Com. v. Fernandes

• Decision Date: 15 March 1999
• Docket Number: 97-P-1698,Nos. 97-P-766,s. 97-P-766
• Citation: 707 N.E.2d 371,46 Mass.App.Ct. 455
• Parties: COMMONWEALTH v. Delfino M. FERNANDES (and a companion case 1 ). Plymouth
• Court: Appeals Court of Massachusetts

Page 371

707 N.E.2d 371

46 Mass.App.Ct. 455

COMMONWEALTH v. Delfino M. FERNANDES (and a companion case ¹).

Nos. 97-P-766, 97-P-1698.

Appeals Court of Massachusetts,

Plymouth.

Argued Oct. 7, 1998.

Decided March 15, 1999.

[46 Mass.App.Ct. 456] Robert P. Kidd, Taunton, for Janette Johnson.

Mary E. Mullaney, Assistant District Attorney, for the Commonwealth.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth, submitted a brief.

Robert O. Berger, Boston, for Delfino Fernandes, submitted a brief.

Present: ARMSTRONG, SMITH, BROWN, PERRETTA, & KASS, JJ.

KASS, J.

Delfino M. Fernandes was convicted under a two-count indictment, the first of which, count A, charged him with unlawful distribution of a controlled substance, cocaine (G.L. c. 94C, § 32A[c ] ). Count B charged a subsequent violation of the same offense (G.L. c. 94C, § 32A[d ] ). Although Fernandes has not raised the question, we consider first the sufficiency of the repeat offense indictment because if the indictment is legally deficient, the court is without jurisdiction to try the case. Commonwealth v. Palladino, 358 Mass. 28, 31, 260 N.E.2d 653 (1970). Commonwealth v. Cantres, 405 Mass. 238, 239-240, 540 N.E.2d 149 (1989). A jurisdictional question is one which a court, including an appellate one, is duty bound to consider on its own motion at any time while direct proceedings are still pending. Jamgochian v. Dierker, 425 Mass. 565, 567, 681 N.E.2d 1180 (1997). Tardanico v. Aetna Life & Cas. Co., 41 Mass.App.Ct. 443, 444, 671 N.E.2d 510 (1996). We conclude that the repeat offender indictment, while not skillfully drawn, satisfied the minimum criteria of describing the elements of the offense and informing the accused of the nature of the crime charged. Commonwealth v. Palladino, 358 Mass. at 30-31, 260 N.E.2d 653. Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). Commonwealth v. Burns, 8 Mass.App.Ct. 194, 195, 392 N.E.2d 865 (1979). See Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). ²

What attracted our attention to the repeat offender count of the indictment is its exceptionally abbreviated form and, more particularly, that the form of the indictment is directly challenged in the companion case. The same form of abbreviated indictment was also the subject of challenge in a case which has been decided, ³ and a variation of the repeat offender count, substantially filled out by incorporating the language of G.L. c. 94C, § 32A(d ), is under challenge in two additional cases on the ground that it

does not declaratively say that the accused has committed the offense of distributing cocaine, having been previously convicted of a similar offense. ⁴ All the cases come from Plymouth County. Manifestly, the repeat offender count as it has appeared in indictments written by the office of the District Attorney manufactures appeals at a considerable clip, and we assume that office has, to borrow from computer speak, reconfigured its repeat offender indictment. The form of indictment in the case against Fernandes is prototypical and we set out the indictment exactly in the form in which it was framed:

INDICTMENT

UNLAWFUL DISTRIBUTION OF A CONTROLLED SUBSTANCE

(CLASS B--COCAINE)

GENERAL LAWS CHAPTER 94C, SECTION 32A (c)

COUNT A

UNLAWFUL DISTRIBUTION OF A CONTROLLED SUBSTANCE

(CLASS B--COCAINE)

SUBSEQUENT OFFENSE

GENERAL LAWS CHAPTER 94C, SECTION 32A (d)

COUNT B

At the SUPERIOR COURT, begun and holden at PLYMOUTH, within and for the COUNTY OF PLYMOUTH, on September 19, 1994,

THE JURORS for the Commonwealth of Massachusetts on their oath present that:

DELFINO M. FERNANDES

of DORCHESTER in the COUNTY OF SUFFOLK, on or about AUGUST 5, 1994, at BROCKTON in the COUNTY OF PLYMOUTH, not being authorized by the provisions of Chapter 94C of the General Laws, did knowingly or intentionally manufacture, distribute, or dispense a controlled substance in CLASS B, to wit: COCAINE.

(See Count B)

COUNT B

UNLAWFUL DISTRIBUTION OF A CONTROLLED SUBSTANCE

(CLASS B--COCAINE)

(SUBSEQUENT OFFENSE)

GENERAL LAWS CHAPTER 94C, SECTION 32A (d)

And the JURORS, aforesaid, for the Commonwealth of Massachusetts, on their Oath, aforesaid, do further present, That:

DELFINO M. FERNANDES

of DORCHESTER in the COUNTY OF SUFFOLK, the said DELFINO M. FERNANDES having been previously convicted of a similar offense.

