Com. v. Miller
| Decision Date | 21 June 1976 |
| Parties | COMMONWEALTH v. John D. MILLER. |
| Court | Appeals Court of Massachusetts |
Harvey A. Silverglate, Boston, for defendant.
Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.
Before HALE, C.J., and GRANT and ARMSTRONG, JJ.
The defendant appeals from convictions for unlawful possession of cocaine with intent to sell and unlawful possession of LSD with intent to sell, after a trial pursuant to G.L. c. 278, §§ 33A--33G. 1 There was no error.
The summarize the evidence. A police officer of the town of Amherst stopped a van containing the defendant and four others after he had observed the vehicle's license plate to have a red sticker, which indicated to him that its registration had expired, and observed the defendant run out of the van, grab a puppy and ree nter the van, and heard him then say, 'Let's get going, here comes a cop.' The officer asked the driver for his license and certificate of registration. The driver opened the window slightly and passed out the certificate. He then opened the door and stepped out. The officer smelled marijuana smoke and observed a small clear bag in the driver's shirt pocket containing marijuana. The officer arrested the driver for possession of marijuana and the passengers for being present where they knew that substance was illegally kept and deposited. He also observed the defendant, who was seated in the van, place his hand under a pile of blankets during the arrest process and ordered him to remove it. The officer called for assistance, and the vehicle was searched. 2
The search revealed a knapsack resting on two suitcases located immediately next to where the defendant had been seated behind the driver's seat. The knapsack contained four large and one medium sized bags of marijuana and one LSD tablet. One of the suitcases contained six large and one medium sized bages of marijuana, ten LSD tablets, a scale and empty plastic 'baggies.' The other suitcase, which the defendant admitted belonged to him, contained a shaving kit in which was $4010. That amount was made up of bills of the following denominations: two $100's, twenty-seven $50's, forty-seven $20's, and one hundred fifty-two $10's. Next to the right-hand door of the van the officers found a jug containing marijuana seeds, an ounce of cocaine, and 241 LSD tablets. The total weight of the marijuana found in the van was thirteen or fourteen pounds. An additional $500 was found in the defendant's pocket at the time of his arrest.
The defendant conducted his own defense with the active and able assistance of a member of the bar. The defendant testified that he was in the van only to obtain a ride from Amherst to Boston. He described the money found in the shaving kit as his 'stash' and said that it had been obtained from the proceeds of the liquidation of an organic food store in which he had had an interest. He stated that he had previously stored the money in a tin can near a dump and that he did not believe in banks. He stated that it was his intention to go to Maine after reaching Boston and use the money to purchase land.
The testimony of the defendant and of another defense witness indicated that the defendant had met several of the other riders in the van on about ten previous occasions during the summer of 1971, that the defendant had driven the woman found in the van from Wendell to Amherst and back and forth to Belchertown in his own car on the day of the arrest, and that the defendant has spent several hours during the evening prior to the arrest in a local restaurant where he had met some of the others found in the van.
Several of the defendant's assignments of error were not the subject of exceptions at trial. Such assignments bring nothing before this court, Commonwealth v. Franks, 365 Mass. 74, 76, 309 N.E.2d 879 (1974), and will be reviewed only to prevent 'a substantial risk of a miscarriage of justice.' Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3, 9 (1967). We apply this rule in the same manner, whether the defendant represents himself alone, represents himself with the assistance of counsel (as in the present case), or is represented by counsel. Among these assignments of error were the alleged denial of a speedy trial (as issue not raised at all in the trial court), limitations on the cross-examination conducted by the defendant of the arresting officer, a summary finding of contempt by a defense witness and his expulsin from the courtroom, the denial of the defendant's motion to obtain records of the disposition of the indictments of the others arrested in the van, the sentencing of the defendant under a statute which had been repealed at the time of trial (see G.L. c. 4, § 6, cl. 2), and the imposition of sentences more severe than those imposed on former co-defendants. We have not detected in any of those assignments a risk of a miscarriage of justice such as the Freeman case requires.
The other assignment of error which was not the subject of an exception concerned a part of the judge's charge. The defendant has directed our attention to the following language, 'Now, again, I suggest to you that you have to be satisfied beyond a reasonable doubt as to the innocence or guilt on these (indictments).' However, the judge continued, The defendant contends that the first quoted sentence of the instruction improperly shifted the burden of proof to him. Examining this apparent slip of the tongue in the context of the charge as a whole, we conclude that this passage would not have misled the jury. There were many references in the charge to the Commonwealth's burden of proof which correctly stated that burden. For instance, near the outset of his charge the judge said, We discern no risk of a miscarriage of justice.
The defendant contends that the judge erred by denying his motions for a directed verdict made at the close of the Commonwealth's evidence and again at the close of the defendant's evidence. He argues that there was no evidence connecting him...
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