Opinion
13-P-1640
11-14-2014
COMMONWEALTH v. BARON D. HOLMES.
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
The defendant appeals from convictions of distribution of cocaine, see G. L. c. 94C, § 32A(a), and two school zone violations, see G. L. c. 94C, § 32J, by a jury of the District Court. He asserts insufficiency of the evidence, improper remarks in the prosecutor's closing argument, and the inadmissibility of certain evidence. We affirm.
Other charges, including possession of marijuana and firearms violations, were ultimately dismissed or resulted in not guilty verdicts.
Evidence of intent to distribute. The defendant argues that the evidence before the jury supported only a charge of possession, and was insufficient with respect to any intent to distribute. Intent may be proved by circumstantial evidence. See Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 614 (1976). The evidence in this case included testimony by an experienced narcotics officer that the packaging of the drugs found on the defendant was consistent with an intent to distribute, that no implements or paraphernalia for personal ingestion were found, and that a pager and two cellular telephones were also found. Finally, the defendant had sold crack cocaine to an undercover agent less than two days before his arrest. The defendant's argument fails under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
S chool zone violations. The defendant asserts that testimony of two different measurements of the distance from the property on which he was arrested to a nearby school render the evidence insufficient. The Commonwealth was required to prove that the defendant possessed the drugs with intent to distribute "within 300 feet of real property comprising" a school. G. L. c. 94C, § 32J, as amended by St. 2012, c. 192, § 30. The evidence of the distance between the location of the sale and the school included measurements with a survey wheel and using computer-generated measurements on a map, introduced at trial as an exhibit. A city engineer testified that the relevant property lines were one hundred feet apart, while the measurement made from inside the school property to the edge of building where the defendant was arrested was 245 feet. As the Commonwealth points out, the testimony was admissible and the jury were free to weigh its credibility. The defendant further contends that the relevant measurement should have included a vertical measurement from the front door of the school building to the front door of the defendant's apartment as the "site" of the transaction. However, we expressly rejected this argument in Commonwealth v. Cintron, 59 Mass. App. Ct. 905, 907 (2003). The site of the transaction for purposes of the school zone measurement is the apartment building and that is how the measurement was taken in this case. See id. at 907-908.
The August, 2012, amendment of the statute reducing the relevant measurement for a school zone violation from 1,000 to 300 feet is retroactive and applies to all cases that had not resolved in either a guilty plea or a conviction before August 2, 2012, regardless of the date of the offense. See Commonwealth v. Bradley, 466 Mass. 551 (2013). The conviction was entered in this case on December 3, 2012. While not raised below or on appeal, the Commonwealth conceded at oral argument that the 300-foot measurement applies.
In the context of the school zone charge, the defendant also claims error in the admission of the map of the city of Everett because it does not qualify as a business record. Passing over the dubious contention that the map was created, rather than simply annotated, to be used as an exhibit, this argument is foreclosed by our decision in Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327 (2009).
The city engineer testified that he was not entirely sure of the school's property line, so he measured approximately thirty to forty feet inside of what he believed to be the property line.
The defendant contends that the measurement should have been taken from the front door of the apartment building. Nothing in Cintron supports that result.
Prosecutor's closing argument. The defendant complains that the prosecutor's closing remarks referred to the defendant as having "handed, distributed some perceptible amount of crack cocaine to another person: that's what distribution is." There was no objection; assuming error for the sake of argument, we review for a substantial risk of miscarriage of justice. This language, taken out of context, suggests the possibility that the jury were being asked to convict the defendant on the undercover purchase made two days before his arrest. However, in the context of the case as a whole, including the relevance to ongoing intent represented by the previous undercover transaction, we conclude that there was no substantial risk of a miscarriage of justice even if we were to agree with the defendant's characterization of error.
The defendant also argues that the prosecutor's failure to mention the element of intent was a misstatement of law constituting reversible error. We disagree. The prosecutor stated that the judge would "instruct [them] on the law . . . . I'm going to ask that you pay attention when the judge reads you exactly what the law is on each of these charges." The prosecutor was entitled to comment on the evidence without being required to provide a full legal description of each charge.
The defendant also complains that the remark, "It's obvious, it's there," constitutes impermissible vouching by the prosecutor that the defendant knew he possessed an unregistered firearm. We disagree. The remark was a commentary on the visible absence of a serial number on the gun that was recovered when the defendant was arrested. Again, there was no objection by the defendant. There was no error and, as the defendant was acquitted on the firearms charge, there was no prejudice, much less a substantial risk of a miscarriage of justice.
The relevant remark, in context, is, "I would suggest to you that if you find that this defendant, in fact, possessed this firearm then he certainly was aware that there was no serial number on the back of it. It's obvious; it's there. I ask you to use your own eyes when you inspect the item."
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Finally we note that the judge instructed the jury that closing arguments are not evidence.
Evidence of marijuana. We agree with the Commonwealth that the introduction of evidence of marijuana possession was not unduly prejudicial. Within reason, the prosecutor was entitled to provide a full description of what the officers found at the time of arrest. Again, we note that the judge instructed the jury in clear language: "[Y]ou are not to consider the possession of marijuana in any way in regards to actually any of the charges before this court." The judge specifically instructed that the defendant's possession of marijuana had nothing to do with "whether or not this defendant distributed, or possessed with intent to distribute, crack cocaine or whether or not he actually distributed crack cocaine."
Judgments affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: November 14, 2014.