Commonwealth v. Albert

Citations: 51 Mass. App. Ct. 377; 745 N.E.2d 990; 2001 Mass. App. LEXIS 262Docket: No. 99-P-722

Court: Massachusetts Appeals Court; April 20, 2001; Massachusetts; State Appellate Court

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On June 29, 1996, Boston police, acting on an anonymous tip, observed a blue truck and its passenger, Carla Shaw, a known drug user, at a Dunkin' Donuts in Revere. After Shaw exited to a phone booth, a red truck approached, and police witnessed what they believed to be a drug transaction. They noted that the red truck had a prior connection to drugs. Following the blue truck to Boston, officers stopped it and discovered eighty bags of crack cocaine concealed under Shaw's shirt. Subsequently, Shaw, along with co-defendants Johnnie L. Albert and Christopher Burnett, were indicted for conspiracy to traffic cocaine in excess of twenty-eight grams, following information from Kathleen Gatta, arrested on unrelated charges.

In their appeal, Albert argued that Shaw's arrest lacked probable cause and that Boston police lacked jurisdiction in East Boston for a crime committed in Revere. Burnett contended there was insufficient evidence to prove the conspiracy involved twenty-eight grams of cocaine and that the jury should have been instructed on this requirement. The court affirmed the convictions, stating Albert lacked standing to challenge Shaw's arrest as he was charged with conspiracy, not trafficking, and possession was not essential to the conspiracy charge. The court also found that the police had probable cause to arrest Shaw based on reasonable belief of a drug transaction, and there was no constitutional obligation for police to arrest immediately upon establishing probable cause.

Officers tracked a red truck and discovered its prior connection to drug activity, establishing probable cause for arrest. Surveillance of a blue truck traveling to Revere was deemed lawful, as the police maintained jurisdiction for an arrest upon its return to Boston. Key testimony against Burnett came from Kathleen Gatta, who, due to her cocaine addiction and debts to Albert, was coerced into selling drugs. After being arrested for larceny, Gatta informed police about the drug operation, leading to the arrests of Albert, Burnett, and Shaw. Burnett argued that evidence of a conspiracy to traffic over twenty-eight grams of cocaine was insufficient since he joined the conspiracy in September 1996, after a June 1996 drug seizure. He contended that the analysis of drugs seized from Shaw could not substantiate the conspiracy's object. However, this evidence was introduced without objection, and the court determined that even if Burnett joined the conspiracy later, he could still be held accountable for acts of his co-conspirators. While he claimed the Commonwealth needed to prove possession of twenty-eight grams in a single instance, the court noted that compelling evidence indicated that Gatta received multiple deliveries of cocaine from Burnett, supporting the claim that the conspiracy involved selling large quantities of the drug.

Shaw's notebook from November 1996 documented drug transactions indicating she sold at least three sets of fifteen (forty-five '20s') on two consecutive days, coinciding with Gatta receiving drugs from Burnett. The jury could reasonably infer that Burnett and his co-conspirators possessed more than thirty-nine grams of drugs on those days, supporting the aggregation of drugs for conspiracy charges. Gatta, experienced with cocaine, confirmed the drugs were cocaine, and an officer testified that the notebook entries pointed to cocaine involvement. The evidence demonstrated that the co-conspirators' possession significantly exceeded twenty-eight grams, rendering the certificate of drug composition and weight merely cumulative. The Commonwealth was not required to prove that the substances sold were indeed cocaine or that twenty-eight grams were possessed on a single occasion, as the defendants were charged with conspiracy, not trafficking. It sufficed to show that the defendants conspired with the intent to commit trafficking. The trial judge explained the trafficking offense to clarify the conspiracy charge, stating that the jury could consider the certificate as prima facie evidence but was not required to conclude its accuracy. Burnett's argument that the judge's explanation limited the jury's consideration of evidence was rejected, and no objections were raised regarding the jury's ability to aggregate drug quantities. Ultimately, no reasonable fact finder could conclude that the defendants conspired to traffic in less than twenty-eight grams of cocaine.

Burnett's arguments are deemed meritless. He was not entitled to a jury instruction preventing aggregation of transactions or to a separate trial from his co-conspirators. The nature of conspiracy, being a continuous act, does not require a unanimity instruction. The court affirmed the judgments. Albert, a co-defendant, was not granted standing to challenge the search related to conspiracy charges, as ownership of the blue truck would not confer such standing. The privacy interest at stake was that of Shaw, not Albert. The anonymous tip did not satisfy the Aguilar-Spinelli standard and was not the basis for Shaw's stop or arrest; regardless, the police had the right to stop the vehicle and search Shaw due to probable cause from a suspicious bulge. Evidence of conspiracy involvement was minimal, relying on Gatta's testimony regarding prior communications with Albert about a partner. Federal guidelines restrict the inclusion of co-conspirators' past conduct in sentencing without unusual circumstances. Evidence regarding the sale of $20 bags of cocaine was provided, with calculations indicating that the total amount could exceed legal thresholds for trafficking. Federal guidelines allow aggregation of transactions for sentencing in drug trafficking and conspiracy cases.