Opinion
20-P-844
06-07-2021
COMMONWEALTH v. Dustin MARQUES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Dustin Marques, appeals from his convictions, after a Superior Court jury trial, of trafficking in at least eighteen grams of heroin, G. L. c. 94C, § 32E (c ) (1), and assault and battery, G. L. c. 265, § 13A. Concluding that there was sufficient evidence of the defendant's intent to distribute, that the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice, and that the motion to suppress was properly denied, we affirm.
1. Sufficiency of intent to distribute. "[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
Under the theory of trafficking advanced here, the Commonwealth had to prove that the defendant knowingly or intentionally possessed a specified amount of heroin, here at least eighteen grams, "with the specific intent to distribute it." Commonwealth v. Ortega, 441 Mass. 170, 174 n.7 (2004). The defendant challenges only the Commonwealth's proof of his intent to distribute the heroin. "A ‘defendant's intent to distribute a controlled substance "is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances developed at the trial." ’ " Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). Accord Commonwealth v. Bones, 93 Mass. App. Ct. 681, 687 (2018), quoting Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 731 (1992) ("Intent is a factual matter that may be proved by circumstantial evidence"). Factors that indicate an intent to distribute include "distinctive packaging ...; possession of large quantities of drugs; the presence of implements or paraphernalia indicative of the drug trade; and the ‘presence of cash ...’ found on the defendant." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841 (2012), quoting Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 327 (2010). A substantial amount of drugs "alone may raise an inference of an intent to distribute." Acosta, supra.
Here, during a search of his person, a police officer found 28.13 grams of heroin mixed with fentanyl in the defendant's coat pocket. The drugs were found in two separate glassine bags, one much larger than the other. When he was asked what the substance in his pocket was, the defendant stated, "it was heroin ... probably mixed with fentanyl, because that's what's out there on the streets now." The Commonwealth's expert witness, a State trooper, testified that 28.13 grams of heroin was more consistent with distribution than with personal use. See Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) (allowing narcotics investigators to testify in drug cases because "[w]hether a certain quantity of drugs is consistent with personal use or with distribution is a matter not within the common experience of jurors"). Explaining why this quantity was more consistent with distribution, the trooper stated, "[I]t's very uncommon for a user simply just to use it to possess that large amount, especially for heroin and fentanyl, if that's what we're talking about. It's a very addictive drug, you know, the chances of overdosing for a user ... every day to have that much product on them, it[’s] just ... too risky and, from what I experienced, it's common users will not purchase that much." The trooper testified that, "normally a user ... would buy anywhere up from a half a gram to maybe ... a half a finger, which would be five grams, for a normal amount of an everyday user." See Commonwealth v. Richardson, 479 Mass. 344, 360 (2018), quoting Commonwealth v. Rugaber, 369 Mass. 765, 770 (1976) ("Typically, ‘[i]ntent to distribute a drug may be inferred from possession of large quantities of that drug’ "); Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 265-266 (2010) (bag containing 13.98 grams of cocaine was "not so small that only an inference of personal use is compelled; nor is it in equipoise with an intent to distribute," but it "properly formed the basis for opinion testimony ... that it was more consistent with distribution"). Contrast Sepheus, 468 Mass. at 166 (quantity and packaging of cocaine alone not enough to show intent to distribute where "the quantity was so small that an average user could consume the cocaine within two hours.... [and the detective] acknowledged that it was less than one day's supply").
Additionally, in the defendant's apartment, the officer found a digital scale, two one hundred dollar bills next to a metal box, empty plastic bags scattered "everywhere, on the floor," some of which were cut, fifty dollars on the defendant's person, "a small tray with a white, powdery substance on it," and a cut straw nearby. The trooper testified that "the presence of plastic bags, cut-corner bags would be consistent with distribution.... The presence of a digital scale would indicate ... that a suspected narcotic dealer is weighing his product before sales to make sure he doesn't get short-changed, to make sure he's keeping tracked and logged of the amount of product he's sending out in exchange for money.... [and] loose cash would be consistent with distribution also." He also stated, "More than one bag of a narcotic would be an indication of distribution." See Hernandez, 77 Mass. App. Ct. at 265-266 ("acknowledging the innocent purposes of a cellular telephone and cash, an experienced drug officer was allowed to opine that those items, together with the quantity of cocaine found on the defendant, was consistent with distribution"); Commonwealth v. Madera, 76 Mass. App. Ct. 154, 159 (2010) (digital scale, box of sandwich bags, large amount of cash, and roughly one pound of marijuana indicative "that the defendant intended to distribute it and that it was not simply for personal use"). As the evidence was sufficient to allow a reasonable jury to find that the defendant had the intent to distribute, the trial judge properly denied the defendant's motion for a required finding of not guilty.
