State v. Kaba

798 A.2d 383, 2002 R.I. LEXIS 142, 2002 WL 1164145

• Court: Supreme Court of Rhode Island
• Decided: June 3, 2002
• Docket: 1999-113-C.A
• Status: Published

Opinions

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. Pasci-ucco 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 Im-est 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 Traore ⁴ 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 Pas-ciucco 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. “[Allegations 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 that “not all arrests require the advisement of Miranda,” that the warning is necessary “only when the police intend to interrogate a suspect,” and therefore, no warning was necessary under these circumstances. “We have long adhered to the view that findings made by a trial justice relating to the giving of Miranda admonitions and their sufficiency will not be set aside or disturbed on review unless clearly erroneous.” Id. (citing State v. Houde, 596 A.2d 330, 335-36 (R.I.1991)). Because Kaba’s statements were spontaneous and not the product of interrogation, we will not disturb the trial justice’s finding.

Both defendants argue that the trial justice should have excluded the statements pursuant to Rule 403. We disagree. “Rule 403 may be invoked to exclude evidence that is prejudicial to defendant to the extent that the negative effect outweighs its probative value.” State v. Grundy, 582 A.2d 1166, 1172 (R.I.1990). “The ultimate determination [under Rule 403] of the effect of * * * evidence is within the trial justice’s discretion” and will not be disturbed unless “we find that the trial justice abused his discretion.” Breen, 767 A.2d at 59 (quoting State v. Marini, 638 A.2d 507, 516 (R.I.1994)). The record is devoid of any evidence that the trial justice abused his discretion by admitting the statements. The statements are relevant to determine defendants’ knowledge of the contents of the package. Thus, we deny defendants’ Rule 403 claim.

Ill

Voir Dire

Kaba argues that the trial justice improperly restricted his attorney’s inquiry of potential jurors during voir dire. We disagree.

Rule 24(a) of the Superior Court Rules of Criminal Procedure governs the examination of potential jurors. Rule 24(a) provides that:

“The Court may permit a defendant or the defendant’s attorney and the attorney for the State to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the defendant or the defendant’s attorney and the attorney for the State to supplement the examination by further inquiry or, upon request, shall itself put to the prospective jurors such additional questions as are submitted by the parties or their attorneys. The examination of prospective jurors shall be for the purpose of determining whether a prospective juror is related to a party, or has any interest in the case, or has expressed or formed an opinion or is sensible of any bias or prejudice therein. The examination shall be conducted under oath if requested.”

“Although the trial justice may not hinder the attorneys’ attempts to inquire into the objectivity of the prospective jurors, the scope of examination of prospective jurors during voir dire is within the sound discretion of the trial justice.” State v. Goodreau, 560 A.2d 318, 323 (R.I.1989) (citing State v. Taylor, 423 A.2d 1174 (R.I.1980)). (Emphasis added.) In the instant case, Kaba points to various examples of how the trial justice improperly limited the scope of voir dire. However, none of them rise to the level of reversible error. For example, we have held that failure to “permit any inquiry concerning racial prejudice [runs] afoul of the explicit language of Rule 24(a) which permits such questioning” and is grounds for reversal. Taylor, 423 A.2d at 1176. In the instant case, none of the objections Kaba makes concerns racial prejudice. In addition, the trial justice properly instructed the jury on the presumption of innocence, which was furthered by the wide latitude defendants’ attorneys were afforded in questioning the potential jurors about possible bias or prejudice.

Finally, we note that “[t]he exercise of [the trial justice’s] discretion does not mean that [the trial justice] must permit every question * * * that can be devised by an ingenious attorney.” State v. Spivey, 114 R.I. 43, 48, 328 A.2d 414, 417 (1974). The record reflects that the purpose of voir dire was adequately fulfilled. As such, the trial justice did not abuse his discretion.

IV

Legal Sufficiency of the Evidence

The defendants argue that the evidence presented was legally insufficient to prove beyond a reasonable doubt that defendants knew the package contained a controlled substance. As such, defendants argue that the trial justice committed two errors by denying both the motions for judgment of acquittal and the motion for a new trial. We disagree, and examine first the motion for a new trial.

