Opinion
14-P-389
07-30-2015
COMMONWEALTH v. NORMAN DEGRAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with two counts of possession of a class B substance with intent to distribute, one count relating to cocaine and a second relating to ecstasy, and one count of possession of a class D substance, marijuana. When arrested in 2006, the defendant was in the front passenger seat of a car pulled over for driving without visible rear lights. When an officer approached the car he smelled a strong scent of marijuana. In the trunk of the car the police found a soup can with a false bottom, a container filled with a green leafy substance which turned out to be marijuana, and fourteen pills that turned out to be ecstasy. Inside the car two burnt cigarettes, later tested and determined to contain marijuana, were found in the ashtray. The driver of the car stated that all three people in the car had been smoking marijuana, and an officer saw marijuana in the defendant's lap. The false bottom soup can contained eight bags of cocaine. All of the drugs that were found were tested by the State laboratory and certificates of analyses were introduced at trial relating to all the drugs found in the various locations.
Prior to trial the drugs were destroyed by the Commonwealth. In a motion to dismiss, the defendant argued to the court below that the drugs, the soup can, and the plastic container holding marijuana were potentially exculpatory and material to his defense. He argued below that he would have tested the soup can, the container in which the marijuana was found, and the marijuana cigarettes for fingerprints and, with respect to the latter, for deoxyribonucleic acid (DNA), in order to adequately defend himself.
The judge determined that the defendant had met his threshold burden in establishing the soup can's exculpatory nature. The judge declined to dismiss any of the counts of the indictment, but because the defendant was unable to test the soup can for fingerprints or DNA, the judge granted his relief requested in the alternative and suppressed any evidence relating to the soup can; however, the judge suppressed none of the other evidence, and allowed evidence of the cocaine found within the soup can. The defendant was acquitted of the charges with respect to the cocaine and the ecstasy, found in the trunk, and was convicted only of simple possession of marijuana. It is the evidence relevant to that conviction that we must address.
We conclude that the reasoning of the judge with respect to the soup can was correct, and was equally applicable to both the plastic container that held the marijuana, and to the burnt marijuana cigarettes found in the ashtray. We conclude by a parity of reasoning that any evidence regarding either the plastic container or the burnt marijuana cigarettes should not have been admitted.
The question then is one of remedy. Since the drugs in the container were admissible on the same basis as the cocaine in the soup can -- there was no reason to believe there would be any evidence of DNA or fingerprints on the drugs inside a container -- we see no potential prejudice to the defendant from the failure to prevent the admission of evidence about the container.
The failure to suppress the marijuana cigarettes, however, stands on a different footing. As the case was tried, the jury could have found the defendant guilty of (a) possession of the marijuana in those cigarettes (or the marijuana that had been smoked), (b) possession of marijuana from the container in the trunk of the car, or (c) possession of both. We cannot know which of the three the jury verdict represents.
To be sure, because of the marijuana in the trunk, even without the marijuana cigarettes, there was sufficient evidence to support the defendant's conviction. Since, however, the conviction may rest upon possession of the marijuana cigarettes alone we must vacate the conviction for simple possession of a class D substance, and remand for a new trial without introduction of evidence of the burnt marijuana cigarettes.
Judgment vacated.
Verdict set aside.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 30, 2015.