A TRUE BILL

The arguable flaw in count B of the indictment is that it does not, within the corners of count B, restate the substantive offense which the accused had previously offended, namely, unlawful distribution of a controlled substance. That failure, as we understand the position of those who challenge the form of count B, fails to describe the nature of the crime and leaves the accused uninformed of what similar offense he is charged with having been convicted.

Courts do not examine indictments or complaints with the indulgence granted to notice pleading, but neither do they apply to the process the literalness associated with Baron Parke. See Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 319, 458 N.E.2d 338 (1983). Here, a reader of count B of the indictment would require First, there is the caption. It speaks of unlawful distribution of a controlled substance (class B--cocaine) and sets forth the statute violated, G.L. c. 94C, § 32A(d ). That statute announces as a separate crime, conviction "of violating the provisions of subsection (c) [which includes unlawful distribution of cocaine] after one or more convictions of manufacturing, distributing, dispensing or possessing with the intent to manufacture, distribute, or dispense a controlled substance ... or of any offense of any other jurisdiction ... which is the same as or necessarily includes, the elements of said offense...." The caption also tells us this is a subsequent offense. The caption of an indictment, we are told by the defendant Johnson, does not carry the indictment. Under rule 4(a) of the Massachusetts Rules of Criminal Procedure, an indictment must contain a caption together "with a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof." As, however, the rule requires a caption, that caption must have some utility, and neither the accused nor a court may simply ignore it. The caption on an indictment has been used in aid of interpreting the text of an indictment. Commonwealth v. Ortiz, 39 Mass.App.Ct. 70, 73-74, 653 N.E.2d 1119 (1995). In Commonwealth v. Zwickert, 37 Mass.App.Ct. 364, 366 n. 3, 639 N.E.2d 1102 (1994), we said that for purposes of decision in that case we would treat the caption as irrelevant, implying that such treatment was not the norm. Were there a discordance between the caption and the text in the body of the indictment, the text would govern and supersede the caption, Commonwealth v. McClaine, 367 Mass. 559, 560, 326 N.E.2d 894 (1975); Commonwealth v. Lovett, 374 Mass. 394, 399, 372 N.E.2d 782 (1978), but there is no discordance in this case. Accordingly, we look to the caption for assistance and see that it illuminates the spare text of the indictment.

practiced obtuseness not to understand the nature of the offense charged.

As to that substantive text, the structure of the indictment is important. The repeat offender charge is not the subject of a separate indictment; rather it is a separate count of the same indictment. Count A charges unlawful distribution of cocaine. When count B adds, "having been previously convicted of a similar offense," there can be no doubt that it means the defendant was convicted previously of an offense similar to distribution of cocaine, and that the crime described in count A is a repeat offense. Incorporation by reference among counts in an indictment is permissible. Blitz v. United States, 153 U.S. 308, 317, 14 S.Ct. 924, 38 L.Ed. 725 (1894). United States v. Caldwell, 544 F.2d 691, 695 (4th Cir.1976). United States v. Abrahams, 466 F.Supp. 552, 559 (D.Mass.1978). The count B indictment, while possibly following to a fault the instruction of Mass.R.Crim.P. 4(a) to be concise, is nevertheless not a shadow indictment; it clouds nobody's mind. Indeed, when read as a whole, fairly athletic word-chopping is necessary to read the absence of a statement of a recognizable offense or confusion into the indictment. It is, perhaps, of some significance that neither the defendant Fernandes nor his counsel thought themselves uninformed or confused by the indictment. See and compare, Commonwealth v. Palladino, 358 Mass. at 30-32, 260 N.E.2d 653; Commonwealth v. Bacon, 374 Mass. 358, 360, 372 N.E.2d 780 (1978); Commonwealth v. Michaud, 389 Mass. 491, 492 n. 2, 451 N.E.2d 396 (1983); Commonwealth v. Green, 399 Mass. at 566-568, 505 N.E.2d 886; Commonwealth v. Cantres, 405 Mass. at 240-241, 540 N.E.2d 149; Commonwealth v. Burns, 8 Mass.App.Ct. at 195-197, 392 N.E.2d 865; Commonwealth v. Lombardo, 23 Mass.App.Ct. 1006, 1008, 505 N.E.2d 215 (1987). We conclude that count B of the indictments against Fernandes and Johnson is sufficient.

Other Issues in the Fernandes Case

Description of the defendant Fernandes as Hispanic-looking did not constitute catering to ethnic prejudice. See Commonwealth v. Ramos, 31 Mass.App.Ct. 362, 365, 577 N.E.2d 1012 (1991). Contrast Commonwealth v. Lara, 39 Mass.App.Ct. 546, 549-552, 658 N.E.2d 692 (1995). There was no risk, let alone a substantial one, of a miscarriage of justice because the certificate of a drug analyst from the Department of Public

Health, which was admitted without objection, had the defendant's name on it. Most often, a drug analysis is made in connection with a particular case and would have the defendant's name on it as a notation of the purpose for which the analysis had been made. The appearance of the defendant's name on the certificate of analysis does not [46 Mass.App.Ct. 461] lend itself to an inference about what the defendant had to do with the drugs analyzed. That the defendant...