Opinion
14-P-1535
12-23-2015
COMMONWEALTH v. SAMUEL STAMPLEY.
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, Samuel Stampley, appeals from his conviction, after a jury trial in the Boston Municipal Court, of possession of a class D substance (marijuana) with intent to distribute in violation of G. L. c. 94C, § 32C(a). Because this case is governed by Commonwealth v. Humberto H., 466 Mass. 562 (2013), and Commonwealth v. Ilya I., 470 Mass. 625 (2015), we agree with the defendant that the evidence was insufficient to prove that he possessed the requisite intent to distribute. Accordingly, we reverse.
We need not reach the defendant's additional arguments that the Commonwealth lacked sufficient evidence to prove constructive possession of the marijuana, that the judge erred by instructing the jury on joint possession, and that the testimony of the Commonwealth's expert witness and the prosecutor's discussion of that testimony in summation were improper.
Background. Around 8:00 P.M. on a late summer evening, the defendant and a female companion were alone at Healy Field, sitting in the bleachers smoking a marijuana cigar, or "blunt." The odor of burnt marijuana attracted the attention of Boston police Officer Peter Moscaritolo. Moscaritolo approached the two, who appeared to be in their mid-teens, between fifteen and seventeen years old. Moscaritolo "started a casual conversation" and noticed "a very fidgety, nervous reaction coming from both of them." They both gave the officer false names.
The defendant consented to a search of a backpack located near him on the bleachers. The front pocket contained thirteen individual, blue-tinted "sealed, little, mini Ziploc bags," each the size of a quarter. The defendant's companion had previously handed the officer four similar bags. The seventeen packets, plus their packaging, weighed less than one-half ounce. The defendant had nothing in his possession to indicate involvement with the drug trade.
When Moscaritolo asked the defendant whether there was any marijuana in the backpack, the defendant replied, "[N]ah, you can look." We previously reversed an order allowing the defendant's motion to suppress the contents of the backpack, concluding that the facts surrounding the defendant's encounter with Moscaritolo "compel[led] the conclusion that the defendant's consent to the search was voluntary." Commonwealth v. Stampley, 84 Mass. App. Ct. 1115 (2013). We decline the defendant's request to revisit the prior decision of this court.
Discussion. In Humberto H., supra at 563-564, a juvenile was arrested after the discovery of five plastic bags of marijuana inside the right pocket of a pair of shorts he was wearing under his pants. Reviewing the issuance of a delinquency complaint, the court held that the quantity and packaging alone did not support an inference of intent to distribute. Id. at 568-569. "No reasonable inference" could be drawn from the juvenile's "defensive and agitated" demeanor when confronted by school and police officials, as this reaction was natural under the circumstances. Id. at 566-567. While the absence of any smoking paraphernalia may support an inference of intent to distribute as opposed to personal use, that inference was outweighed by "the totality of what was not found on his person": the juvenile did not possess any cash or "a scale, a cellular telephone or pager, or empty plastics bags." Id. at 567. The totality of the evidence did not amount to probable cause to issue the complaint. Id. at 569.
In Ilya I., 470 Mass. at 627, a juvenile possessed thirteen individually wrapped bags of marijuana. The quantity and packaging did not support an inference of intent to distribute. Id. at 629-630. Nor did the additional evidence -- the juvenile's interaction with a group of individuals engaged in what appeared to be a drug transaction, the odd traffic pattern of a vehicle he briefly entered, his nervous demeanor when he became aware that police were nearby, the odor of unburnt marijuana, or the lack of smoking paraphernalia -- tip the scales in favor of probable cause to issue a complaint. Id. at 628, 631-634.
In these cases, the court observed that the number (five, thirteen) and packaging of the individual bags of marijuana were not distinctive enough to support an inference of intent to distribute. See Humberto H., supra at 568-569; Ilya I., supra at 629-630. By contrast, in Commonwealth v. Wilson, 441 Mass. 390 (2004), "the manner in which one-half ounce of marijuana was packaged was consistent with an intent to distribute, but in that case there were twenty separate packages and they were described as 'dime' bags, which reflected that the marijuana in each had street value and had been deliberately separated into packages roughly equal in quantity." Humberto H., supra, citing Wilson, 441 Mass. at 393, 400-402.
