Opinion
13-P-50
12-31-2014
COMMONWEALTH v. THOMAS GALVIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of distribution of cocaine and distribution of cocaine within 100 feet of a public park or playground. At a separate bench trial, the defendant was convicted of a second or subsequent offense of distribution of cocaine. On appeal, he claims that the prosecutor's opening statement and closing argument contained errors, his conviction of distribution of cocaine within 100 feet of a public park is invalid due to a 2012 amendment to the controlling statute, and the judge imposed an illegal sentence. We affirm the defendant's convictions, but we vacate the sentence imposed on the park zone conviction and remand the matter for reconsideration of that sentence.
1. Opening statement and closing argument. For the first time on appeal, the defendant claims the prosecutor misstated the evidence he expected to elicit at trial in his opening statement and then, in his closing argument, misstated the evidence the jury had heard. We disagree.
The defendant claims that in his opening statement the prosecutor improperly told the jury he expected Framingham police Detective Jeffrey DeRosa (who was working undercover) to testify regarding an attempt to buy cocaine from the defendant, but the defendant did not have any at the time, and that the defendant gave DeRosa his telephone number to arrange for a sale later in the day. The prosecutor also stated that he expected DeRosa would testify that he received a telephone call from the defendant, who arranged the sale with another individual to take place in a park that evening.
In the prosecutor's closing argument, the defendant similarly claims the prosecutor improperly attributed to the defendant statements that the defendant told DeRosa that he would have cocaine, that he would have cocaine later, that he would telephone DeRosa when he had the cocaine, and that a man in the park (Luis Diaz) would sell DeRosa cocaine. The defendant also claims the prosecutor erroneously argued that the defendant referred to himself as the "middle man." The harm, the defendant argues, in all of these claimed misstatements, was that the evidence only revealed that he told DeRosa where DeRosa could purchase cocaine. Even if we shared the defendant's seemingly innocent view of the evidence, the prosecutor was not required to share that view. Rather, the prosecutor was entitled to marshal the evidence in favor of a conviction, which included urging reasonable inferences upon the jury that led the jury in that direction. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
At trial, the evidence supported the inference that the defendant could arrange to sell DeRosa cocaine through a "Hispanic male" in the park. The prosecutor's statement and argument merely drew fair inferences from the evidence surrounding the drug transaction. Indeed, the evidence revealed that the defendant had DeRosa's cellular telephone number and he had agreed to help DeRosa obtain cocaine. This same evidence supports the prosecutor's argument that the defendant had cocaine or would have it later, and that the man in the park would sell it to DeRosa, as the Commonwealth's theory was that the defendant and Diaz were working together in a joint venture.
There was additional evidence at trial that supported a conclusion that the defendant and Diaz were engaged in a joint venture. Detective Martinez observed the defendant leaving his home with Diaz, walk towards the park with Diaz, and watch from nearby the drug transaction until its completion. After the cocaine was sold, the defendant's involvement continued because as he walked home, he checked several parked cars in the area for possible witnesses to the transaction.
Finally, there was ample evidence to support the defendant's role as a middle man even if he himself did not self-employ that label. In addition to the above evidence, the argument merely paraphrases the defendant's statement to Detective Martinez in which the defendant admitted after his arrest that he arranged the drug sale to support his own habit. Given the evidence supporting the closing argument, and the prosecutor's good faith basis for what he expected the evidence to be in his opening statement, we cannot conclude there was any error let alone a substantial risk of a miscarriage of justice.
2. Distribution in a park zone. The defendant claims that we must vacate his conviction for distribution of cocaine within 100 feet of a public park because the sale occurred after midnight. We disagree. The defendant's argument is based on the 2012 amendments to G. L. c. 94C, § 32J, that punish narcotics offenses in a school zone. See St. 2012, c. 192, §§ 30, 31. The amendments reduced the distance wherein "school zone" violations could take place from 1,000 feet to 300 feet and further provided that such violations must "occur between 5:00 a.m. and midnight." Ibid. However, the Legislature made no change to the statutory language associated with "park zone" violations. Moreover, the school and park zone offenses are delineated in the disjunctive, which indicates that G. L. c. 94C, § 32J, can be violated in either of two manners. See Commonwealth v. Davie, 46 Mass. App. Ct. 25, 27 (1998). At bottom is the fact that the Legislature did not impose temporal limitations on park zone violations, and we are not free to engraft them. See King v. Viscoloid Co., 219 Mass. 420, 425 (1914) (We may not "read into the statute a provision which the Legislature did not see fit to put there"). The defendant's argument is without merit.
3. Sentencing. Finally, the defendant claims the sentence he received for the park zone violation is illegal and resentencing is required. Because a two and one-half years sentence is permitted by the statute, we hesitate to conclude it was illegal. Nonetheless, as the Commonwealth admirably concedes, the record supports the defendant's suggestion that the judge may have mistakenly believed that she lacked authority to impose a sentence of less than two and one-half years based on incorrect representations by the prosecutor and defense counsel. As such, the case is remanded for the judge to determine if her sentence for the G. L. c. 94C, § 32J, violation was based on a misunderstanding which requires resentencing.
If the defendant had been sentenced to State prison under G. L. c. 94C, § 32J, the minimum mandatory sentence would be two and one-half years. However, if the defendant is sentenced to the house of correction, the minimum mandatory sentence would be two years. Ibid.
On the charge of distribution of cocaine within 100 feet of a public park, the sentence is vacated, and the matter is remanded for resentencing consistent with this memorandum and order. The judgments are otherwise affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 31, 2014.