Peter Bongarzone, Joseph Carfagna, Gordon P. Trapp, and Paul F. Smith were convicted by a jury of violating the marihuana trafficking statute, G. L. c. 94C, § 32E (a)(2), as appearing in St. 1980, c. 436, § 4. They received sentences of from five to seven years at the Massachusetts Correctional Institution at Walpole (M.C.I., Walpole), with the exception of the defendant Trapp, who received a sentence of from six to eight years. The defendants Bongarzone and Carfagna were also convicted of violating G. L. c. 268A, § 2 (a) (bribery), and received concurrent sentences of from two to three years. The defendants appealed, and we transferred the appeal here on our own motion.
The defendants raise the following issues: (1) whether the indictments should have been dismissed because of the false testimony of a police officer before the grand jury; (2) whether the trial judge should have granted motions of Carfagna, Trapp, and Smith to sever; (3) whether either the substantive or penalty provisions of G. L. c. 94C, § 32E (a) (2), are invalid; (4) whether the trial judge should have granted Bongarzone’s and Trapp’s motions for required findings of not guilty; (5) whether the trial judge failed to instruct the jury correctly; and (6) whether Trapp’s motion to suppress should have been granted. We shall review the facts and consider those issues necessary for the disposition of these appeals.
Bongarzone met Dalrymple at the front door. The two men then walked through the living room to the kitchen, past three white males unknown to the officer. Bongarzone inquired whether Officer Dalrymple “would like to earn $10,000.” He explained that “an acquaintance of his had ripped off over $100,000 worth of marijuana from two dealers in Hull.” With those words, Bongarzone made a gesture toward the living room, and Carfagna joined the pair in the kitchen. Bongarzone then elaborated on the circumstances. He told Officer Dalrymple that Carfagna had stolen the marihuana, that Carfagna had been threatened with “bodily harm” if he did not return it, and that “this marijuana had originally come up from Florida and that the two dealers in Hull had ripped it off from two dealers in Rhode Island.”
Bongarzone also laid out a scheme for regaining possession of the marihuana. Officer Dalrymple was to obtain a marked police cruiser and follow Carfagna, who would be driving a Ford Bronco vehicle containing the marihuana, to a nearby tavern called the Commercial House. The two dealers from Hull would take possession of the Bronco and drive off. Officer Dalrymple would follow them, stop them for a supposed traffic infraction, and “chew their ass out, let them go, confiscate the marijuana and return it to Peter’s [Bongarzone’s] house.” With the plan laid out, the three went outside to the backyard to examine the marihuana
At the Weymouth police station, Officer Dalrymple conferred with Lieutenant Rodney Rumble and Detectives Robert Burke and Warren Paul Burke, and informed them of the situation. A scheme to capture the marihuana and the two Hull dealers was devised. Dalrymple obtained a cruiser, returned to the Bongarzone residence, and met briefly with Bongarzone and Carfagna. Officer Dalrymple then got back into the cruiser and waited for the Ford Bronco to be driven to the Commercial House.
Carfagna drove the Bronco out of Bongarzone’s driveway, and Dalrymple followed it to the Commercial House. Carfagna parked the Bronco, alighted, and entered the tavern. Within fifteen seconds, Carfagna came back out in the company of two males and a female. The two males looked in the back window of the Bronco and then entered the vehicle. The Bronco soon passed directly in front of the cruiser, and Officer Dalrymple observed that it contained the green trash bags.
Officer Dalrymple followed the Bronco for about one mile. When it stopped for a red traffic light, he pulled the cruiser directly in front of it, alighted, and drew his revolver. Other police officers arrived on the scene and approached the Bronco with drawn revolvers. Officer Dalrymple spoke with the defendant Trapp, who was driving. Dalrymple also spoke with the passenger, the defendant
The police took Smith and Trapp, who both resided in Hull, in custody, advised them of their Miranda rights, and questioned them concerning the incident. Smith told the police that a person named “Joker” 3 had driven him to the Commercial House in the Bronco. That person took the Bronco and left. After the Bronco was returned, Smith and Trapp started to drive back to Smith’s home in Hull. Smith denied any knowledge of the presence of marihuana in the Bronco when the police stopped them. Trapp told the police that he had received a call that night requesting that he come to the Commercial House and drive an intoxicated Smith home. He stated that he secured a ride to the Commercial House and, at the time of his arrest, was driving Smith home. He also denied knowing where the marihuana came from. At trial, the Commonwealth introduced evidence demonstrating that Trapp did not possess a driver’s license.
