Opinion
No. 11–P–47.
2012-05-17
COMMONWEALTH v. David N. JONES.
By the Court (RAPOZA, C.J., KANTROWITZ & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, David N. Jones, of distribution of a class B substance, G.L. c. 94C, § 32A( a ), in a school zone, G.L. c. 94C, § 32J. On appeal, he claims that (1) the complaint was not supported by sufficient evidence to establish probable cause; (2) the evidence was insufficient to support a conviction; and (3) the closing argument of the prosecutor was improper. We affirm the conviction of distribution but reverse the school zone violation.
Distribution. Using the well-known Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), standard, there was sufficient evidence to warrant the distribution conviction. Three testifying officers observed the defendant park his car and make a telephone call using his cellular telephone. They then observed another individual, Charles Wilner, appear from a residential building and enter the defendant's car. The two men turned toward each other, conversed, and “they looked like they started examining something.”
Shortly after, Wilner exited the defendant's vehicle clenching something, which turned out to be two plastic bags containing cocaine, in his right hand. One of the officers testified that prior to entering the car, “[h]e didn't have anything in it.” Upon this discovery, the officer informed the third officer, who stopped and arrested the defendant. The defendant had $633 on his person. One of the officers testified to overhearing the defendant tell Wilner during booking at the police station, “Charles, Charles, listen to me clearly, you're wasting your time talking to that police officer, tell them whatever you had on you was yours, Charles.”
At trial, defense counsel objected to this statement. The judge sustained the objection “as to what it is they may have examined.”
Resolving all of the reasonable inferences in favor of the Commonwealth, a rational jury were warranted in concluding that the defendant sold the drugs to Wilner.
As what was presented to the magistrate contained similar evidence, the complaint was properly issued.
School zone. “[I]n a prosecution pursuant to G.L. c. 94C, § 32J, the Commonwealth is required to produce sufficient evidence to establish that the school is one of the types enumerated in the statute.”
Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 730 (1992). While evidence of a school's name alone is insufficient to meet the Commonwealth's burden, ibid.; Commonwealth v. Vasquez, 33 Mass.App.Ct. 950 (1992), additional evidence may suffice. Even if direct evidence is lacking, circumstantial evidence may be sufficient to enable the Commonwealth to prove its case. Commonwealth v. Laro, 68 Mass.App.Ct. 556, 559 (2007).
“[A] public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school whether or not in session.” G.L. c. 94C, § 32J, as amended by St.1998, c. 194, § 146.
Here, the Commonwealth proceeded on the theory that the Mattapan Family Service Center Head Start was a “public” facility.
The evidence that it presented in support thereof included the name of the school and a police officer's observations that he had been inside the facility, which he described as “a head start program for children who have yet to attain the age of grade school, so, I would say four and five year old children.” He “observed small children ... working at desks,”
As such, the judge's jury instructions did not include a public/private school distinction. If the school was a private headstart facility, the Commonwealth had to establish that it was accredited. Commonwealth v. Thomas, 71 Mass.App.Ct. 323, 325 (2008). As defense counsel objected exclusively to lack of an instruction on accreditation, the issue was not preserved.
“Administration Offices,” and adults in the building and where the children were located.
The officer was asked if he “observe[d] classrooms as well” and he responded, “No, just desks and what appeared to be classrooms, but it's kind of set up kind of funny in there, as opposed to like multiple classrooms it's—there were desks, ... desks for children.”
The evidence was insufficient to prove that the facility in question was “public” within the meaning of the statute. If a teacher or school official testified, or if more pointed questions were asked of the officer, it appears that the element could have been established. Because this was not done, we are constrained to reverse the conviction.
The judgment as to distribution is affirmed. As to the school zone violation, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
Given the nature of the sentences,
The defendant claims that the prosecutor improperly referred to Wilner as a “crack head” in her closing argument. Even if we were to agree, which we need not decide, the phrase was harmless, especially in light of the judge's instructions to the jury. See Commonwealth v. Mitchell, 428 Mass. 852, 857–858 (1999).
the matter is remanded for clarification or correction and possible resentencing, on which we intimate no view whatsoever, on the remaining count.
The docket reads that the defendant received a two and one-half year sentence on the school zone count followed by a two and one-half year on-and-after sentence on the distribution count. Although unclear given that part of the transcript states “inaudible,” it appears that the sentence on the school zone count was the one that was on and after. The docket therefore may be in need of correction.
So ordered.