Com. v. Ortiz

• Decision Date: 08 May 1997
• Parties: COMMONWEALTH v. Maria ORTIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1007

679 N.E.2d 1007

424 Mass. 853

COMMONWEALTH v. Maria ORTIZ.

Supreme Judicial Court of Massachusetts Plymouth.

Argued April 7, 1997.

Decided May 8, 1997.

William M. Leonard, North Scituate, for defendant.

John E. Bradley, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

GREANEY, Justice.

We allowed the Commonwealth's application for direct appellate review in connection with the defendant's appeal from her convictions after a jury trial on two indictments charging trafficking in cocaine, G.L. c. 94C, § 32E(b). ¹ We examine the defendant's contentions that (1) she was entitled to a required finding of not guilty on the trafficking charge that was prosecuted on a joint participation theory (no. 93934); (2) evidence of the cocaine involved in both trafficking charges was admitted in evidence without proper "identification" by the authenticating police officer; and (3) she was improperly denied an opportunity to raise an issue concerning "sentencing entrapment." We affirm the defendant's trafficking convictions.

Based on the evidence and reasonable inferences most favorable to the Commonwealth, the jury could have found the following facts. In February, 1993, Sergeant Kenneth LeGrice of the Brockton police, an experienced narcotics investigator, became involved in an undercover investigation that involved the defendant and an Hispanic man later identified as Braudilio Martinez. On February 3, 1993, Sergeant LeGrice bought four bags of cocaine from the defendant and Martinez for $150. On February 6, 1993, Sergeant LeGrice made a second purchase of cocaine from the defendant for $150. These transactions were followed by two additional purchases of cocaine by Sergeant LeGrice, on February 12 and 13, 1993. On both occasions, the defendant and Martinez jointly participated in the sale.

Just after 10 P.M. on February 19, 1993, Sergeant LeGrice made contact by telephone with the defendant and asked to purchase three "eight-balls" of cocaine. (The term "eight-ball" is street vernacular for one-eighth of an ounce of cocaine, or approximately 3.5 grams). After negotiation, a price of $450 was agreed on, with the defendant, indicating to Sergeant LeGrice that she would throw in a free $40 bag of cocaine (commonly referred to in street vernacular as a "forty," and weighing about one gram). ² The cocaine was brought to the delivery point by a man who identified himself only as "Junior." "Junior" carefully counted the $450 in cash tendered by Sergeant LeGrice because "Braudilio [Martinez] told [me] to count it," before handing over to Sergeant LeGrice four bags containing, in the aggregate, 17.36 grams of cocaine. In the continuing criminal enterprise, this sale became the subject of the first trafficking indictment (no. 93934), on which the defendant was tried as a joint participant.

On February 24, 1993, Sergeant LeGrice made a sixth purchase of cocaine from the defendant when he bought directly from her an "eight-ball" for $160. The investigation was brought to a close on February 26, 1993, when the defendant agreed to sell Sergeant LeGrice six "eight-balls" of cocaine for $920. At the delivery point for this sale, the defendant, accompanied by Martinez and another Hispanic woman, handed Sergeant LeGrice, in exchange for the $920, seven bags of cocaine totalling 28.54 grams. (Sergeant LeGrice was told that the seventh bag, which was an extra bag beyond the bargained-for six, was "a free forty ... for you"). The defendant, Martinez, and the other Hispanic woman who accompanied them were arrested shortly after the sale in keeping with prearranged plans by the police. This sale, the seventh in the continuing series of transactions between the defendant, Martinez, and Sergeant LeGrice, became the subject of the second trafficking indictment (no. 93936).

1. As has been mentioned, the charge of trafficking that arose out of the sale on February 19, was tried on the theory that the defendant jointly participated in the transaction. The defendant moved for a required finding of not guilty on all seven charges being considered by the jury, asserting in the motion, in general terms, that the Commonwealth's evidence was insufficient to allow the jury to conclude that the elements of each offense had been proved beyond a reasonable doubt. The motion was denied. The defendant now argues that the motion should have been granted on this trafficking charge because the test for joint participation requires, among other factors, that each participating defendant be present at the scene. In keeping with this theme, the defendant argues in her brief as follows: "Since no evidence was presented that the defendant was present at the scene when Junior sold four bags [of cocaine] to [Sergeant] LeGrice, there could be no joint venture. Since there is no joint venture, there is no other theory whereby the Commonwealth could charge the defendant with trafficking."

