|
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. Varnum, 39 Mass.App.Ct. 571 (1995)
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 September 15, 1980, one David Baldwin delivered a package to an air
freight office at West Palm Beach International Airport. The package was addressed to Donald
Varney. At the time Baldwin presented
the package, the air freight office was very busy. Baldwin, who appeared intoxicated, [391 Mass. 36] called to one of the air freight handlers as though he were
acquainted with the employee and insisted repeatedly that the package be placed
on a specific flight to Boston. In
response to a question about the contents of the box, Baldwin asserted that he
was shipping neckties that were going to revolutionize the tie industry. Baldwin asked to use the telephone behind the
counter but kept dropping the receiver.
Baldwin paid for the delivery service and left the office.
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).