Commonwealth v. Bones ( 2018 )

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14-P-1169 Appeals Court
COMMONWEALTH vs. LEONIDES BONES.
No. 14-P-1169.
Suffolk. September 14, 2017. - August 3, 2018.
Present: Wolohojian, Agnes, & Wendlandt, JJ.
Controlled Substances. Practice, Criminal, Motion to suppress,
Required finding, New trial, Assistance of counsel,
Argument by prosecutor. Evidence, Judicial notice.
Municipal Corporations, By-laws and ordinances. Witness,
Impeachment.
Indictments found and returned in the Superior Court
Department on June 19, 2012.
A pretrial motion to suppress evidence was heard by Janet
L. Sanders, J.; the cases were tried before her; and a motion
for a new trial was considered by her.
Brad P. Bennion for the defendant.
Darcy A. Jordan, Assistant District Attorney (Patrick R.
Mulligan, Assistant District Attorney, also present) for the
Commonwealth.
2
AGNES, J. This is an appeal by the defendant, Leonides
Bones, from his conviction, after a trial by jury, of possession
of a class A controlled substance with intent to distribute, see
G. L. c. 94C, § 34, and, following a subsequent jury-waived
trial conducted in accordance with G. L. c. 278, § 11A, of being
a second or subsequent offender.1 The defendant argues that his
motion to suppress was improperly denied because the police were
not justified in stopping him on a public sidewalk for drinking
an alcoholic beverage as that conduct is not a criminal
violation under State or local law. The defendant further
argues that even if the motion to suppress was properly denied,
there was insufficient evidence presented at trial to permit the
jury to infer that he intended to distribute the heroin found on
his person. Finally, the defendant also appeals the order
denying his motion for a new trial arguing that his motion was
improperly denied. For the reasons set forth below, we affirm.
The relevant facts are set forth in connection with each of
the defendant's several arguments.
1 The jury also found the defendant guilty of possession of
a class A controlled substance with intent to distribute in a
school zone, see G. L. c. 94C, § 32J, but the judge ordered that
a not guilty finding be entered as to that conviction after
concluding that St. 2012, c. 192, § 30, which reduced the school
zone area from 1,000 feet to 300 feet, was applicable.
3
Discussion. 1. Motion to suppress. The defendant does
not take issue with the facts found by the motion judge, which
are supported by the evidence.
On April 4, 2012, Sergeant Brian Dunn, then a patrolman
with the Chelsea police department, was in uniform and operating
a marked cruiser when he responded to a call from a party
reporting possible drug activity. The caller reported that the
offender was a black male wearing a white T-shirt, shorts, and a
hat. On Division Street, in the vicinity of Bellingham Square,
Sergeant Dunn observed a black male matching the caller's
description. From prior encounters, Sergeant Dunn recognized
the man as the defendant. Sergeant Dunn observed the defendant
"drinking out of a nip type bottle of alcohol" while he was
walking down the sidewalk. Sergeant Dunn stopped his cruiser
and got out to speak with the defendant. After seeing Sergeant
Dunn approach, the defendant said, "I'm sorry, I didn't see you.
I'll dump it out," and began dumping contents of the bottle of
alcohol onto the sidewalk. Sergeant Dunn did not order the
defendant to stop drinking the alcohol or make any other show of
authority. Sergeant Dunn testified without objection that
"drinking alcohol in public is an arrestable offense in the
[c]ity of Chelsea." He then detained the defendant to see
whether he had any active warrants. After determining that the
defendant did have an active warrant for his arrest, Sergeant
4
Dunn and other officers who had arrived on scene arrested the
defendant on the warrant and transported him to Chelsea police
headquarters.
