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Commonwealth v. Driscoll

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 4, 2012
10-P-1956 (Mass. App. Ct. Jun. 4, 2012)

Opinion

10-P-1956

06-04-2012

COMMONWEALTH v. SEAN DRISCOLL.


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

We affirm the defendant's convictions of breaking and entering in the nighttime with intent to commit a felony, possession of hydrocodone with intent to distribute, and larceny of a drug.

1. Motion to suppress. Viewed together, and not in isolation, the facts found by the motion judge establish that Woburn police Officer Brian McManus possessed the requisite reasonable suspicion when he stopped the defendant and Ryan Arthur by activating the overhead blue lights on the police cruiser. See Commonwealth v. Sykes, 449 Mass. 308, 314 (2007). The time of night, the location, the absence of other cars or people in the vicinity, the observation of two men walking from an alley adjacent to a drug store known for prior breaks, their quick disappearance, the location of the white Cadillac parked nearby at a closed school, its hasty departure when McManus illuminated it, the discovery of the same men and the same Cadillac moments later in the nearby cul-de-sac, and Arthur's having shed his sweatshirt in favor of a T-shirt on a winter's night all served to create a reasonable suspicion that a crime had been or was about to be committed. See Commonwealth v. Isaiah I., 450 Mass. 818, 823 (2008). 2. Sufficiency of the evidence. At trial, the Commonwealth established that shortly before McManus encountered the defendant and Arthur in Woburn, there had been a break at a drug store in nearby Winchester. A large plate-glass window had been broken and a number of large, labeled, wholesale-sized bottles of hydrocodone had been stolen. In the vicinity of the snow bank where Arthur was observed by McManus, the police recovered a cellular telephone containing a picture of Arthur and a small child, a mesh laundry bag containing eight large wholesale-sized bottles labeled as hydrocodone, with folded drug instruction sheets affixed to the top of each bottle but one, and shards of glass. Inside the Cadillac, the police discovered a shard of glass on the passenger side, a folded drug instruction sheet with adhesive still on the label, pairs of gloves, and two fully charged walkie-talkies set to the same channel.

The defendant challenges only the lawfulness of the initial stop.

The defendant's and Arthur's conflicting explanations for their attempts to elude detection by McManus also provided evidence of consciousness of guilt.

The bottles, some of which were opened, bore a Winchester Drug Store 'SKU' sticker and contained between 100 and 1,000 tablets each. As related below, Sydna Anderson, the store manager, identified the bottles as coming from Winchester Drug Store.

Shards of glass were also embedded in the soles of Arthur's shoes.

(i) Joint venture. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence sufficed to establish that the defendant was a joint venturer with Arthur in the break into the Winchester Drug Store and theft of hydrocodone. See Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009); Commonwealth v. Batista, 53 Mass. App. Ct. 642, 646 (2002). See Commonwealth's brief at 24-27. Likewise, the evidence sufficed to establish that the defendant had the knowledge, ability, and intention to exercise dominion and control over the drugs that Arthur placed in the snow bank. See Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004). See Commonwealth's brief at 28-30.

(ii) The controlled substance hydrocodone. Expert testimony is not required to establish the nature of the substance in the wholesale-sized bottles labeled 'hydrocodone.' Such proof may also be had by circumstantial evidence. See Commonwealth v. MacDonald, 459 Mass. 148, 154 (2011); United States v. Harrell, 737 F.2d 971, 978-979 (11th Cir. 1984), cert. denied, 469 U.S. 1164, and cert. denied, 470 U.S. 1027 (1985). Sydna Anderson, the manager of Winchester Drug Store, identified the bottles of hydrocodone pills as those stolen from the store earlier that night. The bottles, which were labeled as 'hydrocodone bitartrate and acetaminophen' and had pharmacist's instructions affixed to the top, were those used by the pharmacy to fill prescriptions for hydrocodone in the ordinary course of its business. Anderson related the practice routinely followed and relied upon by the drug store of ordering hydrocodone from a drug wholesaler and filling customer prescriptions for hydrocodone in reliance on the representations from the drug's manufacturer and wholesaler that the substance labeled 'hydrocodone' is, in fact, hydrocodone. See G. L. c. 233, § 78. See also Commonwealth v. Clark, 363 Mass. 467, 471 (1973) (labels and brand names have been admissible to prove resident port of ship, source of beer in barrel, and contents of boxes and packages); Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 314-315 (2002); Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 167 (2003) (pragmatic test of reliability permits introduction of records containing second level hearsay of a nature routinely relied upon by professionals in field). This evidence, and the reasonable inferences therefrom, sufficed to permit the jury to conclude beyond a reasonable doubt that the pills in the bottles labeled 'hydrocodone' were in fact hydrocodone. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). Nothing in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), renders documentary evidence such as this 'testimonial.'

Besides the store's 'SKU,' the opened bottles were marked with an 'X' as was the store's practice.

(iii) Intent to distribute. The theft of several very large wholesale-sized bottles, each containing hundreds (and as many as one thousand) hydrocodone pills, sufficed to establish that the defendant possessed the pills with the intent to distribute them. See Commonwealth v. Roman, 414 Mass. 642, 645-646 (1993).

The Commonwealth presented expert testimony that a thirty-day prescription supply of hydrocodone would amount to a maximum of 240 pills.
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(iv) Larceny of a drug. Anderson, who had managed the drug store for the past ten years, testified that the store is required to register once per year in order to maintain its license to dispense drugs and that she is the person responsible for ensuring that the store's registrations with the 'Board of Pharmacy and DEA' are in order. While the prosecutor did not ask her specifically if the store was registered on the date in question, the evidence sufficed for the jury reasonably to infer this to be the case, especially where there was no indication to the contrary.

Judgments affirmed.

By the Court (Cypher, Grasso & Sikora, JJ.),


Summaries of

Commonwealth v. Driscoll

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 4, 2012
10-P-1956 (Mass. App. Ct. Jun. 4, 2012)
Case details for

Commonwealth v. Driscoll

Case Details

Full title:COMMONWEALTH v. SEAN DRISCOLL.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 4, 2012

Citations

10-P-1956 (Mass. App. Ct. Jun. 4, 2012)