Com. v. Sheline

Citation461 N.E.2d 1197,391 Mass. 279
PartiesCOMMONWEALTH v. Howard SHELINE.
Decision Date24 February 1984
CourtUnited States State Supreme Judicial Court of Massachusetts

Brownlow M. Speer, Boston, for defendant.

Joseph B. Green, Asst. Dist. Atty. (Charles M. Wyzanski, Asst. Dist. Atty., with him), for the Commonwealth.

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

O'CONNOR, Justice.

The defendant, Howard Sheline, was convicted by a jury of knowing possession of a class B controlled substance (cocaine) with intent to distribute. He was fined and sentenced to a term of one year in a house of correction, with six months to be served and the balance suspended for two years. 1 The Appeals Court summarily affirmed the conviction, Commonwealth v. Sheline, 14 Mass.App.Ct. 1305 (1982), and this court allowed the defendant's application for further appellate review. The defendant argues that the trial judge erred (1) by denying his motions for a required finding of not guilty presented at the close of the Commonwealth's case and again at the close of all the evidence, (2) by excluding testimony of his reputation for truth and veracity, (3) by admitting in evidence a Department of Public Safety certificate bearing the defendant's name and alleged alias, (4) by refusing to ask prospective jurors on voir dire if they would believe the testimony of a police officer more than the testimony of any other witness, and (5) in instructing the jury. We find error only in the admission of the unsanitized certificate, and we conclude that that error was not prejudicial. Accordingly, we affirm the conviction.

The following facts were stipulated by the parties at trial. A package was brought to the office of the United Parcel Service (U.P.S.) in Fort Lauderdale, Florida, on September 28, 1979. The package was addressed to "Howie Tuna, R. 95 East Main Street, Gloucester, Massachusetts 01930." The return address was "M. Shark, 940 Sweetwater Lane, Boca Raton, Florida 33432." The U.P.S. contacted the Florida office of the United States Drug Enforcement Agency (D.E.A.). The D.E.A. took custody of the package after examining its contents, and on October 4, 1979, sent the package to its Boston office.

The jury could have found the following facts from the Commonwealth's evidence. On October 11, 1979, an agent of the Boston office of the D.E.A. delivered the package to the Gloucester police station, where State and local police officers examined its contents. The package contained forty-eight grams of a powder consisting of 23.5% cocaine and having a street or retail value of approximately $4,800. The officers decided to make a "controlled delivery" of the package to the address written on the package. "R. 95 East Main Street" referred to the rear of 95 East Main Street.

At that address was the Portside Marina, a small building which contained a bait and tackle shop and the business office of a marina. Clayton Brooks leased and operated Portside Marina. He employed the defendant, who was known as "Howie," to take care of the shop while he was not there, and to do "odd jobs" around the marina. Both Mr. Brooks and the defendant would sign for packages that were delivered to the marina. By October 11, most boats had left or were leaving the marina, and the store's business was winding down. Mr. Brooks would "drop in" most days but had ceased working full time. Other than local lobster boats, there remained only three or four pleasure boats, all of which had been at the marina during the boating season. Before October 11, 1979, none of these boats had ever received a package at Portside Marina, and no packages were delivered by U.P.S. to Portside Marina from October 11, 1979, until at least the end of that year.

During the week before the controlled delivery, the defendant twice asked the regular U.P.S. driver if there were any packages for him. On each occasion, the driver said, "No." The defendant had never before asked that driver about the delivery of any packages.

The controlled delivery was made on October 11, 1979. A State police officer, James Jajuga, dressed in a U.P.S. uniform and driving a U.P.S. truck, stopped at the rear of 95 East Main Street. He carried the package and a clipboard with a form used by U.P.S. to record the signature of package recipients. As the U.P.S. truck arrived, the defendant left his seat at the Clam Shack restaurant, located adjacent to Portside Marina, and walked toward that building. The defendant stopped at the building and fumbled with its lock as Jajuga walked by. Jajuga stopped and walked over to the defendant. He pointed to the package and asked where the address was. The defendant answered, "Right here." The defendant then opened the door to the building and walked inside. As Jajuga followed him inside, he pointed to the name on the package and asked, "What about this guy?" The defendant replied, "He's on one of the boats out back." Jajuga brought the package into the bait and tackle shop and put it on a counter. He asked the defendant if the addressee would pick up the package, and the defendant responded, "Yes, he will stop in." The defendant then signed his name to the U.P.S. delivery record, and Jajuga left the building and returned to the Gloucester police station.

