Com. v. Roman

• Decision Date: 23 March 1993
• Citation: 609 N.E.2d 1217,414 Mass. 642
• Parties: COMMONWEALTH v. Victor L. ROMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1217

609 N.E.2d 1217

414 Mass. 642

COMMONWEALTH v. Victor L. ROMAN.

Supreme Judicial Court of Massachusetts Worcester.

Argued Dec. 7, 1992.

Decided March 23, 1993.

Woodrow Brown, Jr., West Bridgewater, for defendant.

William E. Laughlin, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

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(b)(1). ² See Commonwealth v. Brzezinski, 405 Mass. 401, 402, 540 N.E.2d 1325 (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, 439 N.E.2d 251 (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, 430 N.E.2d 1195 (1982); Commonwealth v. Club Caravan, Inc., 30 Mass.App.Ct. 561, 566-568, 571 N.E.2d 405 (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(b ). See Commonwealth v. Chappee, 397 Mass. 508, 521-522, 492 N.E.2d 719 (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, 488 N.E.2d 34 (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, 477 N.E.2d 972, cert. denied sub nom. Aiello v. Massachusetts 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (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, 555 N.E.2d 559 (1990); Commonwealth v. Bongarzone, 390 Mass. 326, 349-350, 455 N.E.2d 1183 (1983); Commonwealth v. Scala, 380 Mass. 500, 511, 404 N.E.2d 83 (1980); Commonwealth v. Rugaber, 369 Mass. 765, 770, 343 N.E.2d 865 (1976); Commonwealth v. Ellis, 356 Mass. 574, 578, 254 N.E.2d 408 (1970); Commonwealth v. James, 30 Mass.App.Ct. 490, 499, 570 N.E.2d 168 (1991); Commonwealth v. Poole, 29 Mass.App.Ct. 1003, 1004, 563 N.E.2d 253 (1990); Commonwealth v. Allen, 28 Mass.App.Ct. 589, 596, 554 N.E.2d 854 (1990); Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758, 470 N.E.2d 811 (1984); Commonwealth v. Gill, 2 Mass.App.Ct. 653, 657, 318 N.E.2d 628 (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, 475 N.E.2d 81 (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, 571 N.E.2d 623 (1991) (seventy-one individual bags of cocaine); Commonwealth v. Pratt, supra (heroin packaged in 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, 309 N.E.2d 214 (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 18 Mass.App.Ct. at 758-759, 470 N.E.2d 811; Commonwealth v. Nichols, 4 Mass.App.Ct. 606, 607, 356 N.E.2d 464 (1976). Other supporting evidence of intent to distribute has included the "high calibre" of the drug (Commonwealth v. Sendele, supra 18 Mass.App.Ct. at 758, 470 N.E.2d 811); statements of the defendant (Commonwealth v. Bongarzone, supra 390 Mass. at 329, 455 N.E.2d 1183; Commonwealth v. Nichols, supra 4 Mass.App.Ct. at 614, 356 N.E.2d 464); behavior of the defendant ( Commonwealth v. Fogarty, 25 Mass.App.Ct. 693, 701, 521 N.E.2d 1058 [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 18 Mass.App.Ct. at 759, 470 N.E.2d 811). 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 390 Mass. at 331, 455 N.E.2d 1183 (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 25 Mass.App.Ct. at 696, 521 N.E.2d 1058 (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., 18 Mass.App.Ct. at 758, 470 N.E.2d 811. Some cases suggest that a large amount is one that is inconsistent with personal use. In Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 433 N.E.2d 1234 (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, 433 N.E.2d 1234) would not support an inference of intent to distribute in the absence of any other evidence. Id. at 423-424, 433 N.E.2d 1234. See also Commonwealth v. Murphy, 34 Mass.App.Ct. 16, 18, 605 N.E.2d 1254 (1993) (following Wooden ); Commonwealth v. Tripp, 14 Mass.App.Ct. 997, 998, 440 N.E.2d 1286 (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, 604 N.E.2d 1317 (1992) (small amount of...