Commonwealth v. Roman

609 N.E.2d 1217, 414 Mass. 642, 1993 Mass. LEXIS 129

Opinions

Wilkins, J.

A Worcester County jury found the defendant guilty on indictments charging him with trafficking in cocaine (G. L.c. 94C, .§ 32E (b) [1990 ed.]), and with unlawful possession of cocaine with intent to distribute (G. L. c. 94C, § 32A [1990 ed.]). Before trial, the defendant had moved for dismissal of the indictment charging trafficking on the ground that the evidence before the grand jury was insufficient to support the indictment. The judge took the motion under advisement and after trial allowed it. The Commonwealth has appealed from the allowance of that motion.¹ We transferred the Commonwealth’s appeal to this court. We vacate the order allowing the defendant’s motion to dismiss the trafficking indictment.

We must decide whether the grand jury were presented with sufficient evidence to support a finding of probable cause to arrest the defendant for trafficking in cocaine in violation of G. L. c. 94C, § 32E (¿?) (l).² See Commonwealth v. Brzezinski, 405 Mass. 401, 402 (1989), and cases cited. Probable cause to arrest “requires more than mere suspicion but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Hason, 387 Mass. 169, 174 (1982). The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense. See id.; Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982); Commonwealth v. Club Caravan, Inc., 30 Mass. App. Ct. 561, 566-568 (1991).

Trafficking is defined as “knowingly or intentionally manufacturing, distributing or dispensing or possessing with intent to manufacture, distribute or dispense or . . . bringing into the commonwealth a net weight of fourteen grams or more of . . . any mixture containing a controlled substance” such as cocaine. G. L. c. 94C, § 32E (6). See Commonwealth v. Chappee, 397 Mass. 508, 521-522 (1986). The statute is disjunctive, setting forth three categories of trafficking: (1) manufacturing, distributing, or dispensing fourteen grams or more of cocaine; (2) possessing with intent to manufacture, distribute, or dispense fourteen grams or more; and (3) bringing into the Commonwealth fourteen grams or more. Commonwealth v. Silva, 21 Mass. App. Ct. 536, 540-541 (1986). There was no evidence that the defendant was manufacturing, distributing, or dispensing cocaine, and the Commonwealth does not argue the point.

The evidence before the grand jury was a State trooper’s testimony that he had seen the defendant’s vehicle come off the Massachusetts Turnpike in Auburn onto Route 12. Because the defendant was driving erratically, the trooper stopped him and asked if there was a problem. The trooper noticed that the defendant was nervous and asked him for a driver’s license and registration. The defendant produced a Connecticut license, which turned out to be suspended. The trooper ordered the defendant from his vehicle and placed him under arrest. When the trooper patted the defendant down for weapons, he felt a large bulge in a pocket of the defendant’s pants. He reached in the pocket and removed a bag of white powder. The powder was sent to a laboratory for analysis, which reported it to be 25.6 grams of cocaine.

The judge dismissed the indictment based on his ruling that the grand jury evidence was insufficient to establish probable cause that the defendant had brought cocaine into the Commonwealth. The judge was correct in ruling that the evidence would not support an inference that the defendant had brought the cocaine into the Commonwealth. See Commonwealth v. McLeod, 394 Mass. 727, 747, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985).

For some reason, the judge did not go on to discuss whether the evidence provided probable cause for a trafficking indictment on the theory that the defendant possessed cocaine with the intent to distribute. The Commonwealth relies on this theory. The trooper’s grand jury testimony certainly provided probable cause to believe that the defendant possessed the cocaine. The issue is whether possession of 25.6 grams of cocaine in the circumstances supports a finding of probable cause to believe that the defendant intended to distribute the cocaine.