After signing for the package, the defendant returned to the Clam Shack restaurant, leaving the package in the bait and tackle shop. About thirty minutes later, the defendant went out the back door of the restaurant. He stood at the top of the stairs for about a minute, observing the parking area between Portside Marina and the Claim Shack. He came down the stairs and walked to the corner of the Claim Shack building. The defendant then looked around the parking lot, and into the cab and back of a pickup truck. After taking another look around the parking lot, the defendant walked toward the marina office. At that time, Clayton Brooks, the defendant's employer, arrived. The defendant and Mr. Brooks conversed for fifteen or twenty seconds, and then entered the office together. The defendant took the package from where it had been on top of the counter and put it behind the counter.

A few minutes later, the police entered the marina office with a warrant to search for narcotics. After advising the defendant of his Miranda rights, the police asked him if he knew Howie Tuna. The defendant stated that he did not. When asked if he had ever received a package from "the person named" (inferentially, the return addressee M. Shark), or anyone else, the defendant replied that he had not. Upon further questioning at the police station, the defendant stated that he did not know whom the package was for, he just signed for it. In response to questioning about the name Howie Tuna, the defendant stated that he thought it was the name of one of the boats in the marina.

1. Sufficiency of the evidence. 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. The defendant argues on appeal that it was error to deny his motions because the evidence did not permit a finding of knowing possession. "The standard which we apply in reviewing the propriety of the denial of a motion for a required finding of not guilty is 'whether the evidence, read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt.' " Commonwealth v. Amado, 387 Mass. 179, 186, 439 N.E.2d 257 (1982), quoting Commonwealth v. Basch, 386 Mass. 620, 622, 437 N.E.2d 200 (1982). See Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979). We consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time. We also consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case. Commonwealth v. Basch, supra at 622 & n. 2, 437 N.E.2d 200. In this case, the Commonwealth's proof did not deteriorate after its case closed. Consequently, the issue before us is whether the evidence introduced by the Commonwealth "was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt." Commonwealth v. Amado, supra.

In the absence of other evidence, possession of an unopened package, received by mail or common carrier and containing drugs, does not warrant an inference beyond a reasonable doubt that the defendant possessed the drugs knowingly. See Commonwealth v. Aguiar, 370 Mass. 490, 499, 350 N.E.2d 436 (1976). Accord Hilding v. State, 291 So.2d 111, 112-113 (Fla.Dist.Ct.App.1974); Rutskin v. State, 260 So.2d 525, 525-527 (Fla.Dist.Ct.App.1972); People v. Ackerman, 2 Ill.App.3d 903, 905-906, 274 N.E.2d 125 (1971); State v. Richards, 155 N.J.Super. 106, 109-119, 382 A.2d 407 (1978); People v. Patello, 41 A.D.2d 954, 954-955, 344 N.Y.S.2d 33 (N.Y.1973); Commonwealth v. Rambo, 488 Pa. 334, 335-340, 412 A.2d 535 (1980); Commonwealth v. Sterling, 241 Pa.Super. 411, 413-417, 361 A.2d 799 (1976). In this case, however, there was other evidence that the defendant knew the contents of the package.

The following facts, warranted by the stipulation and the evidence, are especially significant: The defendant twice inquired of the regular U.P.S. driver whether there were any packages for him, never having done so before. Approximately one week before those inquiries were made, the package that was ultimately delivered to the defendant on October 11, 1979, had been brought to U.P.S. in Florida for shipment to Howie Tuna at the marina. The defendant's first name is Howard and his employment at the marina was such that he would receive packages directly from the U.P.S. deliveryman. None of the pleasure boats at the marina on October 11, 1979, had ever...

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