Com. v. Campiti, 91-P-1037

• Decision Date: 07 August 1996
• Docket Number: No. 91-P-1037,91-P-1037
• Parties: COMMONWEALTH v. Francesco CAMPITI.
• Court: Appeals Court of Massachusetts

Page 1308

668 N.E.2d 1308

41 Mass.App.Ct. 43

COMMONWEALTH v. Francesco CAMPITI.

No. 91-P-1037.

Appeals Court of Massachusetts,

Hampden.

Argued June 13, 1994.

Decided Aug. 7, 1996.

[41 Mass.App.Ct. 44] Vincent A. Bongiorni, Springfield, for defendant.

Ellen Berger, Assistant District Attorney, for Commonwealth.

Before ARMSTRONG, SMITH and LAURENCE, JJ.

ARMSTRONG, Justice.

The defendant, alleged to be one of the leaders of a drug importing and distribution business operating in the Springfield-Hartford area, appeals from convictions on five indictments for trafficking in cocaine in amounts exceeding 200 grams. He was sentenced to five terms of from ten to fifteen years in State prison, four consecutive and one concurrent. Although the convictions were in 1989, changes of counsel and proceedings on a motion for a new trial and other postconviction motions (he appeals also from their denial) delayed final assembly of the record until June, 1993. Extensive briefing delayed arguments for another year.

MOTION FOR A REQUIRED FINDING

We outline the facts, by which we mean the evidence most favorable to the Commonwealth, in connection with the defendant's motion for a required finding of not guilty on all of the indictments.

The Commonwealth's evidence tended to show that the defendant was a major importer Rego testified to a second occasion in September, 1986, when he and the defendant flew down to Fort Lauderdale. Rego, joined by his wife, stayed at the Marina Bay Motel. The defendant stayed at a "luxury condominium" on the "G[alt] Ocean Mile." The defendant purchased one kilo of cocaine and brought it to the Marina Bay Motel, where, again, it was concealed in Rego's clothing. They flew back together to Bradley Field, drove to Williams Street in Springfield, where the defendant kept a safe house, and divided the kilo into packets for sale. The defendant had the key to the Williams Street house.

                and distributor of cocaine in Western Massachusetts and Connecticut.  Based in Springfield, he would purchase cocaine by the kilogram, or multiple kilograms (kilos), in Florida from Joseph Fafone, 1 transport it to the Springfield-Hartford area, and distribute it through several intermediaries, including Joseph Rego, Joseph Labriola, and Gary Westerman, who in turn sold cocaine to pushers. 2  Two of the intermediaries, Rego and Labriola, testified as prosecution witnesses, and, on the basis of their testimony alone, the Commonwealth satisfied its burden.  Rego testified that in June of 1986, he traveled with the defendant and Westerman to the Marina Bay Motel in Fort Lauderdale, Florida, where the defendant purchased one kilo of cocaine.  He gave the kilo to Westerman, instructed Westerman to return to Massachusetts, distribute it, and return to the motel as soon as possible with the proceeds.  Westerman did so, returning three or four days later.  He gave the proceeds to the defendant, who drove to Boca Raton (Fafone's home) and returned with two kilos of cocaine.  Westerman and Rego each concealed a kilo, broken down into one-ounce packets, in their clothing, and the three flew back to Bradley Field (in Connecticut) together.  Rego transferred his kilo to the defendant in the airport, and Westerman's girlfriend then drove the defendant and Westerman (who lived in Westfield) home
                

In October, 1986, Rego drove to Fort Lauderdale with his wife and her daughter, and checked into the Sealord Motel. The three took a sidetrip by plane to Orlando, going to Disney World, then flew back to the Sealord Motel. There they met the defendant. Rego drove with the defendant to Fafone's condominium in Boca Raton, where the defendant obtained one kilogram of cocaine. This was placed under the back seat of Rego's rental car, and Rego, his wife, and her daughter drove back to Massachusetts. On the defendant's return to Massachusetts, Rego delivered the kilo to the defendant in a parking lot near a rotary in Agawam.

Joseph Labriola's testimony furnished a basis for three additional instances wherein the defendant possessed cocaine in kilo quantities in Massachusetts. In one instance Labriola accompanied the defendant to Florida to purchase kilos from Fafone. Characteristically, the defendant had Labriola physically transport the purchase--two kilos--back to New England. Labriola took it to a Rocky Hill, Connecticut, stash house. There he and the owner of the house, DiPietro, at the defendant's direction, cut one of the kilograms and distributed it in that area. Labriola transferred the other kilo to the defendant's nephew at an inn on the Connecticut-Massachusetts border for delivery to the defendant. On another occasion the defendant had Labriola come to a stash house on Williams Street in Springfield to assist him in cutting a kilo into retail quantities.

