Opinion
No. 15–P–268.
08-26-2016
COMMONWEALTH v. Wayne DAWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Wayne Dawn, was convicted of possession of heroin with intent to distribute, and of doing so within a school zone. He appeals, arguing that the judge erred in denying his pretrial motion to dismiss and, at trial, his motion for required findings of not guilty. He also alleges that the Commonwealth presented “false evidence” to the clerk-magistrate in the application for a criminal complaint, denying him due process of law. We affirm.
Motion to dismiss. “[A] motion to dismiss a criminal complaint for lack of probable cause is decided from the four corners of the complaint application, without evidentiary hearing.” Commonwealth v. Huggins, 84 Mass.App.Ct. 107, 111 (2013). “The complaint application, like a grand jury presentment, must contain sufficient evidence to establish the identity of the accused and probable cause to arrest him. All that is required is ‘reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the defendant had committed ... an offense.’ “ Commonwealth v. Bell, 83 Mass.App.Ct. 61, 63 (2013) (citations omitted). “Probable cause is considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause.” Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). We review the judge's probable cause determination de novo. Commonwealth v. Tejeda, 89 Mass.App.Ct. 625, 626 (2016).
Here, the issue before the motion judge was whether the clerk-magistrate who issued the complaint had probable cause to believe that the evidence seized pursuant to a search warrant of the apartment where the defendant was arrested supported charges of possession of heroin with intent to distribute, and doing so in a school zone. The police report attached to the application for a criminal complaint listed heroin and items associated with drug distribution seized from the apartment. The police found no paraphernalia associated with personal use of drugs.
According to the police report, the items seized included four small clear plastic bags containing what was believed to be heroin; $120 in a wallet on the defendant's person; four clear plastics bags “with corners missing” contained in a larger plastic bag; two digital scales; mail found in the bedroom dresser addressed to the defendant; a cellular telephone; and a set of keys, one of which unlocked the door of the apartment.
Based on this information, the clerk-magistrate was warranted in finding probable cause that the defendant was distributing drugs, not merely using them. Contrast Humberto H., 466 Mass. at 567. The police report also stated that the “property ... where the search warrant was executed abuts the property of the ... School, well within 300 feet.” See G.L.c. 94C, § 32J. The defendant's motion to dismiss the complaint was properly denied.
Motion for required findings of not guilty. “When reviewing a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). We must consider whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Id. at 677, quoting [from] Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).” Commonwealth v. McWilliams, 473 Mass. 606, 610 (2016).
Trooper Eric Telford, of the Massachusetts State police testified at trial as a Commonwealth expert. He testified that, in determining whether a suspect was engaged in the distribution of narcotics, an investigator would look at the evidence seized, including cellular telephones, cash, scales and packaging materials, and the quantity of drugs. He noted that some dealers are also users, so a search would be made for paraphernalia used to ingest the drugs. Telford also testified that the most common packaging seen in distribution of drugs is “corner-cut baggies”; there will be packages of unused bags or “remnants where the two corners are missing in the trash or discarded somewhere ... and if [the investigator] see[s] the corners missing of each bag, that's indicative [that] someone used those two corners to package amounts of heroin for street level dealing.” When the prosecutor posed a hypothetical question that closely tracked the evidence in this case, Telford opined, “[I]f there's nothing to ingest the heroin and you have corner-cuts and some contraband still bagged with a scale and $120, that would be more, that's pointing towards a, an intent to distribute that heroin or, and that they had already distributed some based on the corner-cuts that are already missing from whatever they had originally.”
Telford testified that scales are commonly used in distribution, where dealers purchase a larger quantity, then cut and package the drugs in smaller amounts, usually selling for forty or fifty dollars; he stated that the cash amounts found on suspects vary.
The prosecutor asked: “If you find in a room about $120 in cash, clear plastic baggies with sections cut out, a digital scale and under a gram of heroin separated into individual baggies, is that more consistent with distribution of narcotics or consistent with personal use of narcotics?”
Telford's opinion was properly admitted because it was “limited to an opinion that the hypothetical facts were consistent with possession of [heroin] with the intent to distribute,” Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 457 (2006), quoting from Commonwealth v. Wilson, 441 Mass. 390, 401 (2004), and did not “directly speak to, or express a point of view, on the issue of guilt or innocence.” Grisset, supra at 457–458.
In this case, in order for the defendant to be convicted of possession with the intent to distribute heroin, the Commonwealth had the burden of proving beyond a reasonable doubt (1) that the defendant knowingly possessed the drug, and (2) that he intended to distribute or to dispense it to another person. See G.L.c. 94C, § 32D. The defendant does not challenge the charge of possession, but argues that there was insufficient evidence to prove he intended to distribute the drugs.
Standing alone, a small amount of drugs possessed by the defendant may be insufficient to prove possession with intent to distribute; however, taken together with the other items seized within the bedroom where the defendant was found—the cut plastic bag, the scales, cash, mail addressed to him, and the absence of drug use paraphernalia—the evidence recovered is sufficient to prove intent to distribute. Contrast Commonwealth v. Sepheus, 468 Mass. 160, 164–166 (2014). “A ‘defendant's intent to distribute a controlled substance “is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances developed at the trial.” ‘ “ Id. at 164, quoting from Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). Ultimately, the “weight and credibility of the evidence is the province of the jury.” Commonwealth v. Dubois, 451 Mass. 20, 28 (2008).
Reviewing the evidence in the light most favorable to the Commonwealth, and all permissible inferences drawn therefrom, we are satisfied that the Commonwealth presented “enough evidence that could have satisfied a rational trier of fact of each ... element beyond a reasonable doubt.” Commonwealth v. Torres, 468 Mass. 286, 292 (2014), quoting from Latimore, 378 Mass. at 677–678. We see no error.
The defendant also argues that the clerk-magistrate was left with the impression that all four of the bags seized from the defendant's bedroom had cut corners when “the actual evidence was that corners were cut off one plastic bag.” He agrees that no motion to dismiss was filed on that ground. It is difficult to see now how the error could have created a substantial risk of a miscarriage of justice when the trial jury heard “the actual evidence” and convicted the defendant nonetheless. We see no risk of a miscarriage of justice.
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Judgments affirmed.