Commonwealth v. Albert

• Citation: 745 N.E.2d 990,51 Mass.App.Ct. 377
• Decision Date: 15 September 2000
• Docket Number: P-722
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. JOHNNIE L. ALBERT 99-
• Court: Appeals Court of Massachusetts

745 N.E.2d 990 (Mass.App.Ct. 2001)

COMMONWEALTH vs. JOHNNIE L. ALBERT

99-P-722

Appeals Court of Massachusetts

September 15, 2000.

April 20, 2001

County: Suffolk

Present: Lenk, Dreben, & Gillerman, JJ.

Probable Cause. Search and Seizure, Probable cause, Standing to object. Controlled Substances. Conspiracy. Evidence, Certificate of drug analysis, Cumulative evidence.

Indictments found and returned in the Superior Court Department on January 2, 1997.

A pretrial motion to suppress evidence was heard by Catherine A. White, J., and the cases were tried before Robert A. Mulligan, J.

James R. Knudsen for Christopher Burnett.

Lisa J. Steele for Johnnie L. Albert.

Cathryn A. Neaves, Assistant District Attorney, for the Commonwealth.

DREBEN, J.

Acting on an anonymous tip, Boston police officers, on June 29, 1996, followed a blue truck to a Dunkin' Donuts shop in Revere. The driver and the passenger, one Carla Shaw, were known to the police as drug users.² Soon after Shaw went to a nearby phone booth, a red truck approached the blue vehicle. The officers, experienced in drug investigations, observed Shaw's hand go into the driver's side window of the red truck and come out in what they considered a drug transaction. After they followed the trucks, one of the officers saw the red truck's license plate and recognized that the red truck had a prior connection to drugs. When the trucks took different routes, the officers followed the blue truck and stopped it in Boston. The officers ordered the occupants out and noticed Shaw had a suspicious bulge under her shirt in "the top portion of her chest," which turned out to be eighty bags of crack cocaine.³ Some months later, as the result of the cooperation of one Kathleen Gatta, who was arrested on an unrelated charge and who had been induced to sell drugs by the defendants, codefendants Carla Shaw, Johnnie L. Albert, and Christopher Burnett were indicted and subsequently convicted of conspiracy to traffic in cocaine in an amount of twenty-eight grams or more.⁴

In this appeal by Albert and Burnett, the defendants assert the following: Albert claims that Shaw's arrest was illegal both because there was no probable cause to arrest her and because Boston police had no jurisdiction to stop her in East Boston for a crime they had observed in Revere. Burnett claims he was entitled to a required finding of not guilty because there was neither sufficient evidence to support the finding that the conspiracy involved cocaine nor that the amount was twenty-eight grams or more. He also argues the trial judge erred (1) by not charging the jury that the Commonwealth was required to prove that the defendants conspired to possess at least twenty-eight grams of cocaine on a single occasion, and (2) by impermissibly focusing on the certificate of analysis of the amount seized from Shaw in June, 1996, a time prior to Burnett's joining the conspiracy. We affirm the conviction of each defendant.

1. Albert's appeal.

Albert's appeal can be disposed of simply on the basis that he has no standing to raise the invalidity of Shaw's arrest and the seizure of drugs. Commonwealth v. Morrissey, 422 Mass. 1, 5 (1996). See Commonwealth v. Montes, 49 Mass. App. Ct. 789, 794 (2000). He was not tried for trafficking but rather for conspiracy. Since possession of cocaine is not an essential element of the conspiracy charge, he does not have automatic standing to challenge the search as it relates to the alleged conspiracy. Commonwealth v. Frazier, 410 Mass. 235, 245-246 (1991).⁵ That the Commonwealth did not raise the question of standing at the hearing on the motion to suppress⁶ or that the judge denied the motion on different grounds does not preclude us from affirming the ruling on the basis of standing. See Commonwealth v. Cruz, 430 Mass. 838, 844 (2000); Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 503 n.7 (1996), S.C., 425 Mass. 99 (1997).

There are also additional grounds for denying the motion to suppress. The motion judge's conclusion that Shaw's arrest was valid based upon Commonwealth v. Kennedy, 426 Mass. 703 (1998), is supported by her findings, albeit sparse, see Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984), and the evidence adduced at the hearing on the motion to suppress.

