State v. Kaba, 1999-113-C.A.

CourtUnited States State Supreme Court of Rhode Island
Citation798 A.2d 383
Docket NumberNo. 1999-113-C.A.,1999-113-C.A.
PartiesSTATE v. Sory KABA et al.
Decision Date03 June 2002

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Jane McSoley, Aaron L. Weisman, Providence, for Plaintiff.

Richard A. Ciccone, Paula Lynch Hardiman, Paula Rosin, Providence, for Defendant.

OPINION

WILLIAMS, Chief Justice.

The defendants, Sory Kaba (Kaba) and Kankoumady Traore (Traore) (collectively referred to as defendants), appeal their three-count convictions, which include charges of possession and conspiracy to possess heroin with the intent to deliver, after a Superior Court jury trial. The defendants argue that the trial justice committed a variety of errors during the trial.1 We disagree and affirm the judgment of the Superior Court. The facts pertinent to this appeal are as follows.

I Facts and Travel

This case concerns the delivery of a package from Thailand, addressed to 124 Imest Avenue in Pawtucket. On March 17, 1997, the package was intercepted at JFK International Airport in New York, and found to contain a large amount of heroin.2 The parcel was then forwarded to Det. Peter Pasciucco (Det. Pasciucco), a Massachusetts Bay Transportation Authority (MBTA) police detective assigned to a "United States smuggling group" in Boston, Massachusetts.3 Once Det. Pasciucco received the package, the heroin found in the bowl, which had been placed in a plastic bag, was retested.

A small amount of heroin was taken from the plastic bag and placed back inside the parcel, as a representative sample for a controlled delivery. The original contents of the package were replaced, except for the five bowls. A telephone book was added to compensate for the weight differential. The package was resealed, and on March 19, 1997, United States Customs Service Agent Robert O'Connell (Agent O'Connell) brought it to the Pawtucket Post Office (post office).

Detective Martin Briden (Det. Briden), of the Pawtucket Police Department's (police) special squad, testified that the address on the package was 124 Imest Avenue in Pawtucket. The addressee was Muaamed Traore. After checking the city directory, the police determined that Imest Avenue did not exist. Because of the similarity between the word "West" and "Imest," the police initially conducted an investigation of 124 West Avenue and subsequently learned that a vehicle parked in front of the premises was registered to Traore. Therefore, a decision was made to attempt the controlled delivery at 124 West Avenue, where Traore resided with Kaba. As part of the controlled delivery, a postal slip was left at defendants' apartment on March 20, 1997, notifying them that a package had arrived for them at the post office. The postal slip showed that the addressee's name was Muaamed Traore4 and "Thailand" was written in the space for the sender's name. On this same day, Det. Briden conducted surveillance at 124 West Avenue. At approximately 4 p.m., a vehicle registered to Traore drove up and parked. The occupant exited the car and went inside 124 West Avenue. Approximately five minutes later, an unregistered vehicle parked on the street and the occupants of that vehicle also went inside the apartment. Then at 4:10 p.m., defendants left their apartment, entered the unregistered vehicle, and drove away. Detective Briden followed the car. He testified that as Kaba drove, defendants made two stops before reaching their final destination, the post office. The defendants parked the unregistered vehicle in the social security building parking lot behind the post office. While defendants went into the post office, Det. Briden stayed in the parking lot.

Paul Izzo (Izzo), a post-office supervisor, testified that defendants came into the post office and gave a clerk the notice they received for the package. The clerk, in turn, notified Izzo that someone had inquired about the package. Izzo then confronted defendants and asked "[a]re you here to pick up the parcel from Thailand?" to which Kaba replied "[y]eah, Thailand."5 Izzo then asked both men for identification. According to Izzo, the two looked at each other before handing over their identification. Traore stated that the parcel was for his brother in New York. Traore then signed a yellow slip for the package, Kaba collected the parcel, and both left the post office.

Detective Pasciucco testified that while conducting surveillance from across the street, he saw defendants emerge from the post office. He stated that Kaba, who was carrying the package, had it "over his head[,] almost like a weight lifter or barbell thing." Furthermore, Det. Pasciucco testified that defendants were "jovial" and appeared to be "joking" as they walked around the corner to the car.