On November 17, 1986, the day the police executed search warrants simultaneously at the defendant's house in Agawam, Westerman's house in Westfield, and the stash house on Williams Street in Springfield, one of the defendant's associates, Sonny Pepe, was able to smuggle a kilo out of the Williams Street stash house (according to what the defendant later told Labriola) just ahead of the officers' entry. Four hundred twelve grams of cocaine were recovered by the police from Westerman's house. This In the evidence described so far, without more, the judge had ample reason to deny the motion for required findings on any or all the indictments. ⁴

quantity also, because in excess of two hundred grams, satisfied the terms of the indictments, so long as the jury found, as they could on the evidence, that the cocaine, although at Westerman's house, was possessed by the defendant through Westerman as his agent; for possession can be shown through evidence not only of actual, in-hand, exclusive possession, but, "in the case of constructive possession, knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Rosa, 17 [41 Mass.App.Ct. 47] Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984), quoting from Commonwealth v. Deagle, 10 Mass.App.Ct. 563, 567, 409 N.E.2d 1347 (1980). The testimony of Rego and Labriola established that the defendant made it a point to have the cocaine he purchased from Fafone in Florida transported to New England as much as possible in the actual possession of his agents, who did with it what he directed after they arrived. This tactic reduced his own risk of detection, but it could not lessen his criminal responsibility for possession because of the principal-agent relationship between him and those in actual possession of the drugs. ³

MATTER RELATING TO INDICTMENTS

The defendant argues that the grand jury which, on January 30, 1987, returned the indictments on which the defendant was ultimately convicted (this is the "first" grand jury referred to in Commonwealth v. Westerman, 414 Mass. at 703, 611 N.E.2d 215) was unlawfully extended, and thus was without lawful authority to sit, after October 3, 1986. (Hence, the defendant argues, the indictments were invalid, and the motion to dismiss them should have been allowed.) The grand jury began sitting in July, 1986, and, by reason of G.L. c. 277, § 2C (establishing the term of the Hampden County grand jury at four months), was scheduled to expire October 3. A grand jury may be extended, however, on written motion by the district attorney, upon approval by the court. G.L. c. 277, § 1A, inserted by St.1952, c. 494. The problem in this case is that the written notice, or motion, by the district attorney is date-stamped October 24, 1986.

We assume, as the parties do, that a motion for extension must be filed during the The defendant argues that the indictments returned by the grand jury were for instances of trafficking in cocaine different from the instances upon which the defendant was found guilty by the jury. The contention arises out of the welter of cocaine trafficking and distribution evidence considered by the grand jury. On January 30 the grand jury handed down numerous indictments against Campiti, which, by the time of trial in early 1989, had been reduced to five in number on which the Commonwealth elected to proceed. All of these indictments as well as some of those that were dismissed read identically, except for the date assigned to the offense; that is to say, each indictment was for trafficking in cocaine in an amount of 200 grams or more, and the five dates assigned were "on or about" the first (87-310), fourth (87-311), and eighth (87-312) of November, 1986, and "on or before" the seventeenth of the same month (87-326 and 87-329). ⁶

                life of the grand jury. 5  It appears, however, from the affidavits of the assistant district attorney and the assistant clerk assigned to the session that a written motion was before the judge on September 30, 1986, and, as appears from the stenographer's notes that day, that the judge orally allowed an extension, specifically contemplating that the grand jury would hear additional evidence on October 23 and 24 and would then complete its business.  On October 24, however, upon noticing that there was no signed order reflecting that extension, another motion was presented to the judge seeking extension for the sole purpose of "complet[ing] an investigation now in progress," and a separate order was prepared and entered extending the life of the grand jury until it should complete that investigation.  Whether this be regarded as the correction of a clerical error (i.e., the failure to docket the extension order on October 3) or as a second extension within the life of the grand jury (as extended by the judge's allowance of the undocketed written motion of September 30), it is clear that, on these facts, the grand jury did not expire prior to its return of the indictments on January 30, 1987
                

On February 23, 1989, at the start of the trial (following selection of the jury the previous day), the Commonwealth filed a motion to...