Commonwealth v. Stoico

699 N.E.2d 1249, 45 Mass. App. Ct. 559, 1998 Mass. App. LEXIS 1062
CourtMassachusetts Appeals Court
DecidedOctober 5, 1998
DocketNo. 97-P-1191
StatusPublished
Cited by11 cases

This text of 699 N.E.2d 1249 (Commonwealth v. Stoico) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Stoico, 699 N.E.2d 1249, 45 Mass. App. Ct. 559, 1998 Mass. App. LEXIS 1062 (Mass. Ct. App. 1998).

Opinion

Kass, J.

Steven Stoico was convicted by a jury of six in the District Court of conspiring to distribute marihuana, see G. L. c. 94C, § 40, and sentenced to serve two years in a house of correction. Stoico raises three points on appeal: (1) his motion for a required finding of not guilty was wrongly denied; (2) certain hearsay statements of the police were mistakenly received in evidence; and (3) a pretrial motion to dismiss was erroneously denied. We affirm.

[560]*5601. Facts. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. Mark Marron, a State trooper assigned to narcotics investigation, received a tip that Phillip Moccia was receiving suspicious packages via Federal Express at his apartment in Charlestown. Marron inspected two recently arrived packages from Mesa, Arizona, addressed to Moccia. They were large and heavily taped. With the help of a trained police dog, who bit and scratched at the packages, Marron identified them as likely to contain narcotics. When Moccia came to the Federal Express facility in Medford on October 25, 1995, to pick up those packages (he had not been home when Federal Express earlier had tried to deliver them), he was greeted by Trooper Mark West, dressed in a Federal Express uniform. Moccia signed for the packages and began to load them into his car when Trooper Marrón confronted him and opened one of the packages. Inside, Marron found blocks of what was later determined to be marihuana in five-gallon pails, heavily wrapped in clear plastic. Together, the packages contained a total of 43.8 pounds of marihuana, with a street value of between $40,000 and $170,000.

After advising Moccia of his Miranda rights, Marron invited Moccia to assist the police in their investigation, and to consent to a search of his apartment. Moccia signed a form consenting to the search and, accompanied by Trooper Marron, Trooper West, and Trooper Richard Prior, traveled to Moccia’s apartment in Charlestown, with the marihuana.

The party arrived at Moccia’s third floor apartment around 2:20 p.m. There the troopers found a small amount of marihuana, a scale, packaging materials, large plastic bags, hemp seeds, fifteen hundred dollars, an address book, and plastic pails similar to those in which the recently arrived marihuana from Mesa was packed. During the first twenty minutes of the search, Moccia received two phone calls. Moccia answered both calls and had brief conversations.

Immediately after the second call, at about 2:35 p.m., a white BMW, driven by a man later identified as the defendant Stoico, slowed down or stopped in front of the apartment. Stoico looked up at the apartment for about ten seconds, then drove off. Ten or fifteen minutes later, Stoico stopped in front of the apartment a second time, and then again drove away. A short time later, Moccia received a series of incoming calls. Trooper West went [561]*561down to the front foyer with the packages of marihuana, Moccia stood in front of an open window facing the street, Trooper Marron stood behind Moccia, and Trooper Prior stood in front of the other, partially open, window.

At around 3:15 p.m., while Moccia and the troopers were in conversation, Stoico called from below, “Phil, hey, Phil.” Trooper Matron instructed Moccia to tell Stoico that the packages were in the front foyer. Moccia then leaned out of the window and Trooper Prior testified that the following exchange took place:

Moccia: “Hey, John [not Stoico’s name], what are you doing here?”
Stoico: “What do you mean what am I doing here, do you have the packages or don’t you?” [Trooper Prior added that Stoico sounded extremely irritated and possibly confused when asking this question.]
Moccia: “I thought Rich was coming by, what are you doing here?”
Stoico: “Do you have the packages or don’t you?”
Moccia: “Yeah, I have them.”
Stoico: “Did something go wrong, is something wrong, did something go wrong, what happened?”

During the entire conversation, Moccia was leaning out of the window motioning with his hands to Stoico to go away, and pointing with his thumb over his shoulder to the area where Trooper Marrón was standing. Stoico doggedly declined to take the hint. After Stoico’s final query, Moccia struck up a conversation with a passerby, and Stoico turned abruptly and left.

After Stoico left, Moccia received one more phone call, and then the troopers and Moccia left the apartment. When Stoico drove by a fourth time while Moccia and the troopers were standing outside preparing to leave, Trooper Marron pulled him over and arrested him. At the time of his arrest, Stoico was carrying an electronic pager (“beeper”) and a cellular phone. There was a number listing for “Steve” in an address book of Moccia’s that the police had found in their search of Moccia’s apartment. Marrón dialed the number listed and Stoico’s beeper “went off.”

2. Sufficiency of the evidence. At the close of the Com[562]*562monwealth’s case, Stoico moved unsuccessfully for a required finding of not guilty. Stoico renewed his motion after the jury’s verdict, and the judge again denied the motion. Such a motion is properly denied when — viewing the evidence in the light most favorable to the prosecution — the jury rationally could have found all essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Commonwealth v. Bush, All Mass. 26, 30 (1998). Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 206 n.5 (1998). To sustain a conviction for conspiring to distribute marihuana, the prosecution must have introduced evidence tending to show that Stoico made an agreement with another person to distribute marihuana. Commonwealth v. Pero, 402 Mass. 476, 479 (1988). Commonwealth v. Pratt, 407 Mass. 647, 653 (1990). Because a conspiracy is generally shrouded in secrecy, circumstantial evidence of the illegal agreement is the norm. Commonwealth v. Camerano, 42 Mass. App. Ct. 363, 366 (1997), and cases cited.

There was evidence of the following: (1) Moccia received a large amount of marihuana, worth as much as $170,000;1 (2) Stoico addressed Moccia by his first name, Phil; (3) Stoico drove over to Moccia’s place expecting that packages had arrived and was interested in those packages, namely the packages of marihuana; and (4) Moccia had Stoico’s beeper number under the listing “Steve” in his address book. This reasonably supported inferences that Moccia and Stoico were acquainted, were in telephone contact, and intended to distribute the marihuana. See Commonwealth v. Pratt, supra.

The most damaging evidence came straight out of Stoico’s mouth. The conversation between Stoico and Moccia, reproduced above, supports inferences that Stoico knew that Moccia was receiving multiple packages, that Stoico thought it ridiculous that Moccia would not know why he had come to the apartment, and that Stoico thought that something might have “gone wrong.” If something could have “gone wrong,” something could have “gone right” — that is to say, according to plan. It was not unreasonable for the jury to conclude that the two men had entered into an agreement for the distribution of the marihuana. See Commonwealth v.

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Cite This Page — Counsel Stack

Bluebook (online)
699 N.E.2d 1249, 45 Mass. App. Ct. 559, 1998 Mass. App. LEXIS 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-stoico-massappct-1998.