Commonwealth v. Lindsey

724 N.E.2d 327, 48 Mass. App. Ct. 641, 2000 Mass. App. LEXIS 87
CourtMassachusetts Appeals Court
DecidedFebruary 24, 2000
DocketNo. 98-P-1820
StatusPublished
Cited by7 cases

This text of 724 N.E.2d 327 (Commonwealth v. Lindsey) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Lindsey, 724 N.E.2d 327, 48 Mass. App. Ct. 641, 2000 Mass. App. LEXIS 87 (Mass. Ct. App. 2000).

Opinion

Kaplan, J.

A grand jury in Berkshire County indicted the defendant Darren Lindsey for distributing cocaine, and for distributing the same within a thousand feet of a school zone, both offenses having occurred on October, 28, 1996; and for trafficking in cocaine of a net weight of more than fourteen but less than twenty-eight grams on November 23, 1996.

A jury in Superior Court acquitted the defendant of the two charges of October 28, but convicted him of the charge of November 23.

[642]*642It will be convenient to deal with the happenings on the two dates. Principal witnesses for the Commonwealth were, respectively, Mark Mazzer and James Little. They had drug charges outstanding against them and each was willing to cooperate on the understanding that he might be given consideration for his help when the time came to dispose of the pending case or cases. In presenting these witnesses to the jury and in other behavior the prosecutor created a background that puts a question about the fairness of the trial as affecting the conviction.

1. October 28 transaction. Mark Mazzer, who had previous criminal involvement with cocaine distribution in North Adams, offered to solicit a purchase from Ron Montgomery, from whom he had earlier bought small quantities of cocaine. Mazzer reached Montgomery and arranged to meet him at the Champion outlet store on West Ho„usatonic Street in Pittsfield on the evening of October 28, 1996. Under the usual protocol for a police “controlled buy,” Mazzer, personally “clean” and driving a “clean” Honda, went alone to the appointed place. Montgomery, driving a Chevy Blazer with tinted side windows, drew alongside, with the Blazer passenger’s side adjacent to the Honda driver’s side. After some haggling a price of $120 was set and Montgomery handed to his passenger a bag of crack cocaine (2.81 grams on later weighing), which the passenger handed through the window to Mazzer’s outstretched hand. Mazzer said he observed during the transaction through his open driver’s window a man in the rear of the Blazer, silent, leaning forward with his hands outstretched on the front seat backs. This is taken to have been the defendant Lindsey. The front passenger in the Blazer was later known to be James Little. Pittsfield police watched the “buy” closely and followed the Blazer as it went to a Friendly’s restaurant parking lot. The car had run a red light on the way. As police approached, Montgomery got out of the car. He then volunteered (falsely) to the police that the defendant was the driver who ran the light and the police chose to ticket the defendant for the traffic offense.1

2. November 23 transaction. Little was on probation in North Carolina when he appeared in Pittsfield, and when he gave testimony in the present case, stood charged on account of the October 28 episode, the November 23 episode (now to be [643]*643recounted), and a fresh drug offense committed after November 23. Montgomery drove up to Pittsfield from North Carolina with his brother and the defendant and Little. The latter two knew Montgomery’s reputation back in that State as a drug seller. Montgomery, the defendant, and Little put up at the Colonial Hotel in Pittsfield; Montgomery paid for a hotel room which was shared by the defendant and Little. Shortly, as a result of a difference with the management of the hotel, the three took separate rooms at the nearby Huntsman’s Motel. Around this time, Little said, a drug pattern emerged, with Montgomery securing cocaine from the outside and furnishing it to the other two who (perhaps with Montgomery himself) sold it in small bags on John Street in Pittsfield to any who came by and inquired. Little said he saw the defendant engaged in such hand to hand sales on the street.

The morning of November 22, 1996, Montgomery left some cocaine with Little in Little’s room, no. 8. Around 10:00 p.m., Montgomery telephoned to ask Little to wait until he came back, presumably from a trip to New York. About this time the police observed Montgomery driving off from the motel. The defendant appeared in no. 8 with women companions; after a while, the women departed, the defendant remained, and Little started to play a video game. At 1:00 a.m., November 23, Montgomery telephoned to say he had returned and was on his way. There came a knock, Montgomery appeared, threw some cocaine on the bed, and said he wanted Little (or “us”?)2 to hold the drugs. Little testified that the defendant, who was on the couch, moved the stuff to a desk. Shortly the police knocked and proceeded to execute a search warrant, yielding a total of 18.69 grams of crack cocaine from three locations in the room; beepers, a cell phone, and baggies were also found. As the police entered, Little tried futilely to escape the room and then gave the false name Kevin Walker. The defendant made no move; he invited the police to search his room, no. 7, which they did, but found nothing.3

3. Proof respecting defendant. During pretrial proceedings, the defendant objected to the proposed trial of the October 28 [644]*644charges together with the November 23 charge; he insisted that the events were distinct and should be separately tried. After rather confused argument by the prosecution in terms of “conspiracy,” it seemed accepted that the prosecutor would be trying the case on a theory of joint venture with connection or continuity among all the charges. The judge’s instructions spoke to joint venture.

When the jury acquitted on the October 28 counts, the notion of joint venture was put in question.

The most plausible ground of the acquittal was that the defendant appeared from the evidence, taken full strength, to have been on the scene but not joining in the transaction — and the judge’s instructions had distinguished in the accustomed way between presence and participation.

The case against the defendant for November 23 was improved, but, in our view, not by much. Little, in markedly and perhaps suspiciously neat testimony, has the defendant touching some cocaine as he moves it from the bed to the desk. There is the testimony about the defendant’s selling the drugs on John Street, but this is hardly a clincher. It is Little’s words which amount to a general accusation; the Commonwealth offered no proof of particular sales. The charge is trafficking on November 23, and any tie back of the supposed sales to the corpus delicti of the indictment, the quantity seized at Little’s room no. 8, is quite weak.

4. Prejudicial factors. If, under the rule of the Latimore case, Commonwealth v. Latimore, 378 Mass. 671 (1979), a required finding in the November 23 charge could be averted, it was by a small margin. We need to consider the weakness of the material case against the defendant, and the dependence of that case on the veracity of the witness Little, when it comes to evaluating the conduct of the prosecutor in its possible or likely influence on the jury.

The prosecutor, opening to the jury, said he was going to call two witnesses with drug charges lodged untried against them, “who are willing to testify honestly and truthfully in exchange for what they hope to be consideration offered by the Commonwealth,” that is, a recommendation of some kind of leniency when the witnesses ultimately pleaded guilty to the charges against them.

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Cite This Page — Counsel Stack

Bluebook (online)
724 N.E.2d 327, 48 Mass. App. Ct. 641, 2000 Mass. App. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lindsey-massappct-2000.