At the police station, the officers conducted an inventory
of the defendant's personal property. The defendant had $209 on
his person. The currency was separated into bundles of small
denominations "like a stack of [fifteen dollars], a stack of
[twenty dollars], a stack of [fifteen dollars], like that in
each pocket." Sergeant Dunn testified that he had seen United
States currency bundled like that in the past "and it's usually
that way when it's involved in drug activity." In accordance
with departmental policy, the officers removed the defendant's
shoes and took his belt before he was placed in a cell. The
officers noticed a bulge protruding from the defendant's sock;
when asked what it was, the defendant removed his sock and threw
it to the floor. In his sock, the police found a large plastic
bag filled with fifteen individually wrapped smaller bags of
heroin.2
2 At oral argument, the defendant waived any challenge to
the validity of the seizure of his sock at the police station.
In view of the judge's finding that the defendant removed his
sock and threw it to the cell floor when the police asked him
about the bulge, the seizure did not constitute a search. See
Commonwealth v. Battle, 365 Mass. 472, 475 (1974).
5
The defendant's argument on appeal is that Sergeant Dunn
was not justified in detaining him to check for warrants because
drinking in public is not a crime under either the General Laws
of the Commonwealth or the ordinances of the city of Chelsea.
The defendant relies for support on a document that appears in
an addendum to his brief on appeal, which he describes as the
pertinent city of Chelsea ordinance. The same material appears
in the Commonwealth's brief on appeal. A copy of the city of
Chelsea ordinance was not offered in evidence during the hearing
on the motion to suppress.
The defendant's argument fails for several reasons. First
and foremost, the defendant overlooks the testimony by Sergeant
Dunn, credited by the judge, that drinking an alcoholic beverage
on the street or a sidewalk in the city of Chelsea is a criminal
offense. In Massachusetts, the contents of a municipal bylaw or
ordinance may be proved by oral testimony. See Commonwealth v.
Rushin, 56 Mass. App. Ct. 515, 518 & n.6 (2002) (officer's
testimony that defendant's drinking can of beer while sitting in
car violated city ordinance was sufficient to prove contents of
municipal law). Contrast Commonwealth v. Perretti, 20 Mass.
App. Ct. 36, 40 (1985) (criminal conviction for violating
municipal ordinance proscribing "peeping and spying" was invalid
because there was no evidence of contents of ordinance either in
oral or documentary form). Here, Sergeant Dunn testified
6
without objection that in the city of Chelsea, drinking alcohol
in public is an arrestable offense. See G. L. c. 272, § 59, as
appearing in St. 1981, c. 629 (providing that person who, in
public, willfully violates ordinance "the substance of which is
the drinking or possession of alcoholic beverage," is subject to
arrest). See also Commonwealth v. Jones, 83 Mass. App. Ct. 296,
296 n.1 (21013). The detention of the defendant for purposes of
conducting a check for active warrants therefore was valid,
because Sergeant Dunn had probable cause to arrest the defendant
for violating the ordinance prior to his detention. See
Commonwealth v. Charros, 443 Mass. 752, 765 (2005).
Accordingly, Sergeant Dunn's subsequent arrest of the defendant
based on an outstanding warrant was valid. For these reasons,
the defendant's motion to suppress properly was denied.
While what has been said is sufficient to dispose of the
defendant's argument that he was unlawfully detained before the
police discovered there was an outstanding warrant for his
arrest, we add this additional observation about municipal
ordinances and bylaws. Courts are required to take judicial
notice of the General Laws of the Commonwealth, statutes, and
other public acts of the Legislature, the common law, rules of
court, the Code of Massachusetts Regulations, and Federal
statutes. Furthermore, courts will take judicial notice of the
contents of Federal regulations, the laws of foreign
7
jurisdictions, legislative history, and municipal charters and
charter amendments when this material is called to their
attention. See Mass. G. Evid. § 202(a)(1) & (2) (2018).
However, the general rule here in Massachusetts is that in the
absence of statutory authorization, a court will not take
judicial notice of a municipal ordinance. E.g., Brodsky v.
Fine, 263 Mass. 51, 54 (1928); Russell v. New Bedford, 74 Mass.
