Com. v. Saletino
| Decision Date | 10 August 2007 |
| Docket Number | SJC-09835. |
| Parties | COMMONWEALTH v. Pedro SALETINO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Paul R. Rudof, Committee for Public Counsel Services (Nona E. Walker, Committee for Public Counsel Services, with him) for the defendant.
Jonathan M. Ofilos, Assistant Attorney General, for the Commonwealth.
Matthew A Kamholtz, Boston, for National Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.
The defendant was convicted after a jury trial of trafficking in 200 grams or more of cocaine, G.L. c. 94C, § 32E(b)(4); trafficking in twenty-eight grams or more of cocaine, G.L. c. 94C, § 32E(b)(2); and conspiracy to violate the Controlled Substances Act, G.L. c. 94C, § 40. The defendant appealed, and we transferred this case from the Appeals Court on our own motion. The defendant now argues that the trial judge erred in denying his motion to present a defense of sentencing entrapment,1 in refusing his requests for jury instructions on sentencing entrapment and a missing witness, and in giving a joint venture instruction. Because we conclude that none of these rulings was erroneous, we affirm the defendant's convictions.2
Background. We summarize the essential facts, which are not contested, reserving certain details for our discussion of the issues raised.
During the summer of 1993, the defendant was the target of an undercover narcotics operation. A State police trooper posed as a narcotics trafficker from Cape Cod who was looking for a new source of supply of cocaine. A confidential informant3 had a relationship with the defendant, and the plan was for the informant to provide a cover story for the undercover trooper.
At approximately 5 P.M. on August 3, the informant introduced the undercover trooper to the defendant at a meeting at 269 Meridian Street in the East Boston section of Boston. The undercover trooper and the defendant discussed the quality of the cocaine that the trooper wanted to purchase. The three men then got into the trooper's vehicle and drove to Lynn. During the drive, the trooper and the defendant continued to discuss the quality of the cocaine that the trooper wanted to purchase, and the defendant provided assurances as to its quality. The trooper stated that if the quality of the cocaine was good, he could "probably do a whole package."4 On their arrival at 48 Essex Street in Lynn, the defendant told the trooper that if he should be asked where he sells, he should not tell "them" because "the people will go down there and take over our business." The defendant asked the trooper to give the money for the cocaine to the informant and asked the informant to go into 48 Essex Street with him. The trooper asked the defendant to confirm the price of the cocaine, which the defendant did. The trooper gave the money to the informant, and the defendant and the informant walked to the rear of 48 Essex Street and entered through the porch area. A few minutes later, the informant returned to the trooper's vehicle and handed him a plastic bag containing a "rock and white powder substance."5
On August 4, the undercover trooper spoke with the defendant over the telephone three times. The trooper initiated each call, reaching the defendant at a "house" telephone number in East Boston. During the first conversation, the trooper told the defendant that he was content with what he had purchased and he wanted to know if the defendant could get him a price on a kilogram of cocaine. The defendant told the trooper that he would have to check and get back to him. During the second call, the defendant stated that the owner of the cocaine had expressed concern about increasing the amount of cocaine from sixty-two grams to a kilogram. The trooper told the defendant that if he had known that there would be such concern, he would not have asked for such a large amount. The defendant said that he would talk to the owner of the cocaine and see what he could do and that he would get back to the trooper. During the third conversation, the defendant said that he had spoken with "his people" and that although they were concerned, they were willing to go forward with the transaction, but they wanted the defendant to check on the trooper's operation on Cape Cod and find out more about him. The defendant and the trooper arranged to meet the following day.
On August 5, the undercover trooper paged the informant, whom he knew was with the defendant. When the informant returned the call, the trooper spoke with the defendant. The defendant stated that he had an individual who was willing to sell a kilogram of cocaine for $24,000, but that they still needed to come down and see the trooper. The defendant and the trooper agreed to go together to Cape Cod. The trooper expressed concern to the defendant that the cocaine be of the same quality as the first purchase, and the defendant provided assurances that it would be. The defendant stated that the person who was providing the kilogram of cocaine, known as Chepe, was the person who had provided the earlier smaller amount, and that Chepe would procure the kilogram from one of his customers, Laurano Sanchez.
