Com. v. Cantres

• Decision Date: 22 June 1989
• Citation: 540 N.E.2d 149,405 Mass. 238
• Parties: COMMONWEALTH v. Jose CANTRES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 149

540 N.E.2d 149

405 Mass. 238

COMMONWEALTH v. Jose CANTRES.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 3, 1989.

Decided June 22, 1989.

Thomas P. Elias, Lowell, for defendant.

LaDonna J. Hatton, Asst. Dist. Atty., for the Com.

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

O'CONNOR, Justice.

A District Court judge found probable cause on a complaint alleging that the defendant "did conspire with Philip A. DeMarco to violate the provisions of G.L. c. 94C [Controlled Substances Act], to wit: Distribution of Heroin, in violation of G.L. c. 94C, § 40." A grand jury subsequently indicted the defendant. The indictment stated that, "Jose Cantres did conspire with Philip DeMarco to violate the Controlled Substance Act." The specific violation of the Controlled Substances Act contemplated by the conspiracy was not specified. After discovery, including the Commonwealth's furnishing the defendant with relevant police reports and a tape recording of the probable cause hearing, the case was tried before a judge without a jury. On the day of the trial, the defendant orally requested a bill of particulars. That request was denied. At the close of the Commonwealth's case, and again at the close of all the evidence, the defendant moved for a required finding of not guilty. On each occasion, the motion was denied. The defendant was found guilty and was sentenced to a term of from eight to ten years at the Massachusetts Correctional Institution at Cedar Junction. He now appeals the conviction. We transferred the appeal to this court on our own motion. We affirm.

Article 12 of the Massachusetts Declaration of Rights provides that "[n]o subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him...." The defendant claims that he was denied his rights under art. 12 because the indictment did not allege the specific substantive violation of c. 94C that he was charged with conspiracy to commit and, in addition, his motion for particulars was denied. The defendant claims that he was neither put on notice of what he had done nor of the sentence that might be imposed on him.

It is true, as the defendant argues, that, "[i]f an indictment fails to allege any fact necessary to constitute an offence, even statutory, it is defective." Commonwealth v. Bracy, 313 Mass. 121, 124, 46 N.E.2d 580 (1943). It is also true that, if an indictment fails to state a crime, no court has jurisdiction to entertain it, Commonwealth v. Andler, 247 Mass. 580, 581-582, 142 N.E. 921 (1924), and the jurisdictional question may be raised at any time. See id. at 581, 142 N.E. 921. "In order to comply with [art. 12], the complaint or indictment must contain a 'plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.' Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979)." Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987).

In Commonwealth v. Soule, 6 Mass.App.Ct. 973, 973-974, 384 N.E.2d 235 (1979), the Appeals Court considered an indictment that is indistinguishable in any material way from the indictment in the instant case. In Soule, supra, the indictment was for "unlawful conspiracy to violate the Controlled Substances Act[,] G.L. c. 94C." The defendant moved to dismiss the indictment on the same ground as the one the defendant relies on here, that is, that the indictment failed to identify the substantive crime that was the object of the conspiracy. That defendant argued, as does the present defendant, that, since the punishment for conspiracy to violate any provision of c. 94C "shall not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy" (G.L. c. 94C, § 40, inserted by St.1971, c. 1071, § 1), the failure of the indictment to specify which substantive violation the defendant conspired to commit left the defendant without notice of the possible sentence that could be imposed on him. The Appeals Court rejected that argument, reasoning that, "[t]he gravamen of the conspiracy offense is the unlawful agreement, 'the unlawful confederacy to do an unlawful act, or even a lawful act for unlawful purposes....' An indictment for conspiracy need state the object of the conspiracy only with the certainty necessary to establish the unlawful common intent and to identify the offense which the perpetrators conspired to commit." (Citations omitted.) Soule, supra at 973-974, 384 N.E.2d 235. By implication, the court ruled that an allegation of conspiracy to violate the Controlled Substances Act was adequate identification of the object of the conspiracy. The holding in Soule was that an indictment such as the one in issue, whether or not supplemented by particulars, satisfies art. 12 of the Massachusetts Declaration of Rights. The agreement to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means is the essence of conspiracy and must be alleged in the indictment. Commonwealth v. Chagnon, 330 Mass. 278, 280, 113 N.E.2d 50 (1953). Commonwealth v. Hunt, 4 Met. 111, 123 (1842). The object crime, while important, is secondary, and need not be described with the particularity for which the defendant contends.

