Commonwealth v. Macdonald

• Decision Date: 18 March 2011
• Docket Number: SJC–10737.
• Citation: 945 N.E.2d 260,459 Mass. 148
• Parties: COMMONWEALTHv.James E. MacDONALD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 148

945 N.E.2d 260

COMMONWEALTH

v.James E. MacDONALD.

SJC–10737.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 9, 2010.Decided March 18, 2011.

Matthew Bové, Quincy, for the defendant.Loretta M. Lillios, Assistant District Attorney (Jennifer R. Handel, Assistant District Attorney, with her) for the Commonwealth.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.IRELAND, J.

The defendant was convicted of distributing a Class D substance (marijuana), G.L. c. 94C, § 32C ( a ), and of committing a drug offense near a school. G.L. c. 94C, § 32J.¹ The defendant appealed, arguing that the judge erred in denying his motions for required findings of not guilty because the testimony of the Commonwealth's expert was inadequate proof that the substance seized was marijuana. He further urges us to require a cautionary jury instruction where the Commonwealth does not introduce forensic evidence of the chemical composition of a drug, and to prohibit the Commonwealth from using precise facts of a case when it presents a hypothetical to an expert for an opinion whether the facts are consistent with a particular crime. We conclude that, in the specific circumstances of this case, the expert's testimony concerning his examination of the substance at issue was sufficient evidence that it was marijuana. We also decline the defendant's invitation to require a cautionary jury instruction concerning forensic testing or to limit the Commonwealth's use of the facts in evidence in forming a hypothetical. Accordingly, we affirm the defendant's convictions and the denial of his motions for a required finding of not guilty.²

Facts and background. We present the essential facts the jury could have found, reserving details for our discussion of the issues raised.

On October 7, 2006, at approximately 4 p.m., three plainclothes police officers, who had experience with narcotics investigations, were in the vicinity of the intersection of Cross Street East and Broadway in the East Somerville section of Somerville. The officers were investigating street-level drug sales because the area had been the site of numerous drug arrests as well as the subject of citizen complaints.

The officers testified to the following. While driving in the area, their attention was drawn to the defendant, who, for ten to twelve minutes, was using a cellular telephone to make calls, while he paced back and forth on a sidewalk along Broadway. The defendant walked across the street and stood near the front door of a fast food restaurant, but his attention was on the restaurant's parking lot. The officers got out of their vehicle and walked to locations near the defendant.

A man driving an Oldsmobile automobile arrived in the parking lot. Immediately after the driver got out of the Oldsmobile, the defendant went over to him and they exchanged greetings for five to six seconds. The driver then went back to his vehicle and leaned inside, after which he walked into the restaurant. The defendant remained near the restaurant and, shortly thereafter, a man driving a red vehicle arrived in the parking lot. The defendant walked over to that vehicle, leaned in the driver's side window, had a conversation of some five to ten seconds with the driver, and exchanged something with him. The red vehicle immediately departed. The defendant then walked back to the Oldsmobile, opened the driver's side door, leaned in and placed something on the seat. Once he emerged from the Oldsmobile, he placed something in his left front pants pocket and began walking away.

Two of the officers stopped the defendant and identified themselves. He denied meeting anyone in a red vehicle. A search of his left front pants pocket produced six twenty dollar bills, but no drugs or drug paraphernalia. The third officer went to the Oldsmobile and observed, in plain view, two clear plastic bags containing what he believed to be marijuana on the driver's seat. There also were the remnants of a burnt marijuana cigarette in the ashtray. The defendant was arrested.

The Commonwealth was allowed to offer the testimony of a nonpercipient expert witness, Sergeant Detective David Montana, to identify the substance the officers seized as marijuana; to describe how drug transactions are carried out at the street level; and to offer an opinion concerning whether a drug transaction had taken place based on facts in evidence posed in the form of a hypothetical question.

