Commonwealth v. Rabb

• Citation: 725 NE 2d 1036,431 Mass. 123
• Parties: COMMONWEALTH v. GREGORY A. RABB.
• Decision Date: 27 March 2000
• Court: United States State Supreme Judicial Court of Massachusetts

431 Mass. 123

725 NE 2d 1036

COMMONWEALTH v. GREGORY A. RABB.

Supreme Judicial Court of Massachusetts, Plymouth.

January 7, 2000.

March 27, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.

GREANEY, J.

A jury in the Superior Court convicted the defendant of trafficking in cocaine in an amount of one hundred grams or more, but less than 200 grams, G. L. c. 94C, § 32E (b) (3). The defendant moved pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), for a required finding and to set aside the verdict, asserting that his guilty plea to a charge of possession of cocaine with intent to distribute in a District Court, prior to the trial of the trafficking indictment in the Superior Court, barred prosecution of the indictment under principles of double jeopardy. The trial judge, in a written memorandum of decision, agreed with the defendant and ordered the trafficking conviction vacated, the jury verdict set aside, and the entry of judgment for the defendant. The Commonwealth appealed, and we granted the defendant's application for direct appellate review. We conclude that the defendant's conviction should not have been vacated. Accordingly, we vacate the judgment of acquittal and reinstate the judgment of conviction.

The pertinent background is as follows. As a result of an approximately two-year investigation that included surveillance of a house at 31 Seaview Street in Plymouth, and the Bay View Motel in Kingston, Detective William E. Curtis of the Plymouth police department obtained two warrants to search these locations. During the course of the investigation, Detective Curtis on many occasions had seen the defendant's car at the Bay View Motel, and the defendant at 31 Seaview Street. The 31 Seaview Street address was notorious for cocaine sales; police previously had executed warrants and made arrests there.

The search warrants were executed on February 1, 1994, by law enforcement officers of the Plymouth police, the Kingston police, and the State police. The officers executed the first warrant at 31 Seaview Street. There, the police arrested the occupants, including the defendant and Maurice Wynn, his cousin. The defendant did not have any drugs or money on his person. Near him on the floor, however, the police seized "a couple of rocks" of crack cocaine and numerous empty wrappers. The police seized fourteen rocks of crack cocaine and $878 in cash from Wynn. The crack cocaine was separately packaged in "corner bags."¹ The police also seized cocaine and cash from other occupants. Elsewhere in the house, the police seized empty crack wrappers, crack pipes, two pagers, a portable radio, and a "charging unit." After being arrested, the defendant, Wynn, and other occupants were brought to the Plymouth police station.

The police executed the second search warrant at the Bay View Motel. Police Chief Gordon Fogg, who was a detective at the time of the defendant's arrest, and Detective Richard Arruda of the Kingston police showed the search warrant to the motel's owner and received the key to unit no. 6. For more than three months, the defendant had paid $150 in cash each week for the unit, using ten and twenty dollar bills. Inside unit no. 6, the police seized a plastic bag containing 331 pieces of individually wrapped crack cocaine from inside a wall heater. This crack cocaine weighed 82.05 grams and was eighty-nine per cent pure. The police also seized a plastic bag containing 159 pieces of individually wrapped crack cocaine, in corner bags, from the bottom of a cereal box located in the kitchenette. This crack cocaine weighed 31.02 grams and was ninety per cent pure. The police also found a portable radio, which was tuned to the same frequency as the portable radio seized at 31 Seaview Street.

After returning to the Plymouth police station, the police were told that the defendant wanted to speak with them. Detective Curtis brought the defendant to the detectives' office. Chief Fogg and Detective Arruda were also present. Fogg read the defendant his Miranda rights, and the defendant stated he understood them. Fogg showed the defendant the crack cocaine seized from the motel, and the defendant said, "You got me." The defendant told the officers that he did not want to go to jail for ten years because he had three children, and offered to supply the police with drugs, guns, and "bad cops" in exchange for a deal.