App. Ct. 715, 722 (2009). See Mass. G. Evid. § 202(c) (2018).3
The law has traditionally treated municipal ordinances as a
"peculiar species of fact, requiring formal proof" because those
materials tended to not be readily available to judges.
2 McCormick on Evidence § 335, at 334 (K.S. Broun ed., 7th ed.
2013). See, e.g., Passanessi v. C.J. Maney Co., 340 Mass. 599,
604 (1960); Peters v. Haymarket Leasing, 64 Mass. App. Ct. 767,
775 n.11 (2005). Ordinarily, the contents of a municipal
ordinance or bylaw is proved by offering an attested copy of the
same as an exhibit. See Mariano v. Building Inspector of
Marlborough, 353 Mass. 663, 666 (1968), citing G. L. c. 233,
§ 75. At least one noted authority on the law of evidence has
3 For the national perspective, see 6 McQuillen, Municipal
Corporations § 22.18 (3d ed. Supp. 2017) (collecting cases); 2
Wharton's Criminal Evidence § 5:34 (15th ed. Supp. 2017) (same);
Jones on Evidence § 2:85 (7th ed. Supp. 2017) (same); 2
Sutherland, Statutory Construction § 39.5 (7th ed. & Supp. 2017-
2018) (same).
8
observed "that as these materials become more accessible, the
tendency is toward permitting the judges to do what perhaps they
should have done in the beginning, that is, to rely on the
diligence of counsel to provide the necessary materials, and
accordingly to take judicial notice of all law." 2 McCormick on
Evidence, supra. We have noted that "reliable versions of
municipal ordinances and by-laws now may be as generally
accessible as statutes." Halbach v. Normandy Real Estate
Partners, 90 Mass. App. Ct. 669, 675 n.5 (2016).4 The time may
have come for the rule prohibiting judicial notice of municipal
ordinance and bylaws to be revisited by the Supreme Judicial
Court.
Even if we were to consider the material that both parties
have included in their briefs and described as the city of
Chelsea ordinance, it is not inconsistent with Sergeant Dunn's
testimony that drinking in public is a criminal offense in
Chelsea. The defendant misunderstands language in that material
that provides a civil alternative to what otherwise would be a
criminal violation. A municipal ordinance or bylaw that
provides a criminal penalty for a violation by, for example,
4 See, e.g., https://www.mass.gov/guides/massachusetts-city-
and-town-ordinances-and-bylaws [https://perma.cc/K6BT-7XAB]
(comprehensive collection of Massachusetts city and town
ordinances and bylaws prepared by trial court law libraries).
9
setting forth a schedule of fines, may also provide for a
noncriminal, civil disposition of the violation. See G. L.
c. 40, § 21D.5 See also G. L. c. 277, § 70C.6 The existence of
5 General Laws c. 40, § 21D, as amended by St. 1992, c. 133,
§ 370, provides, in pertinent part:
"Any city or town may by ordinance or by-law not
inconsistent with this section provide for non-criminal
disposition of violations of any ordinance or by-law or any
rule or regulation of any municipal officer, board or
department the violation of which is subject to a specific
penalty.
"Any such ordinance or by-law shall provide that any person
taking cognizance of a violation of a specific ordinance,
by-law, rule or regulation which he is empowered to
enforce, hereinafter referred to as the enforcing person,
as an alternative to initiating criminal proceedings shall,
or, if so provided in such ordinance or by-law, may, give
to the offender a written notice to appear before the clerk
of the district court having jurisdiction thereof at any
time during office hours, not later than twenty-one days
after the date of such notice.... Such notice shall be
signed by the enforcing person, and shall be signed by the
offender whenever practicable in acknowledgment that such
notice has been received.