This court and the Appeals Court have often stated that possession of a large amount of illegal drugs raises an inference of intent to distribute warranting a verdict of guilty. See, e.g., Commonwealth v. Pratt, 407 Mass. 647, 653 (1990); Commonwealth v. Bongarzone, 390 Mass. 326, 349-350 (1983); Commonwealth v. Scala, 380 Mass. 500, 511 (1980); Commonwealth v. Rugaber, 369 Mass. 765, 770 (1976); Commonwealth v. Ellis, 356 Mass. 574, 578 (1970); Commonwealth v. James, 30 Mass. App. Ct. 490, 499 (1991) ; Commonwealth v. Poole, 29 Mass. App. Ct. 1003, 1004 (1990); Commonwealth v. Allen, 28 Mass. App. Ct. 589, 596 (1990); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984); Commonwealth v. Gill, 2 Mass. App. Ct. 653, 657 (1974). In many cases concerned with the sufficiency of evidence to support a finding beyond a reasonable doubt of the possession of illegal drugs with intent to distribute, the Commonwealth had other supporting evidence. In some cases the Commonwealth could rely on the presence of various items used to manufacture or distribute drugs. See, e.g., Commonwealth v. Pratt, supra (drug transaction list); Commonwealth v. Ellis, supra (processing equipment and empty bags); Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 425 (1985) (precision scale and cutting powder); Commonwealth v. Gill, supra (cutting paraphernalia). In others, the drugs were packaged in such a way as to suggest that the defendant intended to sell them rather than to use them personally. See, e.g., Commonwealth v. Johnson, 410 Mass. 199, 200 (1991) (seventy-one individual bags of cocaine); Commonwealth v. Pratt, supra (heroin packaged one dose per bag, bags marked with local brand name and bundled in groups of ten and fifty); Commonwealth v. Scala, supra (twenty “awful fat” packages of amphetamines); Commonwealth v. Ellis, supra (fifty-six bags of heroin with street value of $10 each); Commonwealth v. James, supra (eighty $50 bags of cocaine); Commonwealth v. Poole, supra (large quantity raises inference of intent to distribute “particularly where, as here, the drugs were distinctively packaged”); Commonwealth v. Sendele, supra (“distinct packaging”); Commonwealth v. Baltrop, 2 Mass. App. Ct. 819, 820 (1974) (375 bags of heroin with street value of $10 each). In some cases, an intent to distribute has been supported by evidence of the defendant’s possession of large amounts of cash. See, e.g., Commonwealth v. Sendele, supra at 758-759; Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 607 (1976). Other supporting evidence of intent to distribute has included the “high calibre” of the drug (Commonwealth v. Sendele, supra at 758); statements of the defendant (Commonwealth v. Bongarzone, supra at 329; Commonwealth v. Nichols, supra at 614); behavior of the defendant (Commonwealth v. Fogarty, 25 Mass. App. Ct. 693, 701 [1988]); the arrest of two men coming out of defendant’s apartment with heroin (Commonwealth v. Ellis, supra); and the defendant’s “repeated travel at short intervals to a notorious drug center” (Commonwealth v. Sendele, supra at 759). No such supporting circumstances exist here.

When a guilty finding of possession with intent to sell has been upheld where there was little or no evidence of intent to distribute beyond the amount of the drugs seized, the amount seized has been very high. See, e.g., Commonwealth v. Bongarzone, supra at 331 (fifteen green trash bags of marihuana); Commonwealth v. Rugaber, supra (100 doses of LSD on one defendant and 900 doses on another); Commonwealth v. Allen, supra (eleven pounds of marihuana); Commonwealth v. Fogarty, supra at 696 (514 grams of cocaine). In Commonwealth v. Sendele, supra, Justice Kaplan, writing for the Appeals Court, suggested that the possession of 14.4 grams of “rock” cocaine alone might not justify guilt based on an inference of intent to distribute. Id. at 758. Some cases suggest that a large amount is one that is inconsistent with personal use. In Commonwealth v. Wooden, 13 Mass. App. (1982), the court concluded that possession of an amount of drugs that was consistent with personal use (23.44 grams of marihuana and 6.63 grams of cocaine, id. at 422) would not support an inference of intent to distribute in the absence of any other evidence. Id. at 423-424. See also Commonwealth v. Murphy, 34 Mass. App. Ct. 16, 18 (1993) (following Wooden); Commonwealth v. Tripp, 14 Mass. App. Ct. 997, 998 (1982) (no evidence offered to show possession of eight bags of heroin more consistent with distribution than with personal use). Cf. Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 731 (1992) (small amount of drugs consistent with intent to distribute when packaged in a manner consistent with sale and when defendant arrested with large amount of cash in area of high drug activity). On this approach, the question for us is whether 25.6 grams of cocaine is consistent with personal use.

