Opinion
Nos. 15–P–723 15–P–724.
10-14-2016
COMMONWEALTH v. Anthony STALLWORTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Anthony Stallworth, appeals from his convictions of possession with intent to distribute a class B substance, in violation of G.L. c. 94C, § 32A(a), distribution of a class B substance, in violation of G.L. c. 94C, § 32A(a), and making a false statement on an application for a health care benefit, in violation of G.L. c. 175H, § 2. The defendant's challenges on appeal were not raised below and are brought under the “substantial risk of a miscarriage of justice” standard of review pursuant to Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). We affirm.
The charges on which the defendant was convicted arose out of two separate sets of indictments. The appeals from the convictions arising out of indictments no. NOCR10–0989–001— NOCR10–0989–004 (drug charges) were filed in this court as docket no. 15–P–723; the appeal from the conviction arising out of indictment no. NOCR10–1042–004 (false statement on application for health care benefit charge) was filed as docket no. 15–P–724. On the defendant's motion, we allowed the “appeals [to] be considered by the same panel.”
Background. We summarize the facts the jury could have found, in the light most favorable to the Commonwealth, reserving certain facts for later discussion. Commonwealth v. Miranda, 441 Mass. 783, 784 (2004).
On January 6, 2010, Special Agent Paul Gazzara called the defendant and asked to purchase twenty oxycodone pills. Gazzara then met the defendant at 8 West Leonard Street in Foxborough (house), where the defendant and Gazzara negotiated a sale of twenty-one pills for $550. About a week later, the defendant called Gazzara and told him that he had fifteen pills to sell. The sale took place at the house. Shannon Stallworth (Shannon), the defendant's wife, and Rodney Scott were also present at the time of sale.
We use her first name to avoid confusion.
On February 3, 2010, the defendant called Gazzara to initiate another sale (third sale). While on his way to see the defendant, Gazzara stopped at a gas station and told the defendant that he would meet him at a nearby Dunkin' Donuts because his vehicle had broken down. The defendant declined to leave his house and, instead, instructed Scott to pick up Gazzara and bring him to the house.
When Gazzara arrived at the house, the defendant asked him to swallow two pills. Gazzara refused and told Scott to take him back to the Dunkin' Donuts. He then waited at the Dunkin' Donuts for approximately thirty to thirty-five minutes to see if the defendant would change his mind. Scott returned, driven by Shannon, and asked Gazzara why he refused to swallow the pills. Gazzara responded that he did not use drugs but, instead, sold them to make a profit. Both Scott and Gazzara then proceeded into the Dunkin' Donuts bathroom, where Scott handed Gazzara an amber-colored prescription bottle with 115 pills in exchange for $3,000. The police then arrested Scott and Shannon.
The defendant was also arrested and brought to Foxborough police station, where he was interviewed by Agent Rick Walford. The defendant told Walford that Scott had stolen some pills from him and sold them to Gazzara. When Walford asked the defendant how Scott would know that Gazzara wanted to purchase pills, the defendant gave an account of how Scott drove Gazzara to the house after his car broke down. The defendant explained to Walford that he realized his pills were stolen after Scott and Gazzara left after Gazzara refused the defendant's request to swallow two pills. The defendant further stated that he and Scott had been “friends for three to four years” and that he first met Scott “when he[, the defendant,] sold him[, Scott,] pills.” The defendant told Walford that he sold his pills for a dollar a milligram and that “he would sell half of his prescription” every month.
The defendant was also given his Miranda rights.
During a search of the house, pills and a pill container were found stored in a safe in the master bedroom. These pills, as well as the drugs from the third sale, were originally submitted to the Hinton drug laboratory (Hinton drug lab). Annie Dookhan, who was under investigation for improprieties at the Hinton drug lab, signed off as one of the original chemists on the drug certificate for the pills recovered from the third sale. Both sets of pills were resubmitted to Kimberly Dunlap, a chemist with the Massachusetts State police crime laboratory, for retesting. She found that the pills from the third sale and those found in the safe contained oxycodone.
The pills found in the safe consisted of forty-milligram oxycodone pills and twenty-milligram oxycodone pills.
Rebecca Pontes, a chemist with the Massachusetts State police crime laboratory, tested pills retrieved from the first and second sales and found that those tablets also contained oxycodone.
Discussion. 1. Sufficiency of evidence to show intent to distribute. The defendant argues that there was insufficient evidence for the jury to find that the defendant possessed the oxycodone pills found in his safe with the intent to distribute. The defendant contends that based on his admission that he sold half of his monthly prescription of oxycodone, “[t]he jury would have had to speculate that the pills were possessed for distribution rather than personal use, based on a 50 percent chance.”
On review, “we consider whether, viewing the evidence in the light most favorable to the Commonwealth, a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Millien, 474 Mass. 417, 441 (2016). At trial, Walford testified that the defendant admitted to selling half of his prescription of oxycodone every month. Although other inferences could be drawn from the defendant's admission, “an inference drawn from circumstantial evidence ... need not be necessary or inescapable.” Commonwealth v. White, 452 Mass. 133, 136 (2008) (quotation omitted). Instead, such an inference “need only be reasonable and possible.” Ibid. The jury were also presented with evidence that the defendant told Walford that he had been selling his prescription pills for a dollar a milligram and that the defendant intended to sell $3,000 worth of oxycodone pills to Gazzara. There was also evidence that the defendant actively engaged in transactions with Gazzara by negotiating the price and number of oxycodone pills that he was willing to sell. Further, the defendant stored over fifty twenty-milligram and forty-milligram strength oxycodone pills in a safe in his bedroom, rather than in a medicine cabinet or pill box. Therefore, in light of all the evidence at trial, we conclude that it was reasonable and possible for the jury to have found that the defendant possessed the oxycodone pills with the intent to distribute, rather than for personal use. See ibid.
