Com. v. Camerano3/26/1997
Controlled Substances. Conspiracy.
KASS, J. In order to convict Antonio Camerano, the defendant, of conspiracy to possess marihuana with intent to distribute it (G. L. c. 94C, § 40), the Commonwealth was bound to prove that Camerano had agreed with his tenant, Robert Howell, to cultivate, cure, process, and sell marihuana. See Commonwealth v. Cook, 10 Mass. App. Ct. 668, 671, 411 N.E.2d 1326 (1980). See also Attorney Gen. v. Tufts, 239 Mass. 458, 493, 132 N.E.2d 522 (1921); Commonwealth v. Nelson, 370 Mass. 192, 196, 346 N.E.2d 839 (1976); Commonwealth v. Pratt, 407 Mass. 647, 653-654, 555 N.E.2d 559 (1990); Commonwealth v. Nighelli, 13 Mass. App. Ct. 590, 593-594 & n.3, 435 N.E.2d 1058 (1982), which collect Massachusetts authorities and general authorities.
After trial in the District Court, a jury of six returned a verdict of guilty. Camerano has appealed on the ground that it was error not to have granted his motion for a required finding of not guilty. We decide that the Commonwealth's evidence, viewed in the light most favorable to the prosecution, did not establish participation by the defendant in an agreement and combination to accomplish a criminal purpose. We state the facts that the jury could have found at the close of all the evidence, when the motion for a required finding of not guilty, initially made upon completion of the prosecution's case, was renewed by defense counsel. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). See Commonwealth v. Phinney, 416 Mass. 364, 373-374, 622 N.E.2d 617 (1993); Commonwealth v. Vaughn, 23 Mass. App. Ct. 40, 42-45, 498 N.E.2d 1072 (1986); Smith, Criminal Practice & Procedure § 1910 (2d ed. 1983 & Supp. 1996). We do not, of course, consider evidence contrary to that of the Commonwealth offered by the defendant, although we do consider evidence that the Commonwealth does not controvert and which fills in useful detail, namely how Camerano had met Howell and what monthly rent Camerano, as landlord, and Howell, as tenant, established. Cf. Commonwealth v. Kelley, 370 Mass. 147, 150 n.1, 346 N.E.2d 368 (1976).
On September 13, 1993, members of the middle district regional drug task force, the National Guard marijuana counter drug operation team, and State police engaged in fly-over surveillance by helicopter of Spencer and parts of West Boylston. After forty-five minutes in the air, they spotted a green-colored, roofless structure in which vegetation was growing. The structure was in a clearing at the end of a 200-foot unpaved driveway running off Redemption Rock Trail in Sterling. As soon as they returned to base, some of the officers applied themselves to the business of obtaining, and in due course obtained, a warrant to search the open structure, as well as a house, a house trailer, and a utility trailer that were in the clearing.
What the search party found was the residence of the defendant and his wife; some sixty feet behind it, the roofless structure that had attracted their interest; some one hundred feet behind that, a house trailer; and another one hundred feet behind the house trailer, a blue utility trailer. The Camerano property was in a pine woods. There were no neighbors within one hundred yards.
Such was the strength of the aroma wafting from the green structure that the search party officers, who had developed educated noses for marihuana, sniffed it at a distance of sixty feet. Sylvia Camerano, the defendant's wife, was home when the police arrived and denied knowledge of what was going on in the green enclosure. Also present when the police made their raid was Robert Howell, a tenant of the Cameranos. For $200 a month, Howell had arranged to rent land on which he pitched his house
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