The trooper admitted on cross-examination that it is possible that drug users may have scales to make sure that they get the correct amount of drugs, and that, although it "wouldn't be the most common thing," drug users may bag a large amount of drugs into smaller bags for their own personal use later on.
The defendant's assertion that the testimony "equally could have pointed to the fact that he intended [the drugs to be] solely for his own use" is without merit. "[C]onfusion as to the application and meaning of th[e] frequently invoked [Commonwealth v. Croft, 345 Mass. 143, 145 (1962) ] principle [as to equally probable, but inconsistent propositions] is as widespread as its incantation." Hernandez, 77 Mass. App. Ct. at 265, quoting Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998). This "concept pertains only to situations in which any view of the Commonwealth's evidence, however favorable, still requires a leap of conjecture with respect to essential elements of the crime charged in order to obtain a conviction." Hernandez, supra, quoting Latney, supra. Here, as in Hernandez, "there was no evidentiary gap[ ].... While the jury would have been entitled to reject the Commonwealth's theory, its case was properly submitted to the fact finders for consideration and rationally supported [a] conviction[ ] beyond a reasonable doubt." Hernandez, supra at 266, quoting Latney, supra.
2. Closing argument. "Closing argument must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). "Counsel may, however, zealously argue in favor of those inferences favorable to his or her case." Id. "Because the defendant did not object to the prosecutor's closing statement at trial, we review [any error] for a substantial risk of a miscarriage of justice." Commonwealth v. Childs, 94 Mass. App. Ct. 67, 76 (2018), quoting Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 (2018). Although "prosecutors are entitled to argue ‘forcefully for the defendant's conviction,’ closing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts." Commonwealth v. Alvarez, 480 Mass. 299, 305 (2018), quoting Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017).
The defendant takes issue with three statements made by the prosecutor in closing argument. First, the defendant points to the statement, "The last time I checked, they don't sell heroin at Walmart, and it's illegal to sell or possess that amount. Specifically, [eighteen] grams is the statutory amount to prove trafficking. This isn't close, he's got [twenty-eight]. He's not doing [twenty-eight] grams of heroin a week and living." Second, the defendant quarrels with the prosecutor's statement, "[The defendant] told you that he was an addict and he needed the drugs so bad, but that when he didn't have the money, he just wouldn't use. Does that sound consistent with you in your everyday experiences, an addict can just stop using heroin?" The third statement the defendant challenges is, "one of the things that point to intent to distribute, he knew the purity of the drug. He told the police officers it's mixed with fentanyl. How does he know that?"
In defense counsel's closing, he argued that the defendant was buying his drugs, as a user, in bulk, similar to "go[ing] to Walmart and see[ing] a lady coming out with [eighteen] rolls of toilet [paper] in a big package, you know they're not going to use those all at once."
The second and third statements were grounded in the evidence. Regarding the second, the defendant testified, "I've had times where I didn't work and where I would not -- I wouldn't be doing drugs, you know, but whenever I had money, I would spend it on drugs." With respect to the third, although the defendant did not identify the exact percentage of the purity of the heroin he possessed, he told the officer "it was heroin, and then he stated that it was probably mixed with fentanyl, because that's what's out there on the streets now." The parties stipulated that the heroin was in fact mixed with fentanyl. These statements by the prosecutor were fair inferences drawn from the evidence presented at trial.
At oral argument, the Commonwealth properly conceded that the first statement should not have been said by the prosecutor. Although there was no evidence specifically demonstrating that consumption of twenty-eight grams of heroin a week would be deadly, the trooper testified that heroin and fentanyl are "very addictive," and that "the chances of overdosing for a user ... every day to have that much product on them ... it's too risky." Moreover, although the prosecutor incorrectly suggested that possession of eighteen grams of heroin by itself constituted the crime of trafficking, there was no substantial risk that the jury convicted the defendant on that basis. Before closing arguments, the judge instructed the jury that the Commonwealth needed to prove that the defendant "had the specific intent to distribute, manufacture or dispense the controlled substance." The judge also instructed the jury, "It is my responsibility as the [j]udge and mine alone to instruct you as to what the law is." The jury were provided with a written set of instructions during deliberations. Both before and after the closing arguments, the judge instructed the jury that closing arguments are not evidence. Accordingly, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Salazar, 481 Mass 105, 118 (2018), quoting Commonwealth v. Hernandez, 473 Mass. 379, 392 (2015) (prosecutor's erroneous statement "was a brief, isolated statement," and "judge properly instructed the jury that closing arguments are not evidence, and it is well-established that ‘[t]he jury are presumed to follow instructions’ "); Commonwealth v. Johnston, 467 Mass. 674, 695 (2014) ("The absence of an objection is some indication that the argument did not land a hard, foul blow, and was not unfairly prejudicial").