Motion for a New Trial

The standard of review applied in evaluating a motion for new trial is well established. See State v. Otero, 788 A.2d 469, 472 (R.I.2002). “In deciding a motion for a new trial, the trial justice acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence.” Id. (quoting State v. Banach, 648 A.2d 1363, 1367 (R.I.1994)). The motion for a new trial should be denied “[i]f, after conducting this independent review, the trial justice agrees with the jury’s verdict or if the evidence is such that reasonable minds could differ as to the outcome.” Id. (citing Marini, 638 A.2d at 515-16 and State v. Clark, 603 A.2d 1094, 1096 (R.I.1992)).

When ruling upon this motion, the trial justice does not need to refer to all the evidence supporting the decision but “need only cite evidence sufficient to allow this [C]ourt to discern whether the justice has applied the appropriate standards.” Otero, 788 A.2d at 472 (quoting Banach, 648 A.2d at 1367). If the trial justice has complied with this' procedure, his decision will be accorded great weight, and will not be disturbed unless the trial justice has overlooked or misconceived material evidence or was otherwise clearly wrong. See State v. Golembewski, 791 A.2d 468, 470 (R.I.2002) (citing State v. Luanglath, 749 A.2d 1, 4 (R.I.2000)).

In the instant case, the record demonstrates that the trial justice accurately and adequately performed the requisite review and did so carefully and with sufficient reasoning for denying the motion. Although the trial justice did not specifically review the testimony of each witness, he noted that the testimony was uncontested and, in his evaluation of the evidence, found the testimony to be credible. The .trial justice reviewed the evidence, including the fact that the package was sent from Thailand and was seized at JFK airport in New York, and that concealed within the five bowls was a significant amount of heroin with a street value ranging from $1.5 million to $3 million.

Next, the trial justice examined the law on possession of a controlled substance as relayed to the jury in his instructions, which requires “proof of a conscious possession of the contraband, and an intentional control of a designated object with knowledge of its nature.” Furthermore, he stated that “[i]t could be shown by evidence of acts, declarations or conduct of the accused from which an inference may be fairly drawn that defendant knew of the existence of narcotics at the place they were found.” The trial justice also noted that “[kjnowing or intentional possession of contraband cannot be inferred merely from the fact of delivery to defendants by mail of a sealed package containing contraband, and that acceptance of the package by itself cannot yield an inference of knowledge by the recipient of its contents. Something more by way of intended circumstances must be shown” to prove that defendants knew what was in the package and intended control.

Furthermore, the trial justice examined the evidence of defendants’ response to Izzo when receiving the package that Kaba was “waiting for a package from Thailand” and Traore exclaimed “the package is for my brother in New York.” The trial justice went on to discuss Kaba’s post-arrest statement asking if he was in trouble, and stated that it “would suggest or would cause a reasonable juror to infer that * * * [Kaba made the statement] because of having in his hands and placing in the trunk the heroin received from New York.” In addition, the trial justice discussed the fact that Kaba was “flipping [the package] over his head” as he left the post office and stated that “I think a reasonable person can infer that one had to know what was in that package” because Kaba’s actions ran the risk of damaging the package’s contents, possibly something of great value. Finally, the trial justice stated that:

“the amount [ ] [of heroin], the manner in which the defendants acted, would allow and did allow twelve jurors to unanimously agree they felt the State more than satisfied its burden in proving beyond a reasonable doubt that the defendants possessed that is they knew what was in the package and they intended to exercise control and dominion over that package.”

The trial justice denied defendants’ motion for a new trial.

Having concluded that the trial justice properly performed the requisite review, we next consider whether the trial justice overlooked or misconceived material evidence or was otherwise clearly wrong. Otero, 788 A.2d at 472 (citing State v. Bleau, 668 A.2d 642, 646 (R.I.1995)). The defendants maintain that the facts relied upon by the trial justice were insufficient to prove beyond a reasonable doubt that they knew of the package’s contents. Furthermore, defendants argue that the state failed to carry its burden because it relied on a “pyramid of inferences” which were not the only inferences to be drawn. The defendants rely on a number of cases from other jurisdictions to persuade this Court. We reject this argument.