The defendant also told the officers that his cousin, Wynn, wanted to talk with them. Wynn was brought to the office and Detective Curtis read him his rights. The defendant asked Chief Fogg to show Wynn the crack cocaine seized from the motel, and told Wynn that the officers had the crack and had "him good." The defendant stated that he owned the crack cocaine seized from the wall heater in the motel, and that Wynn owned the crack cocaine seized from the cereal box also in the motel. He also stated that he and Wynn had separately purchased their respective cocaine. The defendant said he purchased his crack cocaine from a location in the Dorchester section of Boston, prepackaged and ready for sale. He stated that he stayed at the motel a few days every week, long enough to sell the cocaine in the area. The defendant stated that he did not sell the crack out of the motel room, but rather, sold it in Plymouth. The defendant also indicated that his crack cocaine (seized from the wall heater) cost him $3,200, and he expected to make $7,000 on its resale. Wynn stated that the crack seized from the cereal box cost him $1,400, and he expected to make $3,000 on its resale.

The defendant was charged by a complaint in the Plymouth Division of the District Court Department with possession of cocaine, G. L. c. 94C, § 34, and possession with intent to distribute cocaine, G. L. c. 94C, § 32A (a). These charges were based on the cocaine seized in the search at 31 Seaview Street. Subsequently, a Plymouth County grand jury returned the indictment against the defendant with which we are concerned, charging him with trafficking in one hundred but less than 200 grams of cocaine.² The indictment was based on the cocaine seized in the search of the defendant's unit at the Bay View Motel. The defendant entered guilty pleas on May 23, 1996, to the District Court charges of possession and possession with intent to distribute, and was sentenced to concurrent terms of imprisonment in a house of correction. In September, 1996, he was tried before a jury in the Superior Court on the trafficking charge. The jury found him guilty, and he was sentenced, as required by G. L. c. 94C, § 32E (b) (3), to the mandatory minimum term of ten years.

Following this conviction, the defendant refiled his motion for a required finding of not guilty, asserting, as he had before,³ that his prosecution for trafficking in cocaine was barred by principles of double jeopardy. The judge allowed the motion, reasoning in his memorandum that, "where it is evident that the [defendant's] cocaine found in Plymouth and the 113 grams found in Kingston constitute a single stash of drugs with respect to which [the defendant] bore an identical intent, to sell them via an established warehouse/retail scheme, the defendant has engaged in one continuous offense of possession with intent to distribute in violation of [G. L.] c. 94C, § 32E, and the Commonwealth cannot divide that single continuous possession of the stash into separate offenses without violating the double jeopardy clause." Thus, the judge concluded that the defendant's "District Court conviction [of] possession with intent to distribute barred his later conviction [in the Superior Court] of trafficking [in cocaine]."⁴

1. We agree with the Commonwealth that the defendant was not exposed to double jeopardy. That doctrine prohibits prosecuting or punishing a defendant twice for the same offense. See Commonwealth v. Cassidy, 410 Mass. 174, 176 (1991); Commonwealth v. Levia, 385 Mass. 345, 347 (1982). See also Kuklis v. Commonwealth, 361 Mass. 302, 305 (1972) ("Where there is identity between two charges, the imposition of two sentences results in two punishments for the same offence"). In cases of successive prosecutions of a defendant, an identity of charges occurs if "the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other." Morey v. Commonwealth, 108 Mass. 433, 434 (1871). This test, which we have adopted as a rule of Massachusetts common law, was applied by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine, under the double jeopardy clause of the Fifth Amendment to the United States Constitution, whether a defendant has been improperly punished multiple times for the same offense.

The test, however, does not apply to this case because it governs a situation where a defendant has multiple convictions for violating different statutory provisions. See id. See also Rashad v. Burt, 108 F.3d 677, 679 (6th Cir. 1997), cert. denied, 522 U.S. 1075 (1998) ("the Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction"). As was pointed out by the Supreme Court of Washington in State v. Adel, 136 Wash. 2d 629, 633-634 (1998): "When a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.... [T]he same evidence test asks whether the convicted offenses are the same in law and the same in fact. Two convictions for violating the same statute will always be the same in law, but they will never be the same in fact. In charging two violations of the same statute, the prosecutor will always attempt to...