Commonwealth v. Hawkins

388 Mass. 1014

Opinion

The defendant appealed from his conviction of possession of a controlled substance with intent to distribute. G. L. c. 94C, § 1. The Appeals Court summarily affirmed the judgment. Commonwealth v. Hawkins, 14 Mass. App. Ct. 1306 (1982). We granted the defendant’s application for further appellate review. The trial judge declined to instruct the jury concerning the lesser included offense of unlawful possession of a controlled substance. This refusal was error.

A judge must charge the jury concerning a lesser included offense if the evidence provides a rational basis for acquitting the defendant of the crime charged and for convicting him of the lesser included offense. See Commonwealth v. Lee, 383 Mass. 507, 514 (1981); Commonwealth v. Campbell, 352 Mass. 387, 392, 398 (1967). We have reviewed the evidence and conclude that the jury were not required either to convict the defendant of the crime of possession with intent to distribute or to acquit him altogether. Although hardly compelling, there was evidence which would have rationally warranted a guilty finding only of possession of a controlled substance.

The judgment is reversed, the verdict is set aside, and a new trial is ordered.

So ordered.