Opinion
16-P-1219
07-28-2017
COMMONWEALTH v. Tony L. MASSEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant, Tony L. Massey, was found guilty of possession with intent to distribute a class D substance (marijuana). On appeal, he contends that, because the Commonwealth violated his right to a speedy trial, the case should have been dismissed. He also asserts the evidence of his possession of marijuana with the intent to distribute was insufficient as a matter of law. For the following reasons, we affirm.
The defendant was also found responsible on two motor vehicle violations. The findings were filed with his consent.
We recite the facts the jury could have found, reserving certain details for later discussion. A car driven by the defendant was stopped for a traffic stop. A search of the vehicle ensued. During the search, the police found a white plastic shopping bag that contained a gallon-size freezer bag containing a green leafy substance suspected to be marijuana, three sandwich-sized bags containing suspected marijuana, smaller empty plastic bags, and a scale in a large white shopping bag on the passenger side floor board. The bag contained no personally identifying information. An additional nine individually wrapped bags of marijuana were located in the defendant's pants' pocket and two small bags of marijuana were retrieved from his socks. The front seat passenger was found to have a bundle of cash in his pocket containing approximately $4,700.
On appeal, the defendant does not contend that the traffic stop and search were improper.
A narcotics expert witness, testifying for the Commonwealth, explained narcotics sales, how marijuana is usually packaged for sale, and identified the substance in one of the bags as marijuana. He also opined that the manner in which the marijuana here had been measured and the presence of the empty plastic baggies and a scale were consistent with the distribution of marijuana, rather than possession for its personal consumption. A defense expert countered that the marijuana could be for personal use. While the defense expert admitted that the substance looked and smelled like marijuana, he declined to identify it as such, and testified that he had never seen a narcotics case where the suspected drugs were not tested at a State laboratory.
1. Speedy trial. On February 11, 2016, the defendant filed a motion to dismiss under Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979), the Sixth Amendment to the United States Constitution, and art. 11 of the Massachusetts Declaration of Rights, arguing that he was denied his right to a speedy trial. The trial judge denied the motion, and the defendant complains that the judge erred. "[W]hile we will give deference to the determination made by the judge below [because we are viewing substantially the same record] we may reach our own conclusions." Commonwealth v. Barry, 390 Mass. 285, 289-290 (1983).
a. Rule 36(b). Rule 36(b) states that "[i]f a defendant is not brought to trial within the time limits of this subdivision, ... he shall be entitled upon motion to a dismissal of the charges." The parties agree that the trial was delayed for a period of 864 days from the defendant's arraignment on September 30, 2013, to his trial on February 11, 2016, shifting the burden onto the Commonwealth to justify a delay of 499 days, beyond the 365 day limit. The parties also agree that of the 499 days, at least 378 days are excludable from the calculation. Because more than 365 days passed between the defendant's return date (in this case, his arraignment date) and trial, the defendant demonstrated a prima facie violation of rule 36(b). The burden shifts to the Commonwealth to justify the delay. Commonwealth v. Denehy, 466 Mass. 723, 729 (2014). In dispute are two periods of time in which the case was continued, without objection, due to court congestion. Specifically, the case was continued from December 4, 2014, to March 25, 2015 (111 days), and from November 19, 2015, to February 11, 2016 (eighty-four days).
The transcript identifies the date as December 2, 2014; this discrepancy has no effect on our analysis.
A delay may be excused if it falls under a period of time excluded by the rule 36(b)(2) calculations or "by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay." Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). "A failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994). Applying that reasoning here, the delays in this case due to court congestion are excused. Cf. Commonwealth v. Davis, 91 Mass. App. Ct. 631, 632 (2017) ("We conclude that delays attributable to court congestion—if the defendant objects—are not excludable from the rule 36 calculation, unless the judge makes the necessary findings under rule 36 [b] [2][F]"). Nonetheless, the defendant contends that any objection would have been futile. "Even if the objection is futile, where short staffing in the court renders a continuance essentially nondiscretionary, the defendant nonetheless carries the duty of reminding the court of the rule 36 implications of continuing the proceedings." Commonwealth v. Denehy, supra at 731 n.12.
The defendant also contends that because the judge failed to make oral or written findings according to rule 36(b)(2)(F), he abused his discretion in determining that the days were excludable. However, where the defendant did not object to the continuances, there was no need for rule 36(b)(2)(F) findings. See Commonwealth v. Davis, supra. Accordingly, the 195 days at issue were excludable, and we are satisfied that the Commonwealth has justified the periods of delay that exceeded 365 days.
b. Sixth Amendment and art. 11 of the Massachusetts Declaration of Rights. The defendant contends that his right to a speedy trial under the Sixth Amendment of the United States Constitution and art. 11 of the Massachusetts Declaration of Rights was also violated. When a defendant claims that there has been a " ‘presumptively prejudicial’ delay," Commonwealth v. Butler, 464 Mass. 706, 709-710 (2013), we apply the four-factor Barker test. Ibid., citing Barker v. Wingo, 407 U.S. 514, 530 (1972). We consider: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice to the defendant. Butler, supra at 715-719, citing Barker v. Wingo, supra.
