Com. v. Johnson
| Decision Date | 20 May 1991 |
| Citation | 410 Mass. 199,571 N.E.2d 623 |
| Parties | COMMONWEALTH v. John K. JOHNSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Stobierski for defendant.
Joseph A. Pieropan, Asst. Dist. Atty., for Comm.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
We affirm the conviction of the defendant of trafficking in cocaine in violation of G.L. c. 94C, § 32E.
The defendant's appeal is two-pronged. He argues (1) that his motion for a required finding of not guilty was erroneously denied, and (2) that it was error for the trial judge to permit a police officer to give his opinion that the amount of seized cocaine was not consistent with personal use and was consistent with an intent to distribute.
The jury were warranted in finding that in responding to a call, a police officer from the Pittsfield police department went to a motel where he searched an open part of a fence in the parking lot and found a gray shopping bag containing seventy-one individual bags of cocaine and three separate bags of cocaine. The police officer left the shopping bag where he found it and took up surveillance of the area from the vantage point of a room in the motel. Some hours later, the police officer observed two men approach the bag. The defendant picked up the bag and handed it to the other man, who returned it to the defendant. As the two men left the parking lot, the defendant was carrying the bag, when police approached them. On seeing the police, the defendant threw the bag over a fence. The defendant and his companion were arrested and the bag was seized.
When the police returned to the police station, a police officer conducted a field test of the contents of the bag. At trial, the bag was admitted in evidence and a certificate of analysis of the drugs was introduced in evidence.
1. Motion for required finding of not guilty. In evaluating a motion for a required finding of not guilty, we adhere to the rule that such motion should be denied if the evidence presented by the Commonwealth and viewed most favorably to the Commonwealth, and including all inferences not too remote, would warrant a jury's verdict that the defendant was guilty beyond a reasonable doubt. See Commonwealth v. Clark, 378 Mass. 392, 404, 393 N.E.2d 296 (1979).
The Commonwealth introduced in evidence a certificate of analysis of the seized substance from the Department of Public Health. The certificate provided that the powder in the bags was cocaine. It went on: "The identification of the contents of the 71 plastic bags was determined by analysis of a random sample of 9 plastic bags and the net weight of the 71 plastic bags was derived from the average weight of the randomly sampled plastic bags." The certificate then records the following net weight: 31.33 grams.
The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt the net weight of the drugs. An essential element of the crime of trafficking is that the weight of the cocaine which is the subject of the indictment be at least twenty-eight grams. G.L. c. 94C, § 32E.
General Laws c. 111, § 13 (1988 ed.), provides that the certificate when properly executed shall be "prima facie evidence of the composition, quality, and when requested, the net weight of the narcotic." The defendant first argues that the weight was not "requested." However, the defendant represented at trial by different counsel did not object to the introduction of the certificate and, therefore, it is admissible for its full probative effect. The defendant could have objected to the part of the certificate that indicated the weight. He could have moved to delete that portion but he did not object nor move to strike the reference to the weight. He will not now be heard to complain.
Next, the defendant argues that in any event, a finding of guilty could not, as matter of law, be founded on the certificate. The certificate is prima facie evidence of the weight, among other things. Such prima facie evidence consists of a rebuttable presumption and an inference. Evidence tending to negate the presumption destroys the presumption but the inference is sufficient to avoid a required finding of not guilty. Commonwealth v. Chappee, 397 Mass. 508, 520, 492 N.E.2d 719 (1986). See P.J. Liacos, Massachusetts Evidence 54 (5th ed. 1981).
In circumstances only marginally different from the facts of the present case, the Appeals Court approved of an analysis of only samples to arrive at a total weight of cocaine in Commonwealth v. Shea, 28 Mass.App.Ct. 28, 33-34, 545 N.E.2d 1185 (1989). Procedures not...
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