Opinion
No. 10–P–676.
2012-06-12
COMMONWEALTH v. Joseph E. LAWSON.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 24, 2006, the defendant was charged in a two-count indictment with: (1) trafficking in oxycodone with a weight of over twenty-eight grams but less than one hundred grams, and (2) committing a drug violation in a school zone. He filed a motion to suppress that was denied following a hearing. The case proceeded to trial before a jury. At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty on count two, the school zone violation. The jury convicted the defendant on the other count, trafficking in oxycodone.
On appeal, the defendant claims that the judge committed error in: (1) denying the suppression motion, (2) allowing the Commonwealth to present expert testimony, (3) denying the motion for required finding of not guilty, (4) failing to instruct the jury on the lesser included offense of possession, and (5) denying the defendant's motion for a new trial. We affirm.
1. Denial of suppression motion. After an evidentiary hearing, the judge made the following findings. Mark White, a special agent with the Federal Bureau of Alcohol, Tobacco, and Firearms, had been working with a confidential informant for a number of years. The informant had given White information on several occasions which resulted in various arrests and seizures of evidence.
In late November of 2005, the informant identified the defendant as a drug dealer. He told White that the defendant was going to purchase a quantity of oxycodone on the North Shore. He would be driving a green pickup truck with a sign depicting a tree on the side. The informant had obtained this information as a result of a face-to-face meeting with the defendant. As a result of the information, the police conducted a surveillance of Route 3 during which they saw the pickup truck, but did not see any sign on the door. After the surveillance, the police observed the truck that they had seen on Route 3 in the defendant's driveway. They noted that the truck had the tree sign only on one door, the door that was not visible to them during the surveillance.
On January 23, 2006, the informant told White that the defendant intended to make another trip to the North Shore to purchase oxycodone, and would be returning to the Plymouth area with the drugs. The informant called White a second time and stated that the defendant would be returning to the Plymouth area between 3:00 P.M . and 4:30 P.M. The police established a surveillance on the southbound side of Route 3. At about 3:50 P. M., one of the officers had to break off the surveillance and return to the police station. While on Route 3A, the officer saw the pickup truck. It pulled into a gas station where the officer kept it under surveillance. When the pickup truck left the station, the officer followed and activated his vehicle's lights and siren. The truck did not stop, even after it was blocked by another police cruiser. The driver of the truck tried to go around the cruiser, but could not. He then tried to reverse, and crashed into the police vehicle behind him.
The defendant was a passenger in the vehicle. He was searched and nearly $3,000 in cash was removed from his pockets. The police also observed a bulge in the inner thigh area of the defendant's pants. When an officer touched the area, the bulge moved. The officer reached up and removed a napkin covering a plastic bag in which there were 169 eighty-milligram oxycodone pills.
The motion judge ruled that the information provided by the informant, corroborated by the subsequent police investigation and the officers' observations made on January 23, 2006, established reasonable suspicion that the defendant was engaged in unlawful drug activity. The police were thus allowed to stop the vehicle, at least for the purpose of determining that the defendant was an occupant of the truck. When the truck failed to stop, and, in fact, tried to escape, the reasonable suspicion escalated into probable cause to search the vehicle. Commonwealth v. Sinforoso, 434 Mass. 320, 324, 325 (2001). The judge further ruled that the evidence furnishing probable cause warranted the police to order the defendant and his companion to exit the vehicle and also allowed the police to search the defendant and the vehicle.
When an informant's tip is relied on by the police as the basis for a stop of a vehicle, the Commonwealth must demonstrate the informant's basis of knowledge, and also sufficient indicia of the informant's reliability or veracity. Commonwealth v. Cast, 407 Mass. 891, 896 (1990). Here, the defendant concedes that the informant's reliability was established, but argues that the evidence was lacking as to the basis of knowledge prong.
The judge's ultimate findings are entitled to substantial deference, and we accept his subsidiary findings where they are not clearly erroneous. See Commonwealth v. Hilton, 450 Mass. 173, 177–178 (2007). Here, the judge's finding that the informant's basis of knowledge came from the defendant himself was clearly supported by the evidence. The judge did not commit error in denying the defendant's suppression motion.
2. Expert testimony. The defendant claims that the trial judge committed error in allowing a police officer to testify about the method and patterns of oxycodone distribution in the South Shore communities of Plymouth County. At trial, the defendant challenged the witness's qualification to give such testimony. After a hearing, the judge overruled the defendant's objection, and allowed the witness to testify.