In these circumstances, it seems likely that the evidence presented to the grand jury would have been insufficient to support a guilty verdict. See Commonwealth v. Pratt, supra at 651. However, as we have said, in order to indict the defendant, the grand jury did not need evidence warranting a finding of the defendant’s guilt beyond a reasonable doubt. It needed only evidence establishing probable cause to arrest. Two cases in which the defendants challenged indictments for trafficking for lack of sufficient evidence are not helpful in resolving the present problem because there was ample evidence of intent to distribute beyond the amount of drugs possessed. In Commonwealth v. Brzezinski, 405 Mass. 401 (1989) , police found on the defendant’s premises fifty-two grams of cocaine, test tubes, a scale, and $1,000 in cash. Id. at 403. In Commonwealth v. Arias, 29 Mass. App. Ct. 613 (1990), S.C., 410 Mass. 1005 (1991), the Appeals Court relied not only on the presence of cocaine, but also on a previous undercover buy, cash, paraphernalia, the fact that the apartment was barricaded, and the defendant’s attempts to dispose of the cocaine. Id. at 616-617.

A reasonable belief that the defendant, who possessed 25.6 grams of cocaine in a motor vehicle on a State highway, did so with the intent to distribute the cocaine is warranted in this case. We grant that the question is a close one. In Commonwealth v. Sendele, 18 Mass. App. Ct. 755 (1984), the court suggested that possession of 14.4 grams of cocaine alone might not justify an inference beyond a reasonable doubt that there was an intent to distribute. Id. at 758. Here we apply a lesser standard. Evidence supporting inference of an intent to distribute need not support a finding of such an intent beyond a reasonable doubt. Such an inference must, however, rise above the level of mere suspicion. Possession of 25.6 grams of cocaine warranted a reasonable inference in the circumstances of this case that a person would not carry such a volume of cocaine in a motor vehicle if it was intended solely for his use alone.

The Legislature has recognized that a person who has only fourteen grams of a mixture containing cocaine could be a trafficker. G. L. c. 94C, § 32E (b). The cocaine was not found in the defendant’s home, but rather was carried in a motor vehicle that he, a nonresident, operated on State highways in the Commonwealth. In these circumstances, 25.6 grams of cocaine alone might not justify an inference beyond a reasonable doubt that there was an intent to distribute (see Commonwealth v. Sendele, supra), but it would justify an inference by a reasonable person that the defendant possessed the cocaine with an intent to distribute it. A reasonable person would have a basis “sufficient to warrant a person of reasonable caution in believing” (Commonwealth v. Catalina, 407 Mass. 779, 790 [1990]) that the offense of possession with intent to distribute was committed and that the defendant did not carry this volume of cocaine about the countryside for personal use. A reasonable person is expected to use common sense and rely on what he or she has learned from experience.

We reject the defendant’s further argument that the Commonwealth withheld from the grand jury exculpatory evidence that, if presented, would have substantially undermined the evidence that was presented. See Commonwealth v. Connor, 392 Mass. 838, 854 (1984). The State trooper who testified before the grand jury did not tell the grand jury that the defendant had told him that the cocaine was for his own use. This information was apparently in the trooper’s police report.³ The failure to present the defendant’s self-serving statement to the grand jury did not greatly undermine the validity of the evidence presented. See Commonwealth v. McGahee, 393 Mass. 743, 746 (1985).

The order allowing the defendant’s motion to dismiss the indictment (no. 90-1412) is vacated. The defendant shall be sentenced on that conviction. Appropriate consideration shall be given to any changes that should be made in the sentence imposed on the lesser included offense (indictment no. 90-1413).

So ordered.

Footnotes

1

The judge sentenced the defendant to one year in a house of correction on the other indictment. The defendant has filed a notice of appeal from that conviction, but that appeal is not before us.

As will be seen, the alleged insuEciency in the grand jury evidence applies equally to each indictment, but, perhaps for tactical reasons, the defendant raised the point by motion on the traEcking indictment (and not on the lesser included offense). The only difference in the elements of the two crimes of possession with the intent to distribute and traEcking based on possession with intent to distribute is that the traEcking charge requires proof additionally that the mixture containing cocaine which a defendant possessed with the intent to distribute weighed fourteen grams or more. G. L. c. 94C, § 32E (6). Conviction of traEcking requires the imposition of a minimum term of imprisonment. G. L. c. 94C, § 32E (6).

2

A minor 1991 amendment to § 32E (b) is not involved as to this May 15, 1990, indictment. St. 1991, c. 395.

3

It appears that the trooper’s report also indicated that the defendant had said that he had bought the cocaine in New York City. The failure to tell the grand jury this fact indicates that the choice of what to tell the grand jury was not made in a way designed to mislead the grand jury.