Opinion
10-P-2055
10-12-2011
COMMONWEALTH v. SEAN LAMONT THOMAS.
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 turn first to the defendant's argument that testimony by Sergeant Barker that the police had received complaints of illegal activity at the address at which the defendant was arrested and that they had observed suspected drug users coming in and out of the building amounted to improper bolstering. The defendant argues that '[e]vidence that drug dealing had been taking place at this address, with the inescapable inference that the defendant had been responsible for such drug sales, strongly suggested to the jurors that . . . the police had information other than the properly admitted evidence at trial establishing [the defendant's] intent to distribute.'
We disagree. Bolstering occurs when a message is sent to jurors that the government knows of evidence never disclosed to the jury that supports its case. United States v. Francis , 170 F.3d 546, 551 (6th Cir. 1999). Cf. Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). Whatever might be said about this evidence, it is not bolstering. It does not imply that the Commonwealth has information not known to the jury that points to the defendant's guilt.
To the extent the issue is properly raised, we do not think the judge was required to declare a mistrial in response to the sergeant's testimony that might have indicated to the jury that 'drug buys' had taken place at that location. The sergeant's statement was interrupted by an objection. The judge struck the statement and instructed the jury to disregard it. In light of the strength of the other evidence, we cannot say that it was an abuse of discretion to address the officer's testimony in this way rather than by declaring a mistrial.
Next, we address the absence of expert testimony. There is no general rule that a conviction for distribution of drugs requires expert testimony. See, e.g., Commonwealth v. Rivera, 425 Mass. 633, 645 (1997), nor do we think that in the absence of expert testimony there was insufficient evidence of an intent to distribute in this particular case. Although not necessary, it was a reasonable inference from all the evidence that the defendant possessed the drugs on his person with intent to distribute. This evidence included, among other things, not merely the drugs, packaged as they were, but evidence of the defendant having $624 in cash in his wallet in addition to the $30 in cash in his pants pocket, evidence that he possessed this money and the drugs in a house that was reportedly unoccupied, to which utilities were not connected, and evidence that he received mail at that address. In light of all the evidence, the jury could have found an intent to distribute beyond a reasonable doubt without relying upon anything beyond the common knowledge of the jury. Cf. Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 467 (1989) (in a case in which the defendant received a stolen gun, because the common experience of jurors does not allow them to assess the value of a firearm, in the absence of evidence on the point, the evidence was insufficient to convict the defendant of receiving stolen property of a value above $100).
Finally, we see no abuse of discretion in the denial of the defendant's rule 25 motion. See Mass.R.Crim.P. 25(b), as amended, 420 Mass. 1502 (1995).
Judgments affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ),