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Commonwealth v. Almele

Appeals Court of Massachusetts, Bristol

March 27, 2015

Commonwealth
v.
Marwan M. Almele

Argued December 9, 2014.

Complaint received and sworn to in the New Bedford Division of the District Court Department on October 22, 2010.

The case was tried before Christopher D. Welch, J.

Patrick A. Michaud for the defendant.

Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.

Present: Cohen, Fecteau, & Massing, JJ.

OPINION

[27 N.E.3d 834] Fecteau, J.

The defendant appeals from his convictions, following a jury trial in the District Court, of unlawful possession of class B and C controlled substances with intent to distribute, in violation of G. L. c. 94C, § § 32A( a ) and 32B( a ), respectively, and possession of a class B controlled substance, in violation of G. L.

Page 219

c. 94C, § 34.[1] He contends that the judge erred in permitting statements of a purported coventurer to be admitted against him without sufficient evidence, independent of those statements, of the existence of such a joint venture or conspiracy of which he was a part. He further contends that his motion for a required finding of not guilty was denied in error as evidence of his involvement as a joint venturer was insufficient. He also complains that opinion testimony from a police officer was erroneously admitted [27 N.E.3d 835] in evidence and that the officer impermissibly offered an opinion on the defendant's guilt. As we are unpersuaded bye these contentions, we affirm the convictions.

Background.

From the evidence admitted during the Commonwealth's case in chief, including statements of the defendant's nephew, alleged by the Commonwealth as a coventurer of the defendant, the jury could have found the following facts.[2] On October 21, 2010, Captain Paul Oliveira of the New Bedford police department drug unit began a drug investigation as a result of a telephone call to the department's anonymous tip line. He called the telephone number that was provided through the tip, and spoke a number of times with one Ahmad, a person whose voice he recognized as someone who had provided information to him in an investigation a few years earlier. In speaking with Ahmad, Oliveira testified that he had heard that Ahmad was " trying to get rid of some Percocets," and Oliveira indicated that he was interested in purchasing the pills. Ahmad agreed, but explained that the pills were not his but his uncle's, who got thirty-milligram and ten-milligram pills by prescription, 180 of each per month, but had just twenty thirty-milligram pills remaining for sale, for " 500 bucks, thirty bucks a pill." He continued that his uncle " likes selling them in 100, 100-pack," and would give a much better deal if Oliveira bought in that quantity. Ahmad explained that his uncle had " just sold 100, his last 100 of the, ah, of the tens," for $400, or four dollars per pill, and if he [Oliveira] wanted to buy 100 pills next time, Ahmad said, he could get him

Page 220

a better deal than the thirty dollars per pill he was currently offering.

They discussed arrangements for a purchase, including that Oliveira would have to pick him up and bring him to his uncle's house, as Ahmad had no other way of getting there, and because his uncle was babysitting and could not get to Ahmad's house. The arrangement also included the location for picking him up, that the $500 be shown up front, and that Ahmad would then direct Oliveira to his uncle's house, from which his uncle would emerge and do the deal outside so that Oliveira would neither have to give the money to Ahmad nor have to go inside the house himself. Because Oliveira was fearful that Ahmad would recognize him, he arranged with Detective Candido Trinidad, another member of the narcotics unit, to act in his stead, having explained to him the arrangements he had made with Ahmad.

At the time Trinidad approached the location to pick up Ahmad, Oliveira, who was surveilling him, was on the telephone with Ahmad, and could see Ahmad walking down the street " watching," while talking on the telephone with him. Trinidad picked up Ahmad, who sat in the front passenger seat, and they drove to 480 Cottage Street, Ahmad's uncle's house. Along the way, they spoke about the possibility of Trinidad's purchasing more pills in the future from Ahmad's uncle, at a ...


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