When defendants reached the vehicle, Det. Briden testified, he saw Kaba place the package in the vehicle's rear compartment. After defendants were inside the vehicle, Det. Briden, along with several other officers, approached the vehicle, identified themselves as police officers, and arrested both defendants. During the arrest, Kaba asked Det. Briden if he was in trouble. Detective Briden answered that "he could be in big trouble." Kaba volunteered that "he had nothing to do with what was in the package." Detective Pasciucco further testified that after he followed defendants to the rear of the post office, the package was visible in the hatchback area of the car. Both the package and defendants were taken to the police station.

Approximately one week later, Agent O'Connell met with Det. Briden and handed over the five bowls that had been removed from the parcel. Detective Briden prepared the evidence and sent it to the state toxicology lab. The heroin removed from the five bowls and the small sample for the controlled delivery were analyzed. The toxicology report revealed that the sample weighed 3.34 grams and that the remaining heroin from the five bowls weighed 758.42 grams.

The defendants subsequently were charged with possession of heroin, conspiracy to possess heroin, and conspiracy to possess heroin with the intent to deliver. A Superior Court jury trial commenced. During trial, Det. Pasciucco testified to the value of the confiscated heroin. At that time, the heroin had a wholesale value of between $60,000 and $115,000. The street value of the heroin was between $1.5 million and $3 million.

At the close of the prosecution's case, each defendant moved for a judgment of acquittal. The trial justice denied both motions. The defendants rested without presenting any evidence and renewed their motions for judgment of acquittal. Again the trial justice denied the motions. During closing arguments, each defendant argued that the state failed to show that drug paraphernalia or other evidence of drug involvement was found at their residence or that they knew the contents of the package. The jury ultimately believed the state's case and returned a guilty verdict on all three counts for each defendant. Both defendants moved for a new trial. The trial justice denied the motions.6

The defendants were each sentenced to three years for possession of heroin. They were each sentenced to thirty years, with eight years to serve and twenty-two years suspended, for conspiracy to possess heroin. Both also were sentenced to thirty years, with eight to serve and twenty-two years suspended, for conspiracy to possess heroin with the intent to deliver. The sentences were to run concurrently. The defendants timely appealed.

II The Motion to Suppress

Kaba argues that the trial justice erred in denying his motion to suppress his statements to Det. Briden. Detective Briden testified that Kaba asked if he was in trouble and later said that he "had nothing to do with what was in the package."7 Specifically, Kaba argues that the statements are inadmissible because they were involuntary and not made incident to a lawful arrest. Further, Kaba argues that the admission of the statements was unconstitutional because he had not been informed of his Miranda8 rights before he made the statements. Both defendants also argue that the statements were extremely prejudicial and inadmissible pursuant to Rule 403 of the Rhode Island Rules of Evidence. We disagree.

This Court will not consider Kaba's argument that the statements are inadmissible because they were not made incident to a lawful arrest and because they were involuntary. This argument has been waived. "[A]llegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level." State v. Perry, 770 A.2d 882, 884 (R.I.2001) (quoting State v. Lyons, 725 A.2d 271, 273 (R.I.1999)). However, "an exception to the raise-or-waive rule [exists] when `basic constitutional rights are concerned.'" State v. Breen, 767 A.2d 50, 57 (R.I.2001) (quoting State v. Mastracchio, 672 A.2d 438, 446 (R.I.1996)). In those cases, the "alleged error must be more than harmless, and the exception must implicate an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel at the time of trial." Id. (citing State v. Gomes, 690 A.2d 310, 319 (R.I.1997)). In the instant case, Kaba does not raise an issue derived from a novel rule of law. Furthermore, his argument concerns issues that reasonably should have been known to counsel at the time of trial. Thus, Kaba's first argument has been waived.

Kaba next argues that the statements were inadmissible because at the time he made them, Det. Briden had not read him his Miranda rights. Kaba's use of Miranda is misplaced because "[t]he Miranda doctrine is not applicable to spontaneous statements but is triggered only by the dual presence of custody and interrogation." State v. Walker, 667 A.2d 1242, 1248 (R.I. 1995). In the instant case, the statements were made absent police interrogation and voluntarily by Kaba after his arrest. The trial justice found...

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