Opinion
10-P-1403
10-31-2011
COMMONWEALTH v. MANLEY JULES.
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 firearm, ammunition, and drug charges.
1. The school zone drug violation. We reject the defendant's contention that Donna Cabral's testimony violates his right to confrontation under the Sixth Amendment to the United States Constitution. Cabral testified that she is the preschool director for Community Action Agency of Somerville (CAA), which oversees the Headstart program for 355 children in Somerville and Cambridge. Among the facilities she supervises is the Jefferson Park preschool in Cambridge which provides day care and educational services to fifty-four children ages three to five. She stated that her job responsibilities include ascertaining that each school operating under the auspices of CAA is 'licensed, accredited by the State and . . . nationally accredited.' She also testified that Jefferson Park was licensed in March, 2008, by the Massachusetts Department of Education, and accredited in the State and nationally.
Although it is unclear from the record whether Jefferson Park is public rather than private, to the extent that it were public, proof of its accredited status would not be required. See Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325 (2008) (proof of accreditation not required for public preschool or Headstart facility).
We discern neither a hearsay nor confrontation problem in Cabral's testimony regarding Jefferson Park's accreditation. The fact that it had been awarded accreditation was from her personal knowledge, within the ambit of her job responsibilities, and subject to confrontation and cross-examination by the defendant. See Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 730 n.1 (1992). The Commonwealth was not required to provide testimony from an authorized representative of the accrediting agency as to the awarding of accreditation.
2. Second Amendment challenges. The defendant's Second Amendment challenge to the constitutionality of the gun and ammunition statutes is controlled by Commonwealth v. Powell, 459 Mass. 572, 589-590 (2011). The defendant's failure to apply for a firearms identification (FID) card is fatal to his claim that G. L. c. 269, § 10(h)(1), is unconstitutional and that his firearm and ammunition convictions must be reversed. See ibid. See also Commonwealth v. Loadholt, 460 Mass. 723, 725-737 (2011).
Commonwealth v. Powell, supra, also disposes of the challenge to G. L. c. 278, § 7. Powell holds that the statutory burden on a defendant to come forward with evidence of license is not unconstitutional. See id. at 582. See also Loadholt, supra at 726-727 (nothing in McDonald v. Chicago, 130 S. Ct. 3020 [2010], and District of Columbia v. Heller, 554 U.S. 570 [2008], has altered or abrogated the state of the law concerning the statutory presumption set forth in G. L. c. 278, § 7).
3. Instruction on a lesser included offense. The judge did not err in denying the defendant's request for an instruction on
possession of marijuana as a lesser included offense of possession of marijuana with intent to distribute. Such an instruction should be given when the evidence at trial presents 'a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.' See Commonwealth v. Donlan, 436 Mass. 329, 335 (2002). On the evidence here, the jury could not rationally have acquitted the defendant of possession with intent to distribute marijuana, but found him guilty of mere possession. See ibid.
From various locations inside the apartment, the police seized approximately seven pounds of marijuana worth between $10,000 and $20,0000. Next to the couch was a one gallon-size Ziploc bag with six to seven ounces of marijuana; in the kitchen, three heat sealed plastic bags of marijuana, each containing several ounces of individually packaged bags of marijuana; in the pantry, six plastic bags each containing up to a pound of marijuana; and in the hallway, bedroom, and a back hall, several more bags containing up to one-half pound of marijuana. Detective Louis Cherubino, Jr. provided expert testimony that the marijuana seized was more consistent with distribution than with personal use. He also opined as to the unlikelihood that an individual could personally ingest over seven pounds of marijuana.
Based upon the quantity, packaging, and value of the marijuana, as well as the defendant's chosen defense that none of the marijuana was his, there was no rational basis for a jury to conclude that he possessed the marijuana for personal use rather than for distribution. See Commonwealth v. Scala, 380 Mass. 500, 511 (1980); Commonwealth v. Wilson, 52 Mass. App. Ct. 411, 419 (2001). The discovery of a water bong and a 'roach' elsewhere in the apartment did not place the elements differentiating the greater and lesser offenses sufficiently in dispute so as to require giving a lesser included offense instruction. See ibid.
4. Voluntariness of the defendant's statements. The judge did not err in concluding that the defendant's statements made to the police while undergoing hospital treatment were voluntary beyond a reasonable doubt. During his brief interviews with Sergeant McHale and Sergeant Boyle in the presence of hospital staff, the defendant was alert, lucid, and answered questions appropriately before expressing an unwillingness to answer any further questions. See Commonwealth v. Clark, 432 Mass. 1, 12-13 (2000).
The defendant concedes that the judge provided a proper humane practice instruction to the jury.
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5. Sufficiency of the evidence of possession. The Commonwealth presented ample evidence that the defendant had the requisite knowledge, ability, and intention to exercise control to establish that he constructively possessed the contraband. See Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41-42 (2010). Beyond the defendant's admissions to the police that he lived at the apartment, the Commonwealth also introduced evidence from the defendant's friend and landlord that he lived there alone and paid rent for the premises. The Commonwealth also introduced other items connecting the defendant to the premises including men's clothing, an electric bill addressed to him there, a recent check in the amount of $1,400 payable to the defendant's business, 'Hard Shell Entertainment,' and a refrigerator magnet bearing the 'Hard Shell Entertainment' logo.
Judgments affirmed.
By the Court (Rapoza, C.J., Grasso & Kantrowitz, JJ.),