene will result in governmental intrusion on
noncriminal private expression is substantial.
See Walter v. United States, supra
at 655‑656 n. 6, 100 S.Ct. at 2401 (twenty of twenty‑five films
projected by police presumed not obscene).
By contrast, chemical analysis of a small portion of a powder
erroneously believed to be a controlled substance is unlikely to impinge
significantly on any expressive interest.
(FN8.) In
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
(1971), a plurality of four Justices concluded that the "plain view"
exception to the warrant requirement is inapplicable "where the police
know in advance the location of the evidence," id. 403 U.S. at 470, 91 S.Ct. at 2040, but suggested that this
inadvertence requirement is inapplicable to contraband, id. 403 U.S. at 471, 472, 91 S.Ct. at 2041. See
United States v. Bellina, 665 F.2d 1335, 1346 (4th Cir.1981). See also
United States v. Liberti, 616 F.2d 34, 38 (2d Cir.1980) (Newman, J.,
concurring), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808
(1981). Cf. Sullivan v. District Court of Hampshire, 384 Mass. 736, ‑‑‑
n. 8, 429 N.E.2d 335, Mass.Adv.Sh.
(1981) 2370, 2377 n. 8 (no need to invoke Coolidge plain view doctrine where "there was no intrusion
into an area which was 'private' in a Fourth Amendment sense").
(FN9.) Nor do we agree with the statement that
permitting a warrantless field test in these circumstances "allows a
finding of probable cause to eliminate the warrant requirement of the Fourth
Amendment." United States v. Jacobsen, supra, 683
F.2d at 300 n. 4. We conclude that
there was no Fourth Amendment "search" because there is no legitimate
expectation of privacy in visible white powder contained in a glassine
bag. See Sullivan v. District Court of Hampshire, 384 Mass. 736, ‑‑‑,
429 N.E.2d 335, Mass.Adv.Sh. (1981)
2370, 2375. If the government lawfully
has obtained the plainly visible white powder, we do not believe the Fourth
Amendment requires the police to obtain a search warrant before conducting a
scientific test.
(FN10.) Given our determination that the field
test did not constitute a Fourth Amendment "search," we do not
consider the Commonwealth's argument that, if the test was a
"search," the fact that the powder was to be shipped on the 12:30
A.M. flight qualified as an exigency that excused compliance with the warrant
requirement. We also need not address
the contention that, in light of the information available to the police before
the field test, the obtention of the warrant and the discovery of the evidence
by Massachusetts police was inevitable, and that consequently the exclusionary
rule should not be applied. See Commonwealth v. Benoit, 382 Mass. 210,
216‑219, 415 N.E.2d 818 (1981).
(FN11.) The defendant alleges that the
prosecutor's statement in his closing argument that Varney and Baldwin
"were in the business of controlled substance, cocaine, a very substantial
moneymaking business," also violated the pretrial agreement and was not a
fair inference based on evidence. Varney
also challenges as impermissible statements of personal opinion the
prosecutor's assertions that "Jeff Cunningham" was "a contrived
person created by the defendant," and that the defendant's mail order
business was "a sham ... a front, an air of legitimacy." The defendant neither objected to these statements
at trial nor requested any curative instructions, and we review them only to
see whether, individually or cumulatively, they created a substantial risk of a
miscarriage of justice. Commonwealth v. Concepcion, 362 Mass.
653, 654, 290 N.E.2d 514 (1972). We
conclude that there was sufficient evidence to support the inference urged upon
the jury by the prosecutor with regard to the nature of the relationship
between Baldwin and Varney, as well as the inference that Cunningham was
fictitious. Although the prosecutor's
characterization of the defendant's mail order business may have been
unjustified by the evidence, we do not think it probable that taken in the
context of his entire argument it warrants reversal of the conviction on the
ground of a miscarriage of justice. Commonwealth v. Earltop, 372 Mass. 199,
204, 361 N.E.2d 220 (1977).
(FN12.) The defendant argues on appeal that
the prosecutor's statement that "the other source of income the defendant
has was narcotic drugs" was not an inference supported by the
evidence. See Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977)
(Hennessey, C.J., concurring). At trial,
however, the sole ground for the defendant's objection to the statement was
that it violated the pretrial agreement. "[T]he defendant is precluded from
asserting on appeal a ground not properly brought to the attention of the trial
judge." Commonwealth v. Gullick, 386 Mass. 278,
281, 435 N.E.2d 348 (1982). We are, in
any event, unpersuaded that the prosecutor's statement exceeded the bounds of
proper argument. The evidence as to the
defendant's income and expenditures was sufficient to permit the jury to infer
that he had an undeclared source of income;
on the basis of the defendant's testimony that he had had repeated
business‑related telephone conversations with Baldwin, who mailed the
package containing narcotics, the further inference that the undeclared income
was drug related was permissible. Viewed
separately or in conjunction with other issues not properly preserved for
appeal, see note 11 supra, the
prosecutor's statement did not create a substantial risk of a miscarriage of
justice. Cf. Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967).
(FN13.) General Laws, 94C, § 32E(b ), inserted by St.1980, c. 436, § 4,
was rewritten by St.1982, c. 650, § 11.
Our discussion pertains only to § 32E(b ), as it appears in St.1980, c. 436, § 4, which reads as follows:
"Any
person who knowingly or intentionally manufactures, distributes, dispenses, or
possesses with intent to manufacture, distribute, dispense, or brings into this
state 28 grams or more of cocaine or any mixture containing cocaine, shall be
guilty of trafficking in cocaine and shall be imprisoned for not less than
three years and not more than ten years in the state prison. If the quantity is:
"1.
28 grams or more, but less than 100 grams, such person shall be imprisoned for
a mandatory term of three years in the state prison. A fine of not less than $2,500 and not more
than $25,000 may also be imposed but not in lieu of the mandatory term of
imprisonment, as so authorized;
"2.
100 grams or more, but less than 200 grams, such person shall be imprisoned for
a mandatory term of five years in the state prison. A fine of not less than $5,000 and not more
than $50,000 may also be imposed but not in lieu of the mandatory term of
imprisonment, as so authorized;
"3.
200 grams or more, such person shall be imprisoned for a mandatory term of ten
years in the state prison. A fine of not
less than $2,500 and not more than $200,000 may also be imposed but not in lieu
of the mandatory term of imprisonment, as so authorized."
(FN14.) In this case, unlike Marrone, Varney's sentence does not
exceed the maximum term provided by statute.
There is, however, no minimum sentence provided by G.L. c. 94C, § 32E(b )(3).
(FN15.) The defendant suggests that G.L. c.
94C, § 32E(b )(3), permits a ten‑year
sentence to the Massachusetts Correctional Institution, Concord. The defendant's sentence is governed by G.L.
c. 94C, § 32E(b ), not G.L. c. 94C, §
32E(b )(3). Thus, the judge has the usual discretion to
impose a sentence within the legislative limits and the general rules governing
sentencing in Massachusetts. See Commonwealth v. Hayes, 372 Mass. 505,
510‑512, 362 N.E.2d 905 (1977).