Neither Bongarzone nor Carfagna was arrested that night, and complaints against them were not issued until January 30, 1981. On January 24, Bongarzone telephoned Officer Dalrymple and arranged a meeting. Dalrymple testified, “Peter said to me he was sorry he got me involved. He was sorry he got himself involved. The only thing he saw was money flashing before his eyes.” On February 1,1981, Dalrymple spoke again with Bongarzone, who had by then been indicted. Officer Dalrymple told Bongarzone that he needed a good lawyer and recommended a lawyer who had represented Dalrymple successfully in the past. There was also testimony indicating that Officer Dalrymple had
During the trial, the attorneys for the defendants sought to impeach the credibility of Officer Dalrymple. They conducted exhaustive cross-examinations designed to bring out that Dalrymple had admitted at the suppression hearing that he had not testified truthfully concerning certain facts during his prior testimony at a probable cause hearing. These facts related to whether Officer Dalrymple had observed the marihuana while the Bronco was parked in the backyard of Bongarzone’s house on January 21,1981. 5 Also, at all times prior to the trial, Officer Dalrymple had testified that only Carfagna accompanied him out of the house to observe the marihuana through puncture holes in the trash bags. At trial, Dalrymple testified that both Bongarzone and Carfagna had accompanied him and that now he had some doubt as to whether he had seen the marihuana in the Bronco in Bongarzone’s backyard, and wished to give Bongarzone the benefit of the doubt. He testified that he originally did not place Bongarzone in the backyard simply as a means of aiding Bongarzone’s defense. There was testimony that Officer Dalrymple felt that Bongarzone and Carfagna should not have been prosecuted.
Two of the defendants, Carfagna and Smith, testified at trial. Their testimony was essentially consistent and was in accord with the statements Smith and Trapp made to the police after their arrest. This testimony indicated that the “true owner” of the marihuana was one Bernard Small, and that Officer Dalrymple was the one who had stolen it. Based on information provided by Smith, Small had accused Carfagna of stealing it. Later, according to Carfagna’s testimony, Small learned the identity of the true thief,
Smith claimed he entered the picture as an unknowing participant. He testified that he had loaned his Bronco to Small because Small wanted to confer with Carfagna concerning the stolen marihuana. Small left him at a local tavern and Smith stayed there until Carfagna later gave him a ride to the Commercial House. Carfagna told Smith that he would retrieve the Bronco; he left and proceeded to Bongarzone’s house.
Carfagna testified that Small arrived at Bongarzone’s house with Smith’s Bronco and that Officer Dalrymple had brought the marihuana with him. A heated discussion ensued, and Carfagna testified that he left, since he had “done what I was supposed to do.” As he was driving off in his own truck, he testified that he saw the remaining parties walking out of the house.
From this testimony and Trapp’s prior statements, the jury were to infer that Small and Officer Dalrymple reached an agreement, and transferred the marihuana to the Bronco, and that Small drove the Bronco to the Commercial House. Trapp arrived there to drive an intoxicated Smith home. He obtained the keys to the Bronco and drove off with Smith, both unaware of the marihuana in the rear of the vehicle.
1.
Challenges to the validity of G. L. c. 94C,
§ 32E (a). We first consider various challenges to G. L. c. 94C, § 32E
(a)
(2), as it existed at the time of the alleged offense.