In the instant case, we are satisfied that sufficient evidence was introduced to support a finding that defendants had knowledge of the package’s contents. “In Rhode Island possession within the context of a criminal statute means an intentional control of an object with knowledge of its nature.” State v. Colbert, 549 A.2d 1021, 1023 (R.I.1988) (citing State v. Jenison, 442 A.2d 866, 875 (R.I.1982) and State v. Gilman, 110 R.I. 207, 215, 291 A.2d 425, 430 (1972)). “Knowledge of the nature of the object must necessarily precede the exercise of such control.” Id. at 1023-24 (citing Gilman, 110 R.I. at 215, 291 A.2d at 430). “Proof of the knowledge of the object, which is essential to conviction, may be shown by evidence of acts, declarations, or conduct of the accused from which an inference may be drawn that he or she knew of the existence of narcotics at the place where they were found.” Id. at 1024. Furthermore, we note that “the mere fact that the consignee takes possession of the container would not alone establish guilt of illegal possession or importation of contraband.” Illinois v. Andreas, 463 U.S. 765, 769 n. 3, 103 S.Ct. 3319, 3323 n. 3, 77 L.Ed.2d 1003, 1009 n. 3 (1983).

The record contains sufficient evidence from which a jury could infer that defendants knew the package contained heroin. A postal slip was left at defendants’ residence on March 20, 1997, notifying them that a package was available for them at the post office, and that the sender was “Thailand.” Detective Briden testified that he witnessed a vehicle registered to Traore stop at 124 West Avenue. Detective Briden then saw both defendants leave their residence and get into an unregistered vehicle and drive to the post office. Izzo testified that defendants entered the post office to claim the package. Izzo approached the two and asked whether they were at the post office to pick up the package from Thailand, to which Kaba replied, “[y]eah, Thailand.” Traore also stated that the “parcel was for his brother” and that “he was in New York.” After producing identification, Traore signed the slip releasing the package, and both left, with Kaba carrying the parcel.

While conducting surveillance across the street, Det. Paseiucco testified that the two were “jovial” as they left the building, and that Kaba was hoisting the package “over his head,” similar to a weightlifter and signifying victory. As Kaba was being arrested, he asked whether he was in trouble, to which Det. Briden replied that he was in big trouble. Kaba then asserted that “he had nothing to do with what was in the package.” Relying upon reasonable inferences that can be drawn from the evidence we have just summarized, we are convinced that a jury could find beyond a reasonable doubt that defendants were folly aware that the package contained heroin.

On the issue of control, the evidence is equally strong. Again, both defendants arrived at the post office to claim the package. After Traore signed for the package, Kaba carried it from the post office to the vehicle. Upon returning to the vehicle, Kaba placed the package in the rear of the car and both men entered the vehicle. These facts indicate that both men exerted dominion and control over the package. Thus, we are convinced that a jury could find beyond a reasonable doubt that the two possessed the heroin.

The circumstantial chain of evidence in this case discloses that the number of the street address matches the defendants’ address; the name of the street was off by one letter; an individual named Traore lived at the West Street address and was observed operating a motor vehicle registered to an individual named Traore. Thus, from the nearly correct street address, the identical last name of the addressee of the package, the use of an unregistered vehicle by both defendants to pick up the package, and the subsequent behavior of defendants, a jury could reasonably find that defendants were expecting the contraband and exercised dominion and control over the package sufficient to establish possession with actual knowledge of its contents.

The defendants argue also that the trial justice’s consideration of the evidence was clearly wrong since there are alternative explanations for defendants’ behavior that are inconsistent with guilt. We disagree.

This Court has stated that:

“The pivotal question in determining whether circumstantial evidence is sufficient to prove guilt beyond a reasonable doubt is whether the evidence in its entirety constitutes proof beyond a reasonable doubt or is of such a nature that it merely raises a suspicion or conjecture of guilt. Under this test, it is possible for the state to prove guilt by a process of logical deduction, reasoning from an established circumstantial fact through a series of inferences to the ultimate conclusion of guilt. The pyramiding of inferences during this process of deduction becomes speculative, however, and thus insufficient to prove guilt beyond a reasonable doubt when the initial inference in the pyramid rests upon an ambiguous fact that is equally capable of supporting other reasonable inferences clearly inconsistent with guilt.” State v. Caruolo, 524 A.2d 575, 581-82 (R.I.1987) (citing State v. Alexander, 471 A.2d 216, 218 (R.I.1984) and In re Derek, 448 A.2d 765, 768 (R.I.1982)).