At the time of trial, Montana had been a Medford police officer for thirty-nine years and in charge of Medford's drug control unit for twenty years. He had been involved with thousands of narcotics investigations, not only in Medford, but with police departments in surrounding towns, the State police, and the Federal Drug Enforcement Agency. Over the course of his career, he received extensive training in identifying and detecting drugs by odor, sight, and touch. He conducted undercover surveillance thousands of times, where officers follow a target to determine whom he or she meets and observe the target's mannerisms, habits, and body movements that, to an expert, indicate involvement in drug dealing. Montana had witnessed hundreds of drug sales, and had bought heroin, cocaine, and marijuana dozens of times. By interviewing hundreds of drug dealers, he learned the details of the drug trade, including costs and weights of various drugs and packaging preferences.

Montana testified that, when a drug transaction takes place in broad daylight, the dealer will disguise the transaction by engaging in conversation, masking hand-to-hand transactions as a handshake, or using motor vehicles to bring drugs to the street-level dealer.

Concerning marijuana, Montana testified that he took “courses regarding marijuana” and that it is one of the most popular drugs today. He described the various ways it is prepared for smoking. There are different types of marijuana and most of the marijuana in this area is from Mexico. Marijuana from Canada is of a better quality than marijuana from Mexico because it has a higher concentration of THC (tetrahydrocannabinol) and has no twigs and fewer (or no) seeds. Montana detailed the ways marijuana of varying amounts would be packaged. For street-level sales, marijuana is usually packaged in clear plastic (glassine) bags, that are known as “dime bags” that now cost twenty dollars.³

He also testified that a street-level dealer does not carry his entire supply of marijuana with him because he does not want to lose all of it if he is stopped by police. He also does not carry packaging material so that he can argue that he possessed small amounts of a drug for personal use. Instead, using a cellular telephone, the street-level dealer telephones or sends a “text message” to arrange a meeting place as well as to discuss the quantity of drug sought and the selling price with buyers. Motor vehicles are used to bring the drug to the location and leave the area once the deal has taken place. Such middle men are used “most of the time” in the sale of marijuana. Moreover, the fact that an individual involved in a drug transaction has no paraphernalia to allow ingestion of the drug on his person suggests that the drug is for distribution rather than personal use.

Montana examined the two clear plastic bags of marijuana that were seized from the Oldsmobile and introduced in evidence. The following exchange occurred:

The prosecutor: “What are you able to tell us [about the two bags]?”

The witness: “Well, by looking at them and feeling them, I can feel and I can see there's seeds in here. There's some twigs and there's a Glad bag and it's green in color—brown, I should say, in color and to me it looks like marijuana.”

The prosecutor: “What are you basing that opinion on that you believe it to be marijuana?”

The witness: “The color. Marijuana comes in brown, green and gold. This is brown and I can feel the seeds and I can see the seeds and I can feel the twigs. The packaging, in my training and experience that I have the marijuana that I've been involved in, this is how it is packaged.”

The prosecutor: “When you say seeds, what do you mean by that; can you describe that?”

The witness: “The seeds—when you grow marijuana you have leaves and then there's the seeds left there. The seeds really don't have any value in them as far as THC in it. The marijuana itself has the value in it.”

The prosecutor: “Are those seeds specific to the drug marijuana?”

The witness: “Yes, you need the seed to grow the marijuana.”

The prosecutor: “And the ones that you see in that package are they consistent with seeds that you've seen in marijuana that you've seized in the past?”

The witness: “Yes.”

He also stated that each bag was worth twenty dollars.

The defendant did not testify. Relevant to the defendant's appeal is his defense that the Commonwealth presented no chemical analysis establishing that the substance Montana examined was marijuana and that Montana was not a percipient witness to the events leading the defendant's arrest.

Discussion. 1. Sufficiency of expert's testimony. The defendant argues that the judge erred in denying his motions for required findings of not guilty because Montana's testimony that the substance in the clear plastic bags was marijuana was insufficient to support his convictions beyond a reasonable doubt.

In reviewing a motion for a required finding of not guilty, the court must determine whether the Commonwealth's evidence, together with reasonable inferences therefrom, when viewed in a light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged. Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979), and cases cited. “It is sufficient that the evidence permitted the inference which the jury obviously drew against [the defendant].” Commonwealth v. Nelson, 370...