Opinion
14-P-1432
10-07-2015
COMMONWEALTH v. FRANCIS FRISINO.
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 appeals from his convictions of possession of heroin and possession of cocaine, arguing that the trial judge's instructions to the jury were erroneous and warrant reversal. We affirm.
Background. The facts that give rise to this appeal are not in dispute. On the evening of March 7, 2013, South Hadley police Officer Mark Dominick stopped a vehicle occupied by four people. After seeing the occupants moving around, Officer Dominick became concerned for his safety and called for assistance. South Hadley police Officer Barry O'Connor arrived, and the four occupants were removed from the vehicle. The defendant was removed from the front passenger seat. When asked if he had anything on his person that would be of concern to the officers, the defendant replied that he had a crack pipe. Officer O'Connor recovered the crack pipe, and also found a white wax paper package in the upper front pocket of the defendant's shirt. The package was consistent with packaging used for heroin. The officer was able to see powder in the package. The defendant denied ownership of the package and stated that he only smoked crack cocaine. The police found three more crack pipes in the vehicle, as well as six full glassine packets held together with a rubber band between the driver's seat and the center console and six "blow-out[]" bags on the rear floor of the vehicle. Officer Dominick testified that the six "blow-out[]" bags contained crack cocaine residue. The two items seized from the defendant were analyzed by a chemist; the residue found in the pipe tested positive for cocaine and a portion of the powder taken from the glassine packet was analyzed and found to contain heroin.
The propriety of the stop and search are not contested.
Officer Dominick testified that "blow-outs" are "corner packets of plastic baggies, typical of the delivery of crack cocaine."
After the close of evidence, the defendant moved for a required finding of not guilty on the charge of possessing cocaine on the basis that the Commonwealth had failed to prove that the defendant possessed a "perceptible amount" of the substance. After that motion was denied, defense counsel argued to the jury that the defendant should be found not guilty of possessing cocaine or possessing heroin because the Commonwealth failed to prove that he possessed a "perceptible amount" of either controlled substance. The judge instructed the jury that, in order to convict, they must find beyond a reasonable doubt that the defendant possessed a certain substance, that the substance was a controlled substance, and that the defendant possessed the substance knowingly or intentionally. The defendant did not ask the judge to instruct the jury that they must find the defendant possessed a "perceptible amount," and he did not object to the instructions as given.
Discussion. The defendant's sole contention on appeal is that he was denied a fair trial and due process of law because the judge failed to give the District Court model jury instruction on possession of a controlled substance. The instruction requires the Commonwealth to prove as an element "[t]hat the defendant possessed some perceptible amount of [the controlled] substance." Instruction 7.820 of the Criminal Model Jury Instructions for Use in the District Court (Mass. Continuing Legal Educ. 3d ed. 2009). "As counsel did not object to the instructions at trial, we review to determine whether there was a 'substantial risk of a miscarriage of justice.'" Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 594 (2007), quoting from Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001).
We see no such risk here. First, the defendant was tried in Superior Court and not District Court. As the Criminal Model Jury Instructions for Use in the District Court are not "binding law," Commonwealth v. Quinn, 439 Mass. 492, 500 n.14 (2003), the judge was not required to utilize them in her instructions.
In any event, the judge's instructions were consistent with Massachusetts Superior Court Criminal Practice Jury Instructions § 4.19.4, at 4-144 (Mass. Continuing Legal Educ. 2d ed. 2013), which states that "[i]t is unlawful for a person to have in his or her possession any controlled substance . . . without a valid prescription." The instruction continues, "If the Commonwealth . . . does prove beyond a reasonable doubt that the defendant knowingly or intentionally possessed some measurable amount of [the controlled] (substance), then you shall find the defendant guilty of possession of [the controlled] (substance)." While the judge's instructions did not include the "some measurable amount" language, we do not see how it would be logically possible for the jury to have convicted the defendant of possessing cocaine if they found that there was no cocaine present.
Second, the defendant was accused of violating G. L. c. 94C, § 34, inserted by St. 1971, c. 1071, § 1, pursuant to which "[n]o person knowingly or intentionally shall possess a controlled substance." The statute does not require that a defendant possess a certain amount of a controlled substance. If "[t]he Legislature has imposed no minimum quantity requirement in § 32A(a) (possession with intent to distribute)," Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 428 n.2 (1985), we will not read such a requirement into the statute prohibiting simple possession. See Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct. for the County of Worcester, 446 Mass. 123, 126 (2006) ("We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include"). The judge's charge was an appropriate statement of the elements that the Commonwealth needed to prove beyond a reasonable doubt. "There was no error." Commonwealth v. Pero, 402 Mass. 476, 481 (1988).
Judgments affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 7, 2015.