Opinion
No. 15–P–435.
12-29-2016
COMMONWEALTH v. Larry PACK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted on a number of drug and firearm charges and acquitted of murder in the first degree and one count of a drug violation near a school or park. The defendant now appeals, arguing that the denial of his motion for required findings of not guilty on the drug charges was error and the judge's decision to join the defendant's murder indictment with his trial for the drug offenses was an abuse of discretion. We affirm.
Specifically, the defendant was convicted of the following crimes: possession of heroin with intent to distribute under G.L. c. 94C, § 32(a ) ; possession of cocaine with intent to distribute under G.L. c. 94C, § 32A(c ) ; a drug violation near a school or park under G.L. c. 94C, § 32J ; possession of a firearm and ammunition without an FID card, under G.L. c. 269, § 10(h ) ; sale, possession, or use of a silencer under G.L. c. 269, § 10A ; and possession of a firearm during the commission of a felony under G.L. c. 265, § 18B.
Background. The defendant was suspected of committing murder, leading Boston police to obtain a search warrant for both his person and his home. The searches yielded, among other things: cocaine, heroin, pills, prescription bottles not in the defendant's name, the firearm used in the murder, and ammunition and a silencer for that firearm. After separate indictments issued—one for murder in the first degree and possession of a firearm without an FID card, the other for the remaining drug and firearm charges—the Commonwealth filed a motion to join the indictments. The motion was allowed. The parties stipulated at trial that the drug evidence was originally tested by chemist Annie Dookhan in the midst of the Hinton drug laboratory scandal. A different chemist retested the samples and testified at the trial. The chemist testified that, in total, the drugs recovered from the searches of the defendant's home and person were 1.14 grams of cocaine and 1.56 grams of heroin.
At trial, the Commonwealth dismissed the possession charge.
For details on Dookhan's misconduct, see Commonwealth v. Scott, 467 Mass. 336 (2014).
Discussion. 1. Required findings of not guilty. The defendant argues that, because of Dookhan's involvement in the testing of the drugs resulting in his charges, the judge's denial at trial of his motion for required findings of not guilty was erroneous. We review the denial of a motion for a required finding of not guilty to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. James, 424 Mass. 770, 784 (1997), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
In a narcotics case such as this, the Commonwealth's proof must include evidence that supports a finding "that a substance is a particular drug." Commonwealth v. McGilvery, 74 Mass.App.Ct. 508, 511 (2009). Proof of the particular makeup of a drug can be introduced through an expert chemical analysis or by circumstantial evidence. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987).
In the wake of Dookhan's misconduct, the Supreme Judicial Court announced a rule that whenever Dookhan was the primary or secondary chemist in a drug analysis, "the defendant is entitled to a conclusive presumption that egregious government misconduct occurred in the defendant's case" if that defendant "seeks to withdraw his or her guilty plea after having learned of Dookhan's misconduct." Commonwealth v. Scott, 467 Mass. 336, 352, 354 (2014). That presumption has been extended to include situations where defendants are found guilty at trial and later learn of Dookhan's involvement in their case. Commonwealth v. Francis, 474 Mass. 816, 823 (2016).
The defendant was aware of Dookhan's involvement in his case at the time of trial. As a result, he now argues that there was sufficient concern that Dookhan intentionally altered the substances that were later retested and, thus, his motion for required findings of not guilty should have been allowed. We disagree. Here, the defendant had the opportunity to discredit the drug evidence at trial, and the Commonwealth had the drug samples retested by the testifying chemist. Similar to this court's decision in Commonwealth v. Curry, 88 Mass.App.Ct. 61, 63–64 (2015), we conclude that the testimony and physical evidence presented by the chemist at trial was sufficient to allow a jury to find the defendant possessed heroin and cocaine. Accordingly, there was no error in the judge's denial of the defendant's motion for required findings of not guilty.
2. Joinder. The defendant further contends that the judge's decision to join the defendant's murder indictment with his drug indictments was an abuse of discretion. We must defer to the judge's discretion absent "a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
The decision whether joinder is appropriate is left to the discretion of the judge, who "shall join [related] charges for trial unless he determines that joinder is not in the best interests of justice." Mass.R.Crim.P. 9(a)(3), 378 Mass. 842 (1979). Offenses are related "where the evidence ‘in its totality shows a common scheme and pattern of operation that tends to prove all the indictments.’ " Commonwealth v. Magri, 462 Mass. 360, 364 (2012), quoting from Commonwealth v. Delaney, 425 Mass. 587, 594 (1997), cert. denied, 522 U.S. 1058 (1998). This court has held that joinder is appropriate "if the offenses are related in the sense that they are based on the same criminal conduct, represent a series of episodes connected together, are of similar character, or represent a common pattern." Commonwealth v. Souza, 39 Mass.App.Ct. 103, 111 (1995). A judge's decision on joinder "often turns on whether evidence of the other crimes would be admissible in a separate trial on each indictment." Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).
The burden of showing that joinder was improper is on the defendant, who must show more than just that his "chances for acquittal would have been better had the ... indictments been tried separately." Commonwealth v. Ferraro, 424 Mass. 87, 91 (1997) (quotation omitted). See Commonwealth v. Wilson, 427 Mass. 336, 346–347 (1998). "[D]efinite prejudice that presently exists and not merely ... potential dangers" must be shown. Ferraro, supra at 90 (quotation omitted).
No such abuse of discretion exists in the present case. The Commonwealth presented evidence that the defendant's drug distribution was directly related to his motive in the murder indictment, as there was evidence he believed the victim was cooperating with law enforcement. There was further evidence presented that the relationship between the victim and the defendant was connected to the defendant's drug distribution.
Considering the above facts, the judge did not abuse her discretion in joining the indictments. The different indictments were largely intertwined, and allowing the jury to hear evidence on all charged crimes did not result in the introduction of impermissible prior bad act evidence. The judge issued lengthy and proper limiting instructions on prior and subsequent bad acts, the effectiveness of which is demonstrated by the jury's acquittal of the defendant on the murder charge. We therefore conclude that the judge was well within her discretion to join the indictments.
Judgments affirmed.