6
Sec
In
Gagnon
(I),
supra,
we considered the constitutionality of G. L. c. 94C, § 32
(a),
as appearing in St. 1980, c. 436,
General Laws c. 94C, § 32E (a), suffers from similar defects. Clause 2 of the section, which requires a mandatory term of imprisonment, is plainly inconsistent with the optional language of the main paragraph, which permits punishment by imprisonment or fine. A second ambiguity is the meaning of the phrase “mandatory term.” In Commonwealth v. Marrone, supra at 704, we said, concerning identical language in a companion statute, that “it would be sheer conjecture on our part to conclude that the Legislature meant the [mandatory] term to be either the maximum term or the minimum term.” Hence, putting aside the question of a fine, several alternative schemes may have been intended. At the very least, the Legislature could have intended that a defendant convicted of possessing 300 pounds of marihuana with the intent to distribute receive (1) a sentence of from three to ten years with three years constituting a mandatory minimum sentence; (2) a mandatory maximum sentence of three years; and (3) a sentence of from one to ten years in the discretion of the judge. We are simply unable to say what the Legislature intended. 8
This holding, however, does not dispose of the indictments entirely. The indictments under G. L. c. 94C, § 32E
(a)
(2), charged that the defendants “did knowingly or intentionally possess with intent to distribute marijuana or a mixture thereof in excess of 100 pounds.” The jury’s ver
We therefore proceed to consider whether these judgments, as well as the judgments against Bongarzone and Carfagna under G. L. c. 268A, are otherwise free from error.
2. Grand jury testimony of Dalrymple. The defendants argue that the trial judge should have dismissed the indictments because of the admittedly false testimony of Officer Dalrymple before the grand jury. The defendant Bongarzone raised this argument by filing a motion to dismiss, which was joined in by the other defendants, on the day the trial commenced. The judge denied the motions because they were untimely, unsupported by affidavits, and without merit.
There was no error. Rule 13 (a) (2) of the Massachusetts Rules of Criminal Procedure,
Rule 13 (d) (2) (A) of the Massachusetts Rules of Criminal Procedure,
id.
at 873, also requires that those “pretrial motions the subject matter of which could not be agreed upon at the pretrial conference” “shall be filed within seven days after the date set for the filing of the pretrial conference report pursuant to rule 11 (a) (2) or at such other time as the
Because of the seriousness of this claim and because one testimonial discrepancy (whether Bongarzone accompanied Officer Dalrymple out to the Bronco to examine the marihuana) did not become evident until trial, we comment on the merits of the defendants’ claim. “There can be no doubt that the knowing use by the Commonwealth or one of its agents of false testimony to procure an indictment is a ground for dismissing the indictment.”
Commonwealth
v.
Salman,
3.
Severance under Bruton.
The defendants Carfagna, Smith, and Trapp argue that the trial judge’s refusal to grant their motions to sever violated the confrontation clause of the Sixth Amendment to the United States Constitution under the doctrine of
Bruton
v.
United States,
The judge denied the motions after the Commonwealth represented that it intended to proceed on a theory of joint enterprise. During the Commonwealth’s case-in-chief, the judge delivered limiting instructions to the effect that extrajudicial statements of a defendant were admissible solely against that defendant. At the close of the Commonwealth’s case, he found that the Commonwealth had introduced sufficient evidence to establish the existence of a joint enterprise involving all four defendants. The judge later instructed the jury that they had to find that a joint enterprise existed before they could consider the extrajudicial statements of each defendant against the other defendants. He also delivered an instruction that any joint enterprise that might have existed came to a conclusion when Trapp and Smith were stopped and arrested.
a.
Carfagna.
There was ample evidence, apart from the statements made by Bongarzone, to support a finding that Bongarzone and Carfagna had entered into a joint criminal enterprise. There was evidence that after Bongarzone made a gesture to him, Carfagna joined Bongarzone and Officer Dalrymple in Bongarzone’s kitchen. Several minutes later, Carfagna accompanied them outside to examine the marihuana. Carfagna told Officer Dalrymple that the trash bags contained marihuana. Carfagna also agreed to disconnect one of the Bronco’s taillights so that Officer Dalrymple would have an excuse to stop the vehicle later.
