Opinion
16-P-779
05-15-2017
COMMONWEALTH v. Nelson B. HOLLOWAY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In December of 2014, the defendant pleaded guilty in Superior Court to one count of unlawfully carrying a dangerous weapon, and two counts of possession of narcotics with intent to distribute. In January of 2016, he sought to withdraw his pleas on the grounds that they "were defective because the facts recited at the plea hearing failed to establish that he intended to distribute the substances that he allegedly possessed and that he possessed a dangerous weapon." On the defendant's appeal of the denial of that motion, we affirm.
Specifically, the defendant was indicted on charges of possession of a class A substance (heroin) with intent to distribute, and possession of a class B substance (cocaine) with intent to distribute, both as subsequent offenses.
Background. The following facts are taken from the prosecutor's offer of proof at the plea bargain hearing. In the course of conducting an undercover drug surveillance, Brockton police officers recognized the defendant from previous arrests and they observed him engaged in evasive activity. They approached him, asked him his name, and during a patfrisk discovered a knife with a four-inch folding blade in his front pocket. The defendant had an outstanding arrest warrant and the police took him into custody. At the police station, they discovered thirty-five individually wrapped packages of heroin and cocaine on his person. These included sixteen knotted bags of heroin contained in a felt pouch tied to the drawstring of his pants, and nineteen bags of crack cocaine secreted in the area of his buttocks.
Carrying a dangerous weapon. As both sides acknowledge, one can violate G. L. c. 269, § 10(b ), in two different ways. One is by carrying a weapon of the types that are expressly enumerated in the beginning of § 10(b ). See Commonwealth v. Higgins, 85 Mass. App. Ct. 534, 535-537 (2014). The other is by carrying a dangerous weapon—regardless of whether it is among those expressly prohibited in the statute—"when arrested upon a warrant for an alleged crime." G. L. c. 269, § 10(b ).
With this framework in the background, the defendant argues that the Commonwealth's offer of proof did not support a violation based on the first theory, because there were no allegations to suggest that the type of knife found on him is among those listed in the beginning of § 10(b ). The Commonwealth appropriately concedes that point, and argues instead that the offer of proof supported a violation based on the second theory, carrying a dangerous weapon when arrested on an outstanding warrant. The defendant counters that the language of the indictment locked the Commonwealth into relying on the first theory. See Commonwealth v. Mayotte, 475 Mass. 254, 264-265 (2016) (where indictment charged defendant with reckless endangerment of a child based only on serious bodily injury, judge was not free to introduce alternative theory in his instructions to the jury). We turn to that issue.
The indictment charged that the defendant "did unlawfully carry on his person or under his control in a motor vehicle a dangerous weapon, to wit: LOCK BLADE KNIFE." The description of the knife following the "to wit" introductory language does not require the Commonwealth to prove that the dangerous weapon at issue met that description. See Commonwealth v. Hobbs, 385 Mass. 863, 869-871 (1982). Nor does the particular description of the weapon (lock blade knife) indicate that the Commonwealth was proceeding only on the first theory. The mere fact that a knife has a blade that locks into place does not mean that the knife is prohibited under the statute. See Higgins, supra at 536. We agree with the Commonwealth that—with or without the gratuitous description of the knife—the broad language of the indictment encompassed either theory. Contrast Mayotte, supra. To the extent that there was any confusion about which theory or theories the Commonwealth was relying on, the defendant could have requested a bill of particulars. See Commonwealth v. Soares, 51 Mass. App. Ct. 273, 276 n.4 (2001). He did not do so, instead choosing to plead guilty.
As Higgins recognized, the beginning of G. L. c. 269, § 10(b ), includes "catch-all statutory language that applies to 'a device or case which enables a knife with a locking blade to be drawn at a locked position."' Higgins, supra, quoting from § 10(b ). Thus, to meet such language, the knife must be able to be drawn in a locked position; the fact that a knife blade can be locked in place, without more, is insufficient.
That leaves the question whether there was a sufficient basis in the Commonwealth's offer of proof to support a plea based on the second theory. The prosecutor specifically recited that the defendant had an outstanding arrest warrant, and it is plain that the defendant was not arrested for the narcotics charge, because the drugs were not discovered until the defendant was taken to the station. Nevertheless, the defendant argues that there was an insufficient showing that he was arrested "upon" the outstanding warrant. See Commonwealth v. Ford, 86 Mass. App. Ct. 911, 912 (2014) (to be convicted of carrying a dangerous weapon "when arrested upon a warrant," "police knowledge of the warrant must precede any arrest and also be the reason for the arrest"). According to the defendant, because the Commonwealth was not specific as to the exact chronology of the events that took place at the scene, this left open the possibility that the police initially placed the defendant under arrest for carrying a prohibited weapon and only after that, discovered the outstanding warrant.
Throughout the offer of proof, the prosecutor laid out the facts in the order in which the arresting officers became aware of them and, at several points, tied the facts to the officers' knowledge of the situation as events unfolded. It is therefore significant that the discussion of the active warrant comes between a statement noting that one of the officers had recognized the defendant from prior arrests and the discussion of the arrest itself. Based on the facts alleged, and on the order in which the factual statements were made, it reasonably can be inferred that the Commonwealth alleged that the defendant was arrested upon the outstanding warrant and that the defendant pleaded guilty to the charge in the face of such allegations. A factual record supporting proof beyond a reasonable doubt is not required in this context. See Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015) ("[B]y pleading guilty, a defendant waives his right to be convicted on proof beyond a reasonable doubt").
In addition, as the defendant ably highlights, the offer of proof is devoid of any suggestion that the knife found on the defendant was of the type expressly prohibited by the statute. This strengthens the inference that he was arrested because of the outstanding warrant, not based on his possession of the knife alone.
Possession with intent to distribute. The defendant's argument with regard to the charge of possession with intent to distribute requires little discussion. He challenges only the sufficiency of the offer of proof regarding intent to distribute. The defendant's being found in a public setting, while evading police, with thirty-five individually wrapped packages of narcotics secreted on his person is more than ample to support such intent. See Commonwealth v. Sepheus, 468 Mass. 160, 165-166 (2014), and cases cited (setting forth the typical factors used to demonstrate intent to distribute).
We do not reach, and place no reliance on, the Commonwealth's argument that the defendant's prior convictions for possession with intent to distribute could be considered with regard to the adequacy of the offer of proof on his intent.
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Order denying motion to withdraw guilty pleas affirmed.