The defendant argues that Commonwealth v. Soule, supra, does not control this case because in Soule, unlike here, the Commonwealth filed a bill of particulars. It is clear, however, that the Appeals Court did not reason in Soule that the particulars filed there elevated a defective indictment to a valid one. Particulars cannot save a defective indictment. Commonwealth v. Ries, 337 Mass. 565, 580, 150 N.E.2d 527 (1958). Rather, the teaching of Soule, with which we agree, is that a valid indictment need not notify the defendant of the sentencing possibilities to which he is exposed except in a general way.

A timely request for particulars is an appropriate way to general notice with respect to the substantive violation contemplated by the conspiracy and therefore the precise sentence exposure. Indeed, G.L. c. 277, § 38 (1986 ed.), provides: "In a prosecution under any provisions of chapter ninety-four C, for unlawfully manufacturing, dispensing or distributing a controlled substance ... the defendant shall be entitled to a bill of particulars." It is unclear whether the defendant argues that, even if the indictment met constitutional requirements, the indictment should nevertheless be dismissed because his motion for particulars was denied. If such an argument is made, we reject it for several reasons. Since the indictment was valid, the absence of particulars is not jurisdictional. The defendant did not move in the trial court for dismissal of the indictment. It is too late, except on jurisdictional grounds, to seek dismissal for the first time in this court. Furthermore, G.L. c. 277, § 38, does not literally apply to prosecutions for conspiracy. In addition, it is questionable whether § 38 should be construed as entitling a defendant to particulars when the first request therefor is not made until the day of trial. In any event, even if the judge's denial of the defendant's last minute request for particulars be deemed erroneous, the error was harmless. As a result of the pretrial discovery described above, the defendant was fully aware before trial that the thrust of the Commonwealth's case would be what it turned out to be, namely, that the defendant and DeMarco conspired to distribute heroin. See Commonwealth v. Baker, 368 Mass. 58, 77, 330 N.E.2d 794 (1975); Commonwealth v. Williams, 8 Mass.App.Ct. 283, 286, 393 N.E.2d 937 (1979).

The defendant's next argument on appeal is that the trial judge erred in failing to apply "Wharton's Rule." Wharton's Rule provides "that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as necessarily to require the participation of two persons for its commission." Commonwealth v. Schoening, 379 Mass. 234, 241, 396 N.E.2d 1004 (1979), quoting Commonwealth v. Favulli, 352 Mass. 95, 108-109, 224 N.E.2d 422 (1967). See United States v. Previte, 648 F.2d 73, 76-77 (1st Cir.1981). The defendant argues that distribution of heroin requires two persons, and that therefore, he cannot be prosecuted for conspiracy with one other person to commit that crime. We have not yet had occasion to determine whether Wharton's Rule is generally applicable in the Commonwealth, and we do not determine that question today. See Schoening, supra. We do, however, conclude that the rule will not apply to prosecutions for conspiracy to distribute controlled substances.

Even if it is generally applicable in the Commonwealth, Wharton's Rule has "vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary." Iannelli v. United States, 420 U.S. 770, 782, 95 S.Ct. 1284, 1292, 43 L.Ed.2d 616 (1975). With reference to the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §§ 801 et seq.), the United States Court of Appeals for the Second Circuit has concluded that "[t]he structure and legislative history of the drug abuse act provide persuasive evidence that, because of the special dangers which conspiracies to distribute controlled drugs pose to society, Congress did intend that a conspiracy to violate the Act should constitute a separate crime in addition to the substantive offense." United States v. Bommarito, 524 F.2d 140, 143- 144 (2d Cir.1975). That court noted that § 406 of the Federal Act "makes it a crime to conspire 'to commit any offense defined in this subchapter' " (emphasis in original). Id., quoting 21 U.S.C. § 846. The court reasoned that "[t]he all-inclusive language of § 846 is not accidental but rather is consistent with the Act's overall aim of strengthening remedies available against organized traffic in drugs...