It is true that there was an 864-day delay between the defendant's arraignment and trial, however, the delay was due to court congestion rather than any intentional delay or bad faith on the part of the Commonwealth. See Commonwealth v. Butler, supra at 716. As discussed above, the defendant failed to object to the delays and did not assert his speedy trial right. Id. at 717 ("The defendant's acquiescence in the delay in bringing him to trial, thus, weighs slightly against him and, moreover, extenuates the presumptive prejudice"). Additionally, the defendant, who was not incarcerated during the pendency of the case, presents no "particularized prejudice." Ibid. After assessing the four Barker factors, we conclude that the delay between the defendant's arraignment and trial did not violate his constitutional rights under either the Sixth Amendment or art. 11.
2. Sufficiency of the evidence. The defendant contends that the trial judge erred in denying his motion for a required finding of not guilty. Our inquiry turns, therefore, on whether the Commonwealth produced evidence which, when viewed in the light most favorable to the Commonwealth, is sufficient to satisfy a rational trier of fact that each element of the crime had been proved beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
Possession of marijuana with intent to distribute comprises the following elements: (1) that the substance in question is marijuana; (2) that the defendant possessed some amount of marijuana with the intent to distribute it; and (3) that the defendant did so knowingly or intentionally. G. L. c. 94C, § 32C(a ). The defendant's argument is two-fold. He asserts there was insufficient evidence that he constructively possessed the marijuana contained in the white bag, and that he possessed any of the marijuana with the intent to distribute it. We disagree.
"Constructive possession of a controlled substance requires proof that the defendant had knowledge of the location of the illegal drugs plus the ability and intent to exert dominion and control." Commonwealth v. Owens, 414 Mass. 595, 607 (1993). "Knowledge may be inferred when the prohibited item is found in open view in an area over which the defendant has control." Commonwealth v. Albano, 373 Mass. 132, 135 (1977). Here, the defendant's knowledge of the contraband in the white bag can be inferred from the defendant's control over the car and proximity to the drugs in open view.
The defendant was stopped driving a car that he had borrowed from his cousin three days earlier. The cousin told police that there was no white shopping bag or contraband in the car when the defendant took control of the car. When stopped, the shopping bag, in which the marijuana was packaged in clear baggies, was in open view and within the defendant's arm reach. In addition, the marijuana recovered from the defendant's pocket and sock was similarly packaged. This evidence was sufficient to establish the defendant's knowledge and intent to exercise dominion and control. See Commonwealth v. Albano, supra at 134 (presence in area where contraband is found "supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency" [quotation omitted] ).
The evidence also supported an inference that the defendant possessed the marijuana with the intent to distribute it. "Intent is a factual matter that may be proved by circumstantial evidence." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427 (1985). Here, the defendant was found in possession of a large quantity of contraband, which included his constructive possession of the marijuana in the shopping bag and his actual possession of the marijuana on his person. However, he had no paraphernalia for consuming any marijuana. This "absence of smoking paraphernalia" is "significant in determining whether drugs are for personal use or for distribution." Commonwealth v. Little, 453 Mass. 766, 770 (2009). The white bag also contained further evidence of distribution, i.e., empty plastic baggies and a scale, and the Commonwealth witness explained how the packaging was consistent with distribution, rather than possession for personal use. Contrast Commonwealth v. Cruz, 459 Mass. 459, 469 n.15 (2011) (no reasonable suspicion defendant was engaged in criminal activity where "the officers did not see a scale, plastic baggies, or any other drug paraphernalia traditionally associated with the sale of marijuana"). The evidence, therefore, of the defendant's intent to distribute the marijuana was sufficient. See Commonwealth v. Wilson, 441 Mass. 390, 401-402 (2004) (holding that jury could have found that defendant intended to distribute marijuana, based on "the amount of marijuana the defendant possessed in the absence of any smoking paraphernalia, the manner in which the marijuana was packaged, the defendant's possession of $476 in cash, a pager, and a cellular telephone, and [a detective's] testimony that the aforementioned facts are consistent with an intent to distribute").
The defendant also separately challenges the sufficiency of the evidence in support of an inference that he intended to distribute the marijuana discovered in his pocket and socks. Because the jury had sufficient evidence to find him guilty of possession with intent to distribute marijuana based on constructive possession of the white shopping bag, we do not reach this issue.
Last, relying on the axiom, "[w]hen the evidence tends to equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof," Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 264 (2010), the defendant asserts that, because the evidence supported the equal proposition that the passenger possessed the marijuana, he cannot have been found to possess the marijuana either exclusively or jointly. This argument lacks merit. The Commonwealth is permitted to proceed on alternative theories of conviction. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989) (constructive possession may be exclusive or joint). Furthermore, "on appeal after a conviction, we will examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). Because the evidence supported the defendant's exclusive possession of the marijuana with the intent to distribute it, we need not also address whether there was sufficient evidence that he engaged in its joint possession and distribution. See Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 210-211 & n.5 (2002).
The defendant acknowledges that the Supreme Judicial Court has "adopt[ed] the language of aiding and abetting, rather than joint venture." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).
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Judgment affirmed.