2. Sufficiency of evidence to identify drugs in third sale. The defendant argues that there was a break in the chain of custody with regard to the drugs from the third sale because the original chemist, Dookhan, did not testify at trial. He further contends that this weakness goes to the admissibility of the evidence rather than the weight of the evidence.
“[W]here Dookhan signed the certificate of drug analysis as either the primary or secondary chemist in the defendant's case, the defendant is entitled to a conclusive presumption that Dookhan's misconduct occurred in his case, that it was egregious, and that it is attributable to the Commonwealth.” Commonwealth v. Scott, 467 Mass. 336, 338 (2014). However, this conclusive presumption does “not apply in a trial in which the defendant seeks to impeach the testing process utilized at the Hinton drug lab.” Id. at 354. The defendant raises essentially the same claim we have previously rejected in Commonwealth v. Curry, 88 Mass.App.Ct. 61, 65 (2015) (asserting chain of custody issue based on Dookhan's misconduct). As in Curry, there was no evidence presented at trial to suggest that Dookhan mixed substances or made any alterations to the samples originally submitted to her. See id. at 65. Furthermore, the samples from the third sale, originally submitted to Dookhan, were resubmitted for retesting to another chemist, who found that the pills contained oxycodone. The jury were entitled to credit this evidence and conclude that there was no improper break in the chain of custody. See ibid.
Even assuming that there is a weakness in the chain of custody, such frailty “goes to the weight, not admissibility, of the drug evidence.” Ibid. See Commonwealth v. Colon, 33 Mass.App.Ct. 304, 309 (1992). The defendant argues that this is an unusual “case in which the integrity of the laboratory is undermined in a way that should prohibit admissibility of the drug evidence.” However, the authority cited by the defendant is unpersuasive. In State v. Roche, 114 Wash.App. 424, 437 (2002), the drug substances submitted in evidence were analyzed by a chemist who was determined to have committed misconduct and whose “credibility was totally devastated” by that misconduct. Here, Dookhan was not a witness at trial, and the chemist who testified to the drugs' lab analysis did not commit malfeasance. Also, the pills from the third sale were resubmitted for retesting and determined to contain oxycodone. We therefore conclude that any arguable weakness goes to the weight of the evidence. See Colon, 33 Mass.App.Ct. at 309.
3. Prosecutor's closing argument. The defendant argues that the prosecutor's closing argument improperly referenced prior drug sales allegedly committed by the defendant because those prior bad acts were too old to be logically probative. This court considers the prosecutor's statements “in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.” Commonwealth v. Francis, 450 Mass. 132, 140 (2007).
“[T]he prosecution may not introduce evidence that a defendant previously has misbehaved ... for the purposes of showing his bad character or propensity to commit the crime charged.” Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). To be admissible, the evidence must have “some other probative purpose, including to show intent, motive, state of mind, or some other relevant issue at trial.” Robidoux, supra. Additionally, the probative value of the evidence must not be “substantially outweighed by any prejudice to the defendant.” Ibid.
Here, the prosecutor's statement was proper as probative of the defendant's intent to have Scott make the third sale of oxycodone pills on his behalf. The jury heard testimony that the defendant met Scott when the defendant sold him pills three or four years earlier. There was also testimony that the defendant did not intend to make the third sale, but instead, that Scott had stolen the pills from the defendant to sell to Gazzara. Therefore, the defendant's intent to have Scott make the third sale was directly at issue. The prosecutor's reference to the defendant's drug sales to Scott three or four years earlier was not only probative of the defendant's relationship with Scott, but also rendered the defendant's intent to use Scott to complete the third sale more probable. Further, the judge mitigated any prejudice by providing a limiting instruction to the jury that the evidence on which the prosecutor's statement was based “doesn't prove anything about the [alleged] sale in ... these indictments,” but goes to “issues concerning the [defendant's] state of mind” and “intent.” See Commonwealth v. Dung Van Tran, 463 Mass. 8, 15 (2012).
The prosecutor stated in his closing argument:
“[The defendant] admits that he sells half of [his pills], and admits that he had been doing so for anywhere from 18 months to a number of years. I suggest to you ...—what did [the defendant] tell Agent Walford about [Scott]? He told him that he met him three o[r] four years ago when he sold him pills. So, even though [the defendant] gave varying accounts for how long he had actually been selling, ... the answer that's most favorable to him is 18 months.”
4. Form of the indictment. The defendant argues that the indictment charging him with a false health care claim under G.L. c. 175H, § 2, was defective and failed to provide him with fair notice under art. 12 of the Massachusetts Declaration of Rights because the Commonwealth did not identify which of the five alternative subsections of the statute the defendant was charged with. “Due process under art. 12 requires that an indictment provide a defendant with fair notice of the crime with which he is charged.” Commonwealth v. Canty, 466 Mass. 535, 547 (2012).
An indictment, however, “need not contain reference to the particular subsection or theory of culpability with which the defendant is being charged.” Commonwealth v. Sullivan, 82 Mass.App.Ct. 293, 298 (2012). Instead, the indictment “need only ‘contain a caption as provided by law, together with a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.’ “ Canty, 466 Mass. at 547, quoting from Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). The indictment provided to the defendant stated that the defendant was charged with “knowingly and willfully mak[ing] ... a false ... claim for a health care benefit” and plainly referred to “G.L. c. 175H, § 2,” as the statute allegedly violated by the defendant. The defendant also waived any objection he had to the form of the indictment by failing to file a motion to dismiss or request a bill of particulars before trial. See G.L. c. 277, § 47A ; Mass.R.Crim.P. 13(b) and (c), as appearing in 442 Mass. 1516 (2004). See also Canty, supra.