The undercover trooper waited in Bourne until he received a call from the informant. The trooper and another task force agent, who the trooper said was his partner in the Cape Cod area, went to the parking lot of a store and met the defendant and three other men, including the informant and a man who called himself "El Negreo." The trooper told the defendant that he wanted to take only the defendant and one other person to the house. The defendant, El Negreo, and the task force agent drove with the trooper in the trooper's vehicle to the prearranged location.
The undercover trooper and the task force agent gave the pair a tour, and the group discussed business on Cape Cod. During the conversation, the defendant asked the trooper for help setting up a point of distribution on Cape Cod. The defendant and the trooper engaged in further negotiations about the cocaine purchase. The trooper showed the defendant $25,000 in cash, which was $1,000 more than the negotiated price. The defendant again expressed his concerns about going from sixty-three6 grams to a kilogram, saying that he and El Negreo needed to get to know the trooper better before they did such a deal. The trooper said that he worked with credit, that people would provide money up front because they trusted him, and that he would make the purchases and bring the cocaine back and distribute it. The trooper also told the defendant that his usual source of supply was in Rhode Island, and that he would normally take one kilogram and get a second on consignment.
The defendant said that his people could do what the trooper suggested, but that they had to start the way that they were starting. The defendant also indicated that Chepe would receive about ten kilograms at a time, and that they would be able to accommodate any requests the trooper might have. The trooper stated that he would be ready to conduct the transaction the next day. Later that afternoon, the trooper spoke with the defendant7 and told him that he preferred to meet him the next day for the purchase of the kilogram because he wanted to bring his girl friend to make it look better.
On August 6, the defendant paged the undercover trooper. The trooper returned the call and stated that he was ready. At approximately 1:50 P.M., the trooper and the informant again went to 269 Meridian Street in East Boston and met the defendant and El Negreo. The defendant and El Negreo got into a small vehicle with Rhode Island registration plates and drove to 606 Summer Street in Lynn. The trooper followed them. The defendant, the trooper, the informant, and El Negreo went to the door, and the defendant knocked. The person who answered the door, Senaldo Berroa, said that Sanchez was on his way. The trooper said he would come back, but the other men told him not to worry and that he should come inside. The men entered the living room and engaged in discussions about the quality of the cocaine that the trooper was purchasing and business on Cape Cod. The defendant again assured the trooper that the quality of the cocaine would be the same as what he had purchased before. In response to a statement that the defendant had made that he wanted to open up a distribution point on Cape Cod, the trooper informed the defendant that he knew of an apartment that the defendant could use for $700 per month.
After approximately ten minutes, Sanchez arrived. The trooper told Sanchez that he was ready, and Sanchez tossed a set of car keys to Diamedes Ramirez, who was present in the living room, and told him to go outside and get "the bag." Ramirez left and returned a few minutes later with a large trash bag. The trooper and Sanchez went into the bedroom while the defendant remained in the living room. The trooper took a package that Sanchez removed from the bag. The trooper gave the keys to his vehicle to the informant and told him to get the money. The informant's exit was a prearranged signal to the police surveillance team that the trooper had seen the drugs and needed assistance placing people under arrest. The trooper made a small incision in the package and observed that it contained white powder that appeared to be cocaine.8 At this point, there was a knock on the door, and the trooper saw the informant at the threshold of the door. An officer from the police surveillance team was behind the informant. Berroa slammed the door, and El Negreo went to the door and tried to hold it closed. The defendant ultimately was arrested behind a coal bin in the basement of the house.9
Discussion. Because all of the defendant's claims on appeal were raised at trial, we review them for nonprejudicial error. See ...
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