Com. v. Bongarzone

• Decision Date: 13 October 1983
• Citation: 390 Mass. 326,455 N.E.2d 1183
• Parties: COMMONWEALTH v. Peter BONGARZONE (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1183

455 N.E.2d 1183

390 Mass. 326

COMMONWEALTH v. Peter BONGARZONE (and five companion cases ¹ ).

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued May 2, 1983.

Decided Oct. 13, 1983.

J. Russell Hodgdon, Boston, for Paul Smith.

Anthony M. Traini, Boston, for Gordon P. Trapp.

James F. Horan, Chestnut Hill, for Joseph Carfagna.

Alfred Paul Farese, Everett, for Peter Bongarzone.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

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

LIACOS, Justice.

Peter Bongarzone, Joseph Carfagna, Gordon Trapp, and Paul F. Smith were convicted by a jury of violating the marihuana trafficking statute, G.L. c. 94C, § 32E(a ), clause 2, as appearing in St.1980, c. 436, § 4. They received sentences of from five to seven years at the Massachusetts Correctional Institution at Walpole (M.C.I., Walpole), with the exception of the defendant Trapp, who received a sentence of from six to eight years. The defendants Bongarzone and Carfagna were also convicted of violating G.L. c. 268A, § 2(a ) (bribery), and received concurrent sentences of from two to three years. The defendants appealed, and we transferred the appeal here on our own motion.

The defendants raise the following issues: (1) whether the indictments should have been dismissed because of the false testimony of a police officer before the grand jury; (2) whether the trial judge should have granted motions of Carfagna, Trapp, and Smith to sever; (3) whether either the substantive or penalty provisions of G.L. c. 94C, § 32E(a )(2), are invalid; (4) whether the trial judge should have granted Bongarzone's and Trapp's motions for required findings of not guilty; (5) whether the trial judge failed to instruct the jury correctly; and (6) whether Trapp's motion to suppress should have been granted. We shall review the facts and consider those issues necessary for the disposition of these appeals.

According to the Commonwealth's main witness, Weymouth police officer Robert Dalrymple, this tangled tale of trickery began with a telephone call to Officer Dalrymple at his home at 8:15 P.M., on the evening of January 21, 1981. The call was from Bongarzone, a person known to Dalrymple. Bongarzone requested Dalrymple don his uniform and proceed to the Bongarzone residence located in Weymouth. Without the benefit of any further explanation, Officer Dalrymple did so. Dalrymple knew Bongarzone because he had engaged Bongarzone for several years to deliver heating oil to his home and was a close friend of Bongarzone's brother.

Bongarzone met Dalrymple at the front door. The two men then walked through the living room to the kitchen, past three white males unknown to the officer. Bongarzone inquired whether Officer Dalrymple "would like to earn $10,000." He explained that "an acquaintance of his had ripped off over $100,000 worth of marijuana from two dealers in Hull." With those words, Bongarzone made a gesture toward the living room, and Carfagna joined the pair in the kitchen. Bongarzone then elaborated on the circumstances. He told Officer Dalrymple that Carfagna had stolen the marihuana, that Carfagna had been threatened with "bodily harm" if he did not return it, and that "this marijuana had originally come up from Florida and that the two dealers in Hull had ripped it off from two dealers in Rhode Island."

Bongarzone also laid out a scheme for regaining possession of the marihuana. Officer Dalrymple was to obtain a marked police cruiser and follow Carfagna, who would be driving a Ford Bronco vehicle containing the marihuana, to a nearby tavern called the Commercial House. The two dealers from Hull would take possession of the Bronco and drive off. Officer Dalrymple would follow them, stop them for a supposed traffic infraction, and "chew their ass out, let them go, confiscate the marijuana and return it to Peter's [Bongarzone's] house." With the plan laid out, the three went outside to the backyard to examine the marihuana and the Ford Bronco. ² Carfagna opened the door to the vehicle and an interior dome light went on. Officer Dalrymple testified at the trial that he "observed over ten Hefty green trash bags in the back of the Bronco. I smelled marijuana, and I was told that was the marijuana." The three men returned to the kitchen where there was some mention of a shotgun and two men with an automobile with a Rhode Island license plate. Dalrymple told Bongarzone and Carfagna that he would try to make the necessary arrangements, and he departed.

