Opinion
No. 15–P–512.
05-27-2016
COMMONWEALTH v. Manuel CORREIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the order by a judge of the Roxbury Division of the Boston Municipal Court Department allowing the defendant's motion to dismiss so much of a complaint as charged him with distribution of a class B substance (“crack” cocaine). We reverse.
The complaint also charged the defendant with conspiracy to violate the drug laws.
In allowing the defendant's motion, the motion judge relied principally on Commonwealth v. Blevins, 56 Mass.App.Ct. 206, 209–210 (2002), which found error in the failure to instruct a jury on simple possession as a lesser included offense of trafficking, in circumstances where a rational jury could have found that the defendant participated in the purchase of drugs for shared use with others. The question posed in the present case is quite different: whether the evidence, viewed in the light most favorable to the Commonwealth, supplies probable cause to believe that the defendant acted as a “middleman” or a “go-between” to facilitate the sale of drugs by one person to another. See Commonwealth v. Fluellen, 456 Mass. 517, 525 (2010).
The defendant contends that probable cause is defeated by the statement of Rivelino Dorosario, contained in the police report, to the effect that he and the defendant intended to purchase the drugs for shared use. However, a fact finder would not be required to credit Dorosario's statement, and (viewed in a light most favorable to the Commonwealth) the defendant's intent to distribute, rather than share, could be inferred from the circumstances of the exchange. As the Supreme Judicial Court has held, “to purchase the substance, even with friends' money, intending to transfer it to them, constitutes distribution within the meaning of [G.L. c. 94C].” Commonwealth v. Johnson, 413 Mass. 598, 605 (1992). See Commonwealth v. Fluellen, supra at 524–525 (“Although we have indorsed the instruction that ‘[w]here two or more persons simultaneously and jointly acquire possession of a drug for their own use intending only to share it together, their only crime is simple joint possession,’ ... that principle is inapplicable to circumstances where a defendant facilitates a transfer of drugs from a seller to a buyer”).
The police report described the following. Dorosario gave the defendant money to purchase crack cocaine from the defendant's “connection,” one Julio Baez–Perez. Dorosario drove the defendant to a designated location, dropped him off, and waited around the corner while the defendant went for a short ride with Baez–Perez. The defendant returned to Dorosario's vehicle; when police stopped the vehicle a short time later, Dorosario and the defendant were in it, and Dorosario had crack cocaine in his possession, which he said the defendant had given to him. Though as we have observed, Dorosario also stated that he and the defendant intended to share the crack cocaine, a fact finder is not obliged to credit that statement.
The decision of the Supreme Judicial Court in Commonwealth v. Jackson, 464 Mass. 758, 764–765 (2013), does not require a different result. That case, which considered social sharing of marijuana, rested in large part on the policy goals incident to the passage of G.L. c. 94C, § 32L : “to reduce the direct and collateral consequences of possessing small amounts of marijuana, to direct law enforcement's attention to serious crime, and to save taxpayer resources previously devoted to targeting the simple possession of marijuana.” Commonwealth v. Jackson, supra at 765.
It accordingly was error to allow the defendant's motion to dismiss so much of the complaint as charged distribution of a class B substance. The defendant of course remains free to press at trial his contention that he and Dorosario simultaneously and jointly acquired the crack cocaine from Baez–Perez for their shared use.
The order allowing the defendant's motion to dismiss so much of the complaint as charged distribution of a class B substance is reversed.
So ordered.