We must also consider whether the statements made by Bongarzone to Officer Dalrymple after the termination of the venture requires reversal of Carfagna’s convictions. Since the community of interests between the joint venturers had been terminated, such statements lack sufficient indicia of reliability to be admissible. Commonwealth v. White, supra.
The statements here were to the effect that Bongarzone was sorry that he had gotten Officer Dalrymple involved and that Bongarzone would need a good lawyer. The Commonwealth argues that these statements, as well as those made during the venture, are admissible under
Parker
v.
Randolph,
b. Smith and Trapp. The Commonwealth essentially concedes that Bongarzone’s statements tended to inculpate Smith and Trapp. While Officer Dalrymple’s version of his conversation with Bongarzone referred only to “two dealers from Hull,” it is clear that the two dealers were Smith and Trapp. See Commonwealth v. LeBlanc, supra at 8. The Commonwealth’s cross-examination of Smith ensured that the jury did not miss this point.
The Commonwealth’s argument is that the statements were admissible under the joint venturer’s rule describéd above. See Commonwealth v. Borans, supra. It argues that the trial judge and jury could have inferred the existence of a joint venture from the presence of Smith’s Bronco in Bongarzone’s driveway and from the circumstances surrounding the transfer of the marihuana at the Commercial House.
The difficulty with the Commonwealth’s argument is that the statements must further some common objective of
As to the Commonwealth’s latter argument, which was not raised below, we reject the suggestion that the opportunity to cross-examine a testifying codefendant who, by his silence, may have “adopted” the statements of a nontestifying declarant is the equivalent of cross-examining the declarant. The difficulties of cross-examination in this situation are simply too great. This point is highlighted by the rule that a statement which has been adopted by silence may be used only against the silent individual. See Proposed Mass. R. Evid. 801 (d) (2) (B); Fed. R. Evid. 801(d) (2) (B); P.J. Liacos, Massachusetts Evidence 276 (5th ed. 1981). 13
The Commonwealth presents a more plausible claim in arguing that the weight of the evidence against Smith and Trapp rendered the error harmless. They were arrested with large trash bags containing approximately 300 pounds of marihuana. Possession of such a quantity of a controlled substance creates an inference that the defendants intended to distribute it.
Commonwealth
v.
Scala,
Two factors dictate this result. First, Smith and Trapp were portrayed in Bongarzone’s statements as professional drug dealers who had stolen the marihuana from other dealers and who had threatened Carfagna with physical harm. Thus, the statements contained an inflammatory edge which may have unfairly prejudiced the defendants.
Second, Bongarzone’s statements supplied damaging evidence of the mental state necessary to support a finding of possession. To warrant a finding of possession of contraband, “[i]t is not enough to place the defendant and the [contraband] in the same car.”
Commonwealth
v.
Boone,
4. Jury instructions. The defendant Bongarzone claims two errors in the instructions to the jury. First, he argues that the judge, in instructing the jury on joint venture, failed to indicate that the Commonwealth had to prove that each defendant actively participated in the joint venture. He points to a portion of the charge where the judge stated that “[i]t is sufficient for the Commonwealth to show that a defendant was aware that he was a party to an unlawful agreement.” There was no error.
We do not believe that the defendant raised, in specific terms, this objection to the charge below, and he therefore has waived his right to argue the point before us.
Commonwealth
v.
Coleman,
Bongarzone also argues that the judge erred in instructing the jury that they could find the defendant guilty, either under a theory of joint venture or under a theory of individual culpability.
15
The argument is that by allowing
We have concluded, however, that the Commonwealth failed to produce sufficient evidence to warrant a finding of the existence of a joint criminal venture among all four defendants. Thus, the jury properly could not have considered the acts and statements of Smith and Trapp as Bongarzone’s own acts and statements. To that extent, the instructions were erroneous. But in light of Bongarzone’s own damning pretrial statements, which were in evidence, as well as the other evidence which was properly before the jury, the error was harmless beyond a reasonable doubt.