At the Weymouth police station, Officer Dalrymple conferred with Lieutenant Rodney Rumble and Detectives Robert Burke and Warren Paul Burke, and informed them of the situation. A scheme to capture the marihuana and the two Hull dealers was devised. Dalrymple obtained a cruiser, returned to the Bongarzone residence, and met briefly with Bongarzone and Carfagna. Officer Dalrymple then got back into the cruiser and waited for the Ford Bronco to be driven to the Commercial House.

Carfagna drove the Bronco out of Bongarzone's driveway, and Dalrymple followed it to the Commercial House. Carfagna parked the Bronco, alighted, and entered the tavern. Within fifteen seconds, Carfagna came back out in the company of two males and a female. The two males looked in the back window of the Bronco and then entered the vehicle. The Bronco soon passed directly in front of the cruiser, and Officer Dalrymple observed that it contained the green trash bags.

Officer Dalrymple followed the Bronco for about one mile. When it stopped for a red traffic light, he pulled the cruiser directly in front of it, alighted, and drew his revolver. Other police officers arrived on the scene and approached the Bronco with drawn revolvers. Officer Dalrymple spoke with the defendant Trapp, who was driving. Dalrymple also spoke with the passenger, the defendant Smith. Smith admitted that the vehicle belonged to him. The police found fifteen green trash bags filled with a substance later determined to be marihuana, each weighing over twenty pounds, in the rear of the Bronco. There was testimony that the odor of marihuana was emanating from the bags.

The police took Smith and Trapp, who both resided in Hull, in custody, advised them of their Miranda rights, and questioned them concerning the incident. Smith told the police that a person named "Joker" ³ had driven him to the Commercial House in the Bronco. That person took the Bronco and left. After the Bronco was returned, Smith and Trapp started to drive back to Smith's home in Hull. Smith denied any knowledge of the presence of marihuana in the Bronco when the police stopped them. Trapp told the police that he had received a call that night requesting that he come to the Commercial House and drive an intoxicated Smith home. He stated that he secured a ride to the Commercial House and, at the time of his arrest, was driving Smith home. He also denied knowing where the marihuana came from. At trial, the Commonwealth introduced evidence demonstrating that Trapp did not possess a driver's license.

Neither Bongarzone nor Carfagna was arrested that night, and complaints against them were not issued until January 30, 1981. On January 24, Bongarzone telephoned Officer Dalrymple and arranged a meeting. Dalrymple testified, "Peter said to me he was sorry he got me involved. He was sorry he got himself involved. The only thing he saw was money flashing before his eyes." On February 1, 1981, Dalrymple spoke again with Bongarzone, who had by then been indicted. Officer Dalrymple told Bongarzone that he needed a good lawyer and recommended a lawyer who had represented Dalrymple successfully in the past. There was also testimony indicating that Officer Dalrymple had spoken with Carfagna and Bongarzone at a local tavern in July. ⁴

During the trial, the attorneys for the defendants sought to impeach the credibility of Officer Dalrymple. They conducted exhaustive cross-examinations designed to bring out that Dalrymple had admitted at the suppression hearing that he had not testified truthfully concerning certain facts during his prior testimony at a probable cause hearing. These facts related to whether Officer Dalrymple had observed the marihuana while the Bronco was parked in the backyard of Bongarzone's house on January 21, 1981. ⁵ Also, at all times prior to the trial, Officer Dalrymple had testified that only Carfagna accompanied him out of the house to observe the marihuana through puncture holes in the trash bags. At trial, Dalrymple testified that both Bongarzone and Carfagna had accompanied him and that now he had some doubt as to whether he had seen the marihuana in the Bronco in Bongarzone's backyard, and wished to give Bongarzone the benefit of the doubt. He testified that he originally did not place Bongarzone in the backyard simply as a means of aiding Bongarzone's defense. There was testimony that Officer Dalrymple felt that Bongarzone and Carfagna should not have been prosecuted.

Two of the defendants, Carfagna and Smith, testified at trial. Their testimony was essentially consistent and was in accord with the statements Smith and Trapp made to the police after their arrest. This testimony indicated that the "true owner" of the marihuana was one Bernard Small, and that Officer Dalrymple was the one who had stolen it. Based on information provided by Smith, Small had accused Carfagna of stealing it. Later, according to Carfagna's testimony, Small learned the identity of the true thief, and Carfagna offered to ask Bongarzone to arrange a meeting between Small and Officer Dalrymple. Small accepted, saying that he would "take care" of them. Bongarzone agreed, made the necessary arrangements, and the parties met at Bongarzone's house.

Smith claimed he entered the picture as an unknowing participant. He testified that he had loaned his Bronco to Small because Small wanted to confer with Carfagna concerning the stolen marihuana....