Here, unlike in Wilson, there was no evidence that the thirteen bags the defendant possessed were in fact "dime" bags. Moreover, in Wilson, in addition to the distinctive packaging and the absence of smoking paraphernalia, other accoutrements of the drug trade were found on the defendant's person: $476 in cash, a pager, and a cellular telephone. 441 Mass. at 401.
Thus, the evidence of intent to distribute adduced at the defendant's trial was no stronger than the evidence found insufficient to satisfy the probable cause standard in Humberto H. and Ilya I., let alone the more exacting standard of proof beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The only other factor present in this case that might distinguish it was the testimony of a nonpercipient witness, Boston police Officer Jon-Michael Harber, an experienced narcotics officer who testified as an expert.
Harber explained that "dime bags . . . are jargon for very small bags" -- "the smallest unit of marijuana for purchase" that he had seen on the job. A dime bag typically contains enough marijuana for a "joint" (a marijuana cigarette), a blunt (marijuana "in a cigar fashion"), or a bowl to be smoked "out of a pipe or a bong." Harber stated that "someone who is not a heavy user would buy a dime bag of marijuana for personal use." He explained by way of example,
"If you're going to make -- if you're going to eat a ham sandwich, you go to the store. You order a ham sandwich, and they give you enough that's on a ham sandwich. You don't go to the store and buy, like, a pound of ham to have a ham sandwich if you don't eat ham all the time, if that makes sense."Notwithstanding Harber's above testimony, he did not describe the packaging of dime bags, and no witness established that the defendant's thirteen bags were dime bags.
When asked whether it would be "significant" to him "if [he] was arresting someone that had, say, 10 plus small bags of marijuana on them," he responded, "That would be extremely significant as a person distributing -- having marijuana for distribution for several reasons." The judge cut off Harber's answer at this point to instruct the jury that it was for them to determine "whether or not [the defendant] possessed it with intent to distribute it." The prosecutor did not ask Harber to elucidate the "several reasons."
When asked on cross-examination whether someone might buy fifteen bags for personal use, Harber responded that he had never seen anybody buy fifteen bags for personal use.
In her closing argument, referring to Harber and his "years and years of experience," the prosecutor said,
"I posed the question to him that if he arrested someone that had 10 plus bags -- individually wrapped bags like the ones in this case, what would that mean to him, and he said if they -- if he arrested someone with 10 plus bags packaged like that, to him, that means distribution. A trained officer said that to you." (Emphasis supplied.)
In Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 842 (2012), with evidence that was similarly deficient to show intent to distribute, "[t]he Commonwealth relie[d] on the opinion testimony of its narcotics expert to meet its burden of proof." As here, the expert in Acosta testified that the number of bags indicated a sale. Ibid. As the basis for his opinion, he stated that five twist bags of cocaine was "a lot of cocaine to be using all at once." Ibid. The expert assumed that "a user would not consume 3.16 grams of cocaine 'all at once' or over the course of a day, and thus, a user buying this amount, everyday or regularly, must be selling." Id. at 842-843.
"The defendant possessed no accoutrements of the drug trade. He had no cash. Nor did he have a cellular telephone, beeper, or pager. He had no scale or other measuring device." Acosta, 81 Mass. App. Ct. at 841-842.
Harber's testimony was likewise based on nothing more than an assumption that because an individual likely would not consume more than ten dime bags of marijuana at once, an individual in possession of such a quantity must be selling. His comparison to how people purchase ham did not support his conclusion: it is not at all unusual to buy a pound of ham and consume it over several days. As in Acosta, the expert's opinion "was inherently flawed and legally incompetent," and "the jury were left to speculate as to the defendant's intent." Id. at 843. The prosecutor's suggestion that "10 plus bags packaged like that . . . means distribution" compounded the error by encouraging the jury to accept mere speculation as having legal significance.
Conclusion. "[J]udicial vigilance is especially important when a complaint charges an individual with possession of marijuana with intent to distribute where the amount of marijuana that is possessed is below the one-ounce threshold that would make its mere possession a crime." Humberto H., 466 Mass. at 570. In this case, none of the additional factors that might support an inference of intent to distribute are present to tip the scale in favor of proof beyond a reasonable doubt. See Ilya I., 470 Mass. at 634. The judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
So ordered.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 23, 2015.