The defendant Trapp raises a claim of error which we consider briefly because it may arise at a new trial.
16
The claim of error concerns whether the judge erred in his instructions concerning the elements of possession. Trapp argues that the judge failed to indicate that possession must be knowing. See
Commonwealth
v.
Deagle,
5.
Sufficiency of the evidence against Bongarzone and Trapp.
The defendants Bongarzone and Trapp argue that the judge erred in not entering required findings of not guilty. In reviewing the propriety of the denial of a motion for required findings of not guilty, we examine the record at the close of the Commonwealth’s case-in-chief to determine 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 crimes beyond a reasonable doubt.
Commonwealth
v.
Burrell,
a.
Bongarzone.
At the close of the Commonwealth’s case-in-chief and at the close of all the evidence, the defendant Bongarzone moved for the entry of required findings of not guilty with respect to both indictments. See Mass. R. Crim. P. 25,
Trapp also filed motions for the entry of a required finding of not guilty at the close of the Commonwealth’s case and at the close of all the evidence. We consider the issue not only because it may arise at a new trial, but also because of the defendant’s right not to be placed in jeopardy twice. See
Burks
v.
United States,
The evidence was sufficient to support a finding that Trapp was aware that the Bronco was carrying marihuana. There was evidence that Trapp had examined the contents of the Bronco outside the Commercial House. Further, Officer Dalrymple testified that the odor of the marihuana was emanating from the trash bags. There was also sufficient evidence to support findings that Trapp had control over the marihuana. Carfagna’s statements, which were properly admitted under
Bruton,
and the circumstances of the transfer, indicate that Trapp did intend to possess the marihuana. The intent to distribute may be inferred from
6. Motion to suppress. The defendant Trapp claims that a motion judge of the Superior Court erred in denying his motion to suppress the marihuana which was seized. The defendants Carfagna and Smith joined in the motion below, but have abandoned this claim here. After a hearing, the judge denied the motion and entered written findings of fact and rulings of law.
The motion judge’s findings of fact were consistent with Officer Dalrymple’s testimony at trial. We, therefore, elaborate only briefly concerning the actual search and seizure. The judge found that Dalrymple and other police stopped the Bronco and ordered Smith and Trapp out of it at gunpoint. After several brief inquiries, a police officer other than Dalrymple opened the tailgate and saw the fifteen trash bags. Several of the bags were torn, thereby disclosing their contents. The Bronco was impounded and taken to the Weymouth police station. There, the bags were removed and weighed.
Trapp concedes that, under the so called automobile exception to the warrant requirement (see
Chambers
v.
Maroney,
The search could also be sustained as being a search incident to arrest, and thus not subject to the warrant requirement. In
New York
v.
Belton,
7. Disposition. The judgments are affirmed on the indictments against the defendants Bongarzone and Carfagna, which charge violation of G. L. c. 268A, § 2.
The judgments are reversed against the defendants Bongarzone and Carfagna in so far as the indictments charge violations of G. L. c. 94C, § 32E (a), and the verdicts are set aside in so far as they find the defendants Bongarzone and Carfagna guilty of such violations. The cases are remanded to the Superior Court, where the judge is to enter an order dismissing the indictments except as to the lesser included offense of possession of marihuana with intent to distribute. Findings of guilty of that offense may be be entered, and the defendants Bongarzone and Carfagna may be sentenced pursuant to G. L. c. 94C, § 32C (a), as appearing in St. 1980, c. 436, § 4, which punishes possession of marihuana with intent to distribute.
The judgments are reversed on the indictments against the defendants Trapp and Smith. Their cases are remanded for further proceedings consistent with this opinion.
So ordered.
Notes
The Bronco later would be determined to be registered to the defendant Smith.
There was testimony indicating that “Joker” was Carfagna’s nickname.
There was also testimony that Bongarzone and Officer Dalrymple had discussed at various times certain parts of Dalrymple’s testimony after Bongarzone’s arrest.
There was also a discrepancy in Officer Dalrymple’s testimony at various times concerning whether he saw a shotgun at Bongarzone’s house. At trial, Dalrymple testified that he had not seen one there.