In the instant case, defendants argue the trial justice committed error because their conduct after their arrest could be attributed to bewilderment instead of an awareness of guilt. Furthermore, defendants contend that Kaba would not have lifted the package over his head if he knew it contained heroin because the behavior increases the possibility of dropping the package and having it inadvertently open in the street. However, we do not agree that defendants have demonstrated that the facts are ambiguous enough to be equally capable of supporting inferences clearly inconsistent with guilt. “[T]he state is not required to disprove every reasonable hypothesis of innocence as long as the totality of circumstantial evidence offered constitutes proof beyond a reasonable doubt.” Caruolo, 524 A.2d at 582. Thus, the trial justice did not err.

Moreover, defendants argue that the trial justice was clearly wrong because Kaba’s response to Izzo that he was waiting for a package from Thailand does not demonstrate a positive act or declaration evidencing knowledge of the package’s contents since English is not his first language. The defendants also contend that the trial justice failed to consider the fact that no drug paraphernalia was found on their person and no evidence was found in their home to connect defendants with narcotics distribution. We hold that these claims are without merit. As stated, the trial justice does not need to cite to all the evidence in his determination of a motion for a new trial. The trial justice must discuss only enough for this Court to discern whether he applied the appropriate standard. See Otero, 788 A.2d at 472 (citing Banach, 648 A.2d at 1367). Thus, for the reasons stated, we will not disturb the trial justice’s ruling.

Motion for Judgment of Acquittal

The defendants’ argument that the trial justice erred in denying their motion for judgment of acquittal is similarly without merit. “In reviewing a claim of legal sufficiency of the evidence in the context of a motion for a judgment of acquittal, this Court applies the same standard as that applied by the trial court, namely, ‘[we] must view the evidence in the light most favorable to the state, * * * giving full credibility to the state’s witnesses, and draw therefrom all reasonable inferences consistent with guilt.’” Otero, 788 A.2d at 475 (quoting State v. Snow, 670 A.2d 239, 243 (R.I.1996)). However, “[t]he standard applied to a motion for judgment of acquittal requires less in the way of evidence than the standard applicable to a motion for a new trial.” Id. (quoting State v. Salvatore, 763 A.2d 985, 989 (R.I.2001)). Thus, having concluded that the evidence in this case was sufficient to withstand “the more stringent review applicable to a motion for a new trial, it follows that the evidence was also sufficient to withstand a motion for a judgment of acquittal.” Id.

Conclusion

The defendants’ appeal is denied and dismissed. The judgment of the Superior Court is affirmed. The papers of the case may be returned to the Superior Court.

1 . Although Traore fully briefed only one issue on appeal, he has adopted the arguments offered by Kaba without comment. We have previously held that this practice is permissible. See State v. Oliveira, 774 A.2d 893, 904 n. 8 (R.I.2001).

2 . At a pretrial motion to suppress hearing, it was revealed that the package was set aside by the United States Customs Service because it was sent from Thailand, a country listed by the United States Postal Service as a possible source of contraband. The parcel was X-rayed and shown to contain various kitchen utensils and five bowls. The decision was made to open the box, remove the five bowls, and subsequently break one of the bowls apart. It was discovered that the bowl had a false bottom that contained a white powdery substance that tested positive as heroin. This discovery initiated the investigation to find the addressee.

3 . The transcript states that Det. Pasciucco is a detective with the "FBTA” police, this organization does not appear to exist. We assume, therefore, that Det. Pasciucco is an MBTA detective.

4 . The postal slip actually reads "Muhamed Traere.” However, a postal worker testified at trial that the name on the package itself reads "Muaamed.” Therefore, we assume that the spelling utilized on the postal slip is erroneous.

5 . Both defendants are natives of the country of Guinea and both are native speakers of the Mandingo language. Therefore, English is not their first language.

6 . The record did not contain the judgment denying the motions for a new trial, but the trial justice’s decision is evidenced by the transcript.

7 . Traore adopts this argument in his brief but because he "lacks standing to raise any alleged violation of the codefendant[’s] * * * constitutional rights,” we do not address the merits of his claim. State v. Valenti, 772 A.2d 127, 130 (R.I.2001).

8 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).