Although, unlike Commonwealth v. Kennedy, there was no evidence that the Dunkin' Donut shop was in a high crime area, the police had probable cause to arrest Shaw on the basis of a reasonable belief that an arranged drug transaction had occurred between a known drug user and a person driving a truck involved in a prior drug transaction.⁷,⁸

Nor were the police required to arrest Shaw immediately in Revere. Police have no constitutional duty to stop an investigation "the moment they have the minimum evidence to establish probable cause . . . ." Commonwealth v. Piso, 5 Mass. App. Ct. 537, 541 (1977), quoting from United States v. Hoffa, 385 U.S. 293, 310 (1966). It was only after the officers followed the trucks that one of the officers saw the red truck's license plate and became aware of the truck's prior connection to drugs. Moreover, "probable cause to arrest, once formed will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light." Commonwealth v. Walker, 370 Mass. 548, 560, cert. denied, 429 U.S. 943 (1976), quoting from United States v. Watson, 423 U.S. 411, 449 (1976) (Marshall, J., dissenting). Contrary to Albert's contention, there was nothing improper in the police keeping the blue truck under surveillance as it traveled to Revere, observing what happened there, and following the truck back to Boston where the police had jurisdiction to arrest Shaw.

2. Burnett's appeal.

The primary testimony against Burnett came from Kathleen Gatta, a woman who, because of her addiction to cocaine and her purchases on credit from Albert, became indebted to him, and was induced by him to sell cocaine. In the beginning, she dealt with Albert and Shaw and, after September, 1996, with Burnett, as well. During a period of a month or so, Gatta met Burnett two, three, or four times a day to pick up cocaine or to pay him money. Finding herself more and more trapped by her debts to Albert and Burnett and threatened by them if she did not pay, Gatta, when arrested in November on an old larceny charge, told police of the drug operation. Albert, Burnett, and Shaw were subsequently arrested.

a. Sufficiency of evidence.

The linchpin of Burnett's argument that there was insufficient evidence to show that the object of the conspiracy was to traffic in cocaine and in an amount in excess of twenty-eight grams is that he did not join the conspiracy until September, 1996. For this reason, he claims, the evidence of the certificate of analysis of the drugs seized from Shaw on June 29, 1996, cannot be the basis of proving the object of the conspiracy. The certificate of analysis of the eighty bags was introduced in evidence without objection and showed that the eighty bags contained cocaine weighing slightly more than thirty-five grams. Without this evidence, the argument goes, there was no showing that the parties conspired to possess twenty-eight grams. A corollary of his argument is that the Commonwealth is required to show possession of twenty-eight grams on a single occasion, rather than an aggregate of amounts possessed at different times.

Since there was no objection to the introduction of the certificate, the standard of review is whether there was "a serious and obvious error creating a substantial risk of a miscarriage of justice." Commonwealth v. Pares-Ramirez, 400 Mass. 604, 609 (1987). For purposes of discussion, we accept as valid that Burnett only joined the conspiracy in September, 1996, the time when Gatta began receiving drugs from him.⁹ This is not dispositive, as usually "a conspirator is held to adopt the acts of his co-conspirators which occurred prior to his entry into the conspiracy." Commonwealth v. Stasiun, 349 Mass. 38, 50 (1965), citing Commonwealth v. Rogers, 181 Mass. 184, 193-194 (1902). Indeed, even "[t]he date when a conspiracy is alleged to have begun is not, in effect, a wall behind which the court and jury may never look for the purpose of discovering facts that have a bearing upon the fact of the conspiracy itself." Stasiun, supra at 50, quoting from Commonwealth v. Beal, 314 Mass. 210, 227 (1943). Nevertheless, if the sole evidence of an agreement to traffic in the amount set forth in the indictment was the June shipment and the evidence showed that only one or two grams were involved after the time Burnett joined the conspiracy, we would have serious doubts whether the Commonwealth had sustained its burden of proof.¹⁰

The June seizure, however, was not the only, or even the most important, evidence of the object of the conspiracy. There was compelling evidence occurring after Burnett joined the conspiracy from which a jury could find that the object of the conspiracy was to sell cocaine in large quantities, quantities in excess of twenty-eight grams.

The evidence, in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), was that Gatta, who saw Burnett four or five times a week for a month or so, asked for and received in a given twenty-four hour period two, three, or four deliveries of fifteen "20s"¹¹ from Burnett. A notebook belonging to Shaw showing drug transactions for a two-day period in November, 1996, indicated that she sold at least three sets of fifteen (i.e., forty-five) "20s" on each of those two days, the same period during which Gatta was receiving drugs for sale from Burnett.¹² A jury could properly infer that Burnett and his coconspirators possessed at one time the supplies sold on a single day. On the days covered by the notebook such amount could reasonably be inferred to be more than thirty-nine grams.¹³ Such aggregation of drugs possessed by the conspirators at...