385 Mass. 784 (1982), Commonwealth v. Berth

Citation:385 Mass. 784, 434 N.E.2d 192
Party Name:COMMONWEALTH v. Curtis BERTH (and four companion cases [ 1]).
Case Date:April 12, 1982
Court:Supreme Judicial Court of Massachusetts
 
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Page 784

385 Mass. 784 (1982)

434 N.E.2d 192

COMMONWEALTH

v.

Curtis BERTH (and four companion cases 1).

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1982

Argued Jan. 5, 1982.

[434 N.E.2d 193] Michael J. Traft, Asst. Dist. Atty. (James J. Larkin, Asst. Dist. Atty., with him), for the Commonwealth.

Milly Whatley, Boston, for Otis Jones, Jr.

Joseph D. Wishnow, Boston, for Curtis Berth.

Before HENNESSEY, C. J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

Page 785

NOLAN, Justice.

The defendants were convicted in the Superior Court of violations of G.L. c. 94C, § 32. They appealed to the Appeals Court which reversed, finding error in the judge's charge concerning alibi. Commonwealth v. Berth, --- Mass.App. ----, Mass.App.Ct.Adv.Sh. (1981) 1609, 425 N.E.2d 766. We granted the Commonwealth's application for further appellate review. We agree with the Appeals Court that the judgments must be reversed and that a new trial is required.

The evidence may be summarized as follows. On September 6, 1979, the Boston police conducted a field operation in the vicinity of 1820-1950 Washington Street. Approximately twenty arrests were made during the course of this operation. Detective Logan, a member of the Drug Control Unit, testified that he was positioned in an observation vehicle on Washington Street and, with the aid of binoculars, observed what appeared to be three sales of controlled substances by the defendant Berth. Logan testified that Jones participated in two of these transactions.

Specifically, Logan testified that at approximately 10:45 A.M., a vehicle stopped in the vicinity of 1820 Washington Street, the driver left the car and walked over to Jones. After a brief conversation, the two walked over to Berth and the driver gave Berth money in exchange for a tinfoil packet. At 11:15 A.M., another individual drove up to the vicinity of 1850 Washington Street, got out of his car, and approached Jones. Jones and the individual walked over to Berth, and the individual passed Berth money in exchange for a tinfoil packet. At 12:15 P.M., a third car arrived and a

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passenger went directly to Berth, gave him money, and received a clear plastic bag in return. After each of these alleged sales, Berth approached another man, Michael Robinson, and gave him money.

As each transaction occurred, Logan transmitted a description of the cars involved to other police officers who subsequently stopped the vehicles and confiscated the packets. After chemical analyses, it was determined that one packet contained cocaine, one contained heroin, and a third contained no narcotic or harmful drug. A search subsequent to arrest revealed no money or drugs on Jones; Berth had $45 but no drugs. Logan was the only witness who testified to observing the defendants participating in these transactions.

Berth testified that he was not present at 1820 Washington Street during the time of the transactions. He also presented an alibi witness who testified that Berth was at her home in Mattapan between approximately 10:15 A.M. and 12:00 noon, cleaning her carpets. Jones did not testify or present an alibi witness.

Counsel for Berth submitted a written request for instructions, including the alibi instruction which we approved in Commonwealth v. McLeod, 367 Mass. 500, 502, 326 N.E.2d 905 (1975). After the judge failed to give any instruction on alibi, counsel for the defendant Jones requested the McLeod instruction. The judge then gave a supplemental instruction on alibi, but it was not the instruction recommended in McLeod. Counsel for the defendant Jones objected to the charge but counsel for Berth did not. Both defendants argue on this appeal that their convictions should be reversed because of the inadequacy of the alibi instruction.

Berth was the only defendant to present an alibi. Although he requested the McLeod instruction, he did not object at trial to the judge's failure to give the requested instruction to the jury. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). In the absence of a valid objection...

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