3. Motion to suppress. a. Standard of review. In reviewing the denial of a motion to suppress, we "accept[ ] the judge's subsidiary findings of fact absent clear error, give[ ] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[ ] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996). Accord Commonwealth v. Martin, 467 Mass. 291, 301 (2014).
b. Entry into home. "In general, a search of a home without a warrant is invalid, but one exception is when the search is conducted with valid ‘consent.’ " Commonwealth v. Hernandez, 93 Mass. App. Ct. 172, 174 (2018), quoting Commonwealth v. Rogers, 444 Mass. 234, 236-237 (2005). "When the police rely on consent to justify a warrantless entry, under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ " Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 92-93 (2010), quoting Rogers, supra at 237. "To carry out that burden, ‘the Commonwealth must show "consent unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority." ’ " Farnsworth, supra at 93, quoting Commonwealth v. Voisine, 414 Mass. 772, 783 (1993). "The voluntariness of an individual's consent to a warrantless entry is an issue of fact, and must be examined in light of the totality of the circumstances of the case." Farnsworth, supra, quoting Rogers, supra at 238.
At the suppression hearing, an officer testified that the defendant's girlfriend went to the police station to report an incident of domestic violence perpetrated against her by the defendant. An officer asked her if the defendant was home at the apartment that they shared, and she responded in the affirmative. He testified, "I explained to her the exigency of the whole matter, and it would be best for us to try and locate him, bring him into custody as soon as possible for purposes of her immediate safety, as well as the allegations made by her. She said that she had a key on her on a lanyard. She said that she would give me the key and allow us inside the residence to attempt to locate and bring him to custody for the allegations made against him by her." The judge credited this testimony, and found that the girlfriend "voluntarily consented to the officers’ entering the apartment when she gave them her key. Further, based on the circumstances, it is reasonable to infer that at the time she gave the key she expected the officers to go to the apartment and arrest the defendant."
"An occupant's consent is valid as against the wishes of an absent, nonconsenting co-occupant." Commonwealth v. Suters, 90 Mass. App. Ct. 449, 453 (2016).
When asked by defense counsel on cross-examination whether the officer told the girlfriend that she did not have to give him the key, he stated, "I didn't have any conversation about the key. It was, ‘Here's the key,’ and she gave it to me."
Although the girlfriend testified at the grand jury that she felt she had to give the police the key because they asked for it, the judge was entitled to credit the officer's testimony that, in fact, the girlfriend volunteered the key. See Commonwealth v. Neves, 474 Mass. 355, 360 (2016), quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980) ("The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court"). Furthermore, as the motion judge pointed out, there was no evidence of police coercion. "[S]he did not testify that she was uncomfortable, feared the officers, or that the officers had threatened her." Accordingly, the evidence supported the judge's finding that the girlfriend consented to the search of the apartment. See Farnsworth, 76 Mass. App. Ct. at 93 (where officers identified themselves as such at home, told defendant's mother about object of search, provided consent form, and told her she did not need to consent, despite stating that they would obtain warrant if she did not consent, consent was voluntary). Contrast Rogers, 444 Mass. at 239-241 (" ‘mere acquiescence’ to a claim of authority" in absence of "more precise information" regarding police action is inadequate to show consent).
As we determine that the officers had the girlfriend's consent to enter the apartment, we need not address whether the entry was justified by exigent circumstances or by two outstanding default warrants for the defendant's arrest.
c. Search of the defendant's jacket. The motion judge found that "[t]he items found in [the defendant's] jacket were properly discovered and seized during a search incident to his arrest." The police are authorized to search a person incident to a lawful arrest of that person "only (1) for the purpose of seizing evidence of the crime for which the arrest has been made in order to prevent its destruction or concealment or (2) for the purpose of removing any weapon the person arrested might use to resist arrest or to escape." Commonwealth v. White, 469 Mass. 96, 99 (2014), quoting Commonwealth v. Blevines, 438 Mass. 604, 607 (2003). G. L. c. 276, § 1.
After entering the apartment, the officer advised the defendant that he was under arrest pursuant to two default warrants and for the domestic violence described by his girlfriend. He was handcuffed while wearing a jacket. The officer was justified in searching the defendant after his arrest to ensure that he did not have any weapons on him before placing him into the cruiser. See White, 469 Mass. at 100 (where defendant arrested for violation of protective order and drug offense, search limited to search for weapons that "defendant might use to resist or escape, or objects that might be used as a weapon"). "It was reasonable for the officer to pat frisk the defendant for possible weapons and, where he felt a hard object, to examine the object to assure himself that it could not be used as a weapon and did not contain a weapon ...." Id. Here, the officer pat frisked the defendant, felt a large bulge, and properly examined the items (which turned out to be big bags of heroin and fentanyl) to determine whether they could be used as weapons. Accordingly, the motion judge properly denied the motion to suppress.
Judgments affirmed.