“ ‘The critical issue’ in determining whether a witness is qualified to give an expert opinion, ‘is whether the witness has sufficient “education, training, experience and familiarity” with the subject matter of his testimony.’ “ Commonwealth v. Rice, 441 Mass. 291, 298 (2004), quoting from Commonwealth v. Richardson, 423 Mass. 180, 183 (1996), quoting from McLaughlin v.. Selectmen of Amherst, 422 Mass. 359, 362 (1996). “A judge has wide discretion in qualifying a witness to offer an expert opinion on a particular question ... and his determination will not be upset on appeal if any reasonable basis appears for it.” Commonwealth v. Avila, 454 Mass. 744, 764 (2009) (citations omitted).
The defendant claims that the witness lacked experience and training in regard to pharmaceutical drugs, and had no training in the area of toxicology, pharmacology, or use of pharmaceutical medications. The witness's testimony, however, was on general methods of drug distribution, especially oxycodone, and not on the subjects suggested by the defendant. The judge found that the witness had received specialized training on the topic of general narcotics distribution, and specifically on distribution of oxycodone. Further, the witness had participated in over 100 investigations of drug distribution. Therefore, there was ample evidence to support the judge's ruling that the witness was indeed qualified to testify as to distribution of oxycodone in the South Shore.
3. Denial of motion for required finding of not guilty. The defendant claims that the judge committed error in denying his motion for a required finding of not guilty. He argues that the evidence was insufficient to prove his intent to distribute oxycodone.
“[W]e must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged....” Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). “[T]he evidence and the inferences permitted to be drawn therefrom must be ‘of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.’ “ Commonwealth v. Latimore, supra at 677, quoting from Commonwealth v. Cooper, 264 Mass. 368, 373 (1928). “A reasonable person is expected to use common sense and rely on what he or she has learned from experience.” Commonwealth v. Roman, 414 Mass. 642, 648 (1993).
“A person's ... intent ... is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had, and frequently is had, to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Ellis, 356 Mass. 574, 578–579 (1970).
“Possession of a large quantity of an illicit narcotic raises an inference of intent to distribute.” Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758 (1984). See Commonwealth v. Rugaber, 369 Mass. 765 (1976) (among other drugs, 100 LSD tablets were found, and, as in this case, were not packaged in smaller amounts). In addition to such a high quantity, it is also important to determine whether the quantity seized has a “considerable” street value. Commonwealth v. Sendele, supra. “Standing alone, the amount or value might perhaps not justify the inference....” Ibid. “In many cases concerned with the sufficiency of evidence to support a finding beyond a reasonable doubt of the possession of illegal drugs with intent to distribute, the Commonwealth had other supporting evidence.” Commonwealth v. Roman, 414 Mass. at 645. Supporting evidence can include large amounts of cash and the behavior of the defendant, among many other things. Ibid.
In this matter, the jury could have found that the defendant was in possession of a “high quantity” of narcotics that had a “considerable” street value of roughly $7,000–$13,000. The defendant was also in possession of a “large amount of cash”—determined to be $2,792. The jurors were also entitled to consider the defendant's behavior at the time of the stop. Not only did the driver of the truck attempt to evade the police, he even crashed into a police vehicle in the process. Once the police began to search the two men and the car, the defendant was found with the pills wrapped up and put down his pants. The jurors can infer that he was attempting to conceal the narcotics. Taking this evidence together, the jury properly could have found that the defendant had the intent to distribute.
4. Failure to give instruction on lesser included offense of possession. The defendant claims that the judge committed error when he refused to give the jury an instruction on the lesser included offense of possession.
“As a general rule, the jury should receive an instruction on a particular offense where (1) the offense is, as a matter of law, a lesser included offense of the crime charged; and (2) the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.” Commonwealth v. Wilson, 52 Mass.App.Ct. 411, 418–419 (2001), quoting from Commonwealth v. Souza, 428 Mass. 478, 493–494 (1998).
The defendant employed an all or nothing strategy at trial. He denied having any knowledge of or intent to either possess or distribute the oxycodone pills. As noted, the defendant was found with 169 pills concealed in his pants, which had a street value in the area of $7,000 to $13,000. A large sum of money was also found in his possession. This evidence provided no rational basis for a simple possession instruction.
5. Denial of motion for a new trial. The defendant filed a motion for a new trial claiming that the Commonwealth failed to provide exculpatory evidence, and that the jury, after requesting clarity in the issue of specific intent, reached a verdict after being advised they would not be reinstructed until the following day. The defendant thus claims that the verdict was “rushed.”
For the reasons stated in the judge's memorandum of decision, and the Commonwealth's brief, in particular pages 38 to 44, we hold there was no error in the judge denying the motion on the exculpatory evidence claim.
We also deny the defendant's claim that the verdict was rushed for the reasons stated in the Commonwealth's brief, pages 44–46.
Judgment affirmed.
Order denying motion for new trial affirmed.