General Laws c. 94C, § 32E
(a),
as appearing in St. 1980, c. 436, § 4, provides, in part: “Any person who knowingly or intentionally manufactures, distributes, dispenses, or cultivates, or possesses with intent to manufacture, distribute, dispense, or cultivate, or brings into this state in excess of fifty pounds of marihuana or any mixture containing marihuana, shall be guilty of trafficking in marihuana and shall be punished by imprisonment for not less than one and not more than ten years or by a
While the defendants raise various challenges to the statute’s validity, they did not raise at trial the precise issues presented by
Gagnon I,
We perceive nothing in the legislative history or any related provisions of the General Laws that resolves the inherent ambiguity of the statute’s language. See Commonwealth v. Marrone, supra at 704. The Commonwealth argues that the applicability of G. L. c. 94C, § 32H, distinguishes this case from Gagnon (I) because it eliminates any conflict between the penalty provisions of G. L. c. 94C, § 32E (c)(2), and G. L. c. 279, §§ 1 and 1 A. The short answer to this claim is that the result in Gagnon (I) did not turn on any conflict between those two statutes.
The judge conducted a lengthy voir dire concerning Officer Dalrymple’s testimony. During the voir dire, the motion to dismiss was renewed.
A charge of impropriety is also levelled against the prosecutor. In
Commonwealth
v.
Salman, supra
at 167, we said that a prosecutor should request the dismissal of an indictment if it becomes known that false testimony was used to obtain it. In the present case, the prosecutor was not under such a duty. We believe, however, that he did have a duty to make defense counsel and the judge aware of false testimony which an agent of the Commonwealth might have given before the grand jury when that circumstance became known. Cf. S.J.C. Rule 3:08, PF 12, as appearing in
Confessions or admissions of conspirators or joint venturers, made after the termination of the conspiracy or joint venture, are not admissible, as matter of State law, as vicarious statements of the members of the conspiracy or joint venture. Commonwealth v. White, supra at 708-712.
We do not decide whether Bongarzone’s statements were admissible against Smith and Trapp as statements against penal interest. See
Commonwealth
v.
Carr,
The problem has received much attention in the Federal courts. In
United States
v.
Lieberman,
Other Federal cases have stated that the test whether a declaration against penal interest is admissible — whether the statement inculpates or exculpates a defendant — is the same as the
Carr
test. These cases, however, recognize that the statement must possess some indicia of reliability to satisfy the confrontation clause. See
United States
v.
Riley,
We do not pass on the point here because our consideration would be handicapped by the failure of the Commonwealth to raise the issue below or to argue it before us. We therefore lack any findings by the trial judge concerning the reliability of the statements or any well developed arguments concerning the state of the law in this area.
We do not decide whether Bongarzone’s statements were admissible against Carfagna under the doctrine of adoptive admissions. While, arguably, Carfagna may have been expected to deny at least some of Bongarzone’s statements, we have approached the doctrine with caution and have not been inclined to expand it. See
Commonwealth
v.
Rembiszewski,
An argument also is advanced by Smith and Trapp that the teachings of
Commonwealth
v.
Moran,
This objection was raised by Smith’s counsel. Later, the judge, to avoid repetition, afforded the other defense counsel an opportunity to
Trapp also claims error in that the judge did not instruct the jury concerning the significance of the termination of the joint venture. While we doubt that the judge erred, we do not pass on it because the argument is directed at the statements and acts of Bongarzone and Carfagna after January 21, 1981. These statements and acts will not be admissible at a new trial.
Trapp also seeks review of claims raised in a memorandum of law which was presented to a single justice of this court during a hearing on an application for an interlocutory appeal. We decline to do so. The memorandum is reprinted in the defendant’s appendix. The memorandum is not properly before us. This method of briefing does not conform fully to the requirements of the appellate rules. Mass. R. A. P. 16 (a) (4), as amended,
The present case is distinguishable from
Commonwealth
v.
Toole,