Our decisions have set forth two theories that can sustain a defendant's conviction as a joint participant with another (or others) in the commission of a felony. ³ A defendant can be convicted as a joint participant in a felony, if he or she 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. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988), quoting Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041,S.C., 390 Mass. 254, 454 N.E.2d 901 (1983). A defendant may also be convicted as a joint participant in a felony if the defendant "aids in the commission of a felony, or is an accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed." G.L. c. 274, § 2. Commonwealth v. Raposo, 413 Mass. 182, 184-185, 595 N.E.2d 773 (1992). See J.R. Nolan & B.R. Henry, Criminal Law § 633, at 521-523 (2d ed. 1988). While the statute requires something more than mere acquiescence, physical participation is not required so long as there is "association with the criminal venture and any significant participation in it." Commonwealth v. Raposo, supra at 185, 595 N.E.2d 773, quoting Commonwealth v. Morrow, 363 Mass. 601, 609, 296 N.E.2d 468 (1973). The point of difference between the two theories is the factor of the defendant's presence at the scene of the felony. Despite this factor, our decisions have spoken of the two theories interchangeably. ⁴

The second theory of accomplice liability had its inception in the four early common law classifications that defined parties to a felony in terms of principals in the first or second degree and accessories before and after the fact. The classifications inevitably led to numerous procedural difficulties that tended to shield an accessory before the fact from punishment even though the accessory's active criminal involvement in the felony was clearly established beyond a reasonable doubt. "This [common-law approach was] undoubtedly another instance of resort to procedural niceties in order to limit the application of the death penalty, which at early common law was the penalty for all parties to any felony." ⁵ 2 W.R. LaFave & A.W. Scott, Jr., Criminal Law § 6.6(d), at 130 (1986).

Consistent with the action taken by most States, Massachusetts has corrected these problems by means of legislation, specifically by G.L. c. 274, § 2, which makes a joint participant in the commission of a felony liable to the same extent as the principal felon, and by G.L. c. 274, § 3, which removes the impediments described in note 5, supra. See Commonwealth v. Benjamin, 358 Mass. 672, 680-681, 266 N.E.2d 662 (1971) (discussing impetus behind statute). The effect of these statutes is to abrogate the distinction between principals and accessories before the fact, although G.L. c. 274, §§ 2 and 3, still continue to use the term "before the fact," and neither statute (as is the case with the statutes of some other States) explicitly addresses the common law factor of presence. Compare Idaho Code § 18-204 (1987 & Supp.1996) ("All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission, or who, by fraud, contrivance, or force, occasion the intoxication of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command or coercion, compel another to commit any crime, are principals in any crime so committed").

A practical effect of our statutory changes is to hold the criminal actor who participates in a felony liable as a principal without regard to whether the felony is completed or committed by another. ⁶ See 1 C. Torcia, Wharton's Criminal Law § 35, at 202-203 (15th ed. 1993) ("The person who aids, abets, commands, counsels, or otherwise encourages another to commit a crime is still regarded as a party to the underlying crime as at common law, even though the labels principal in the first degree, principal in the second degree, and accessory before the fact are no longer used, and even though it usually does not matter whether the aider and abettor is or is not present at the scene of the crime").

What has been set forth is settled criminal law, but, as we shall discuss momentarily, one part of the instruction on joint participation on the February 19 trafficking charge was not correct. A judge need charge on the defendant's presence at the scene of a crime in a prosecution proceeding on a joint participation theory only to the extent that the factor has legal significance. As to the February 19 trafficking charge, the factor could have been omitted altogether, or referred to briefly to let the jury know that the defendant's presence at the...