"The enforcing person shall, if possible, deliver to the
offender a copy of said notice at the time and place of the
violation. If it is not possible to deliver a copy of said
notice to the offender at the time and place of the
violation, said copy shall be mailed or delivered by the
enforcing person, or by his commanding officer or the head
of his department or by any person authorized by such
commanding officer, department or head to the offender's
last known address, within fifteen days after said
violation. Such notice as so mailed shall be deemed a
sufficient notice, and a certificate of the person so
mailing such notice that it has been mailed in accordance
with this section shall be prima facie evidence thereof."
6 General Laws c. 277, § 70C, as amended through St. 2005,
c. 54, § 3, provides in part that "[u]pon oral motion by the
10
an alternative civil process for the disposition of a violation
of an ordinance or bylaw establishing criminal liability does
not mean that the police cannot proceed with enforcement of the
criminal sanction by subjecting violators to arrest pursuant to
G. L. c. 272, § 59. See Commonwealth v. Weston W., 455 Mass.
24, 29 (2009). Contrast, G. L. c. 94C, § 32N (directing police
departments to enforce G. L. c. 94C, § 32L [possession of less
than one ounce of marijuana] in accordance with the noncriminal
provisions of G. L. c. 40, § 21).7
2. Sufficiency of the evidence. The defendant next argues
that the evidence presented against him at trial was not
sufficient to prove beyond a reasonable doubt that he intended
to distribute the heroin found in his sock at booking. We
disagree.
commonwealth or the defendant at arraignment or pretrial
conference, or upon the court's own motion at any time, the
court may, unless the commonwealth objects, in writing, stating
the reasons for such objection, treat a violation of a municipal
ordinance, or by-law or a misdemeanor offense as a civil
infraction." There are a series of criminal statutes listed in
§ 70C which are exempted from this alternative procedure.
7 Because Sergeant Dunn had the authority to arrest the
defendant for drinking alcohol in public in violation of the
Chelsea city ordinance, the defendant's claim that trial counsel
was ineffective for failing to discover that it was not an
arrestable offense must fail. See Commonwealth v. Eddington, 71
Mass. App. Ct. 138, 147 (2008).
11
In reviewing the sufficiency of the evidence, the question
is "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319
(1979). "Intent is a factual matter that may be proved by
circumstantial evidence." Commonwealth v. Gonzales, 33 Mass.
App. Ct. 728, 731 (1992), quoting from Commonwealth v. LaPerle,
19 Mass. App. Ct. 424, 427 (1985).
Here, the defendant was found in possession of 1.49 grams
of heroin.8 However, "[t]he fact that the amount of drugs seized
was small does not, by itself, require a finding of not guilty
to so much of the indictment as states 'intent to distribute.'
A dealer's inventory of drugs may have been reduced before his
arrest to a small amount by a number of sales." Ibid. A
detective with the Chelsea police department provided expert
testimony indicating that the manner in which the drugs were
packaged -- fifteen individually wrapped plastic bags inside of
a larger plastic bag -- was consistent with possession with an
intent to distribute. See ibid. (ten glassine bags bundled by
8 A Chelsea police detective testified that the street value
of the drugs at the time of the defendant's arrest was
approximately $300.
12
elastic band evidence of intent to distribute). Moreover, the
detective testified without objection that in his experience,
someone possessing drugs for personal use in Chelsea would
typically have the drugs in a single bag and would also possess
paraphernalia to use the drugs. The defendant was not found
with any paraphernalia on his person that would allow him to
inject or otherwise ingest the heroin. See Commonwealth v.
Labitue, 49 Mass. App. Ct. 913, 914 (2000). The detective
further described the area in which the defendant was arrested
as a high drug activity area. See Commonwealth v. Dancy, 75
Mass. App. Ct. 175, 178 (2009). Finally, the defendant was
found with $209, $100 of which was located in his wallet, and
$109 of which was located in his pocket and stacked in fifteen
and twenty dollar denominations, which is consistent with the
detective's testimony that each baggie of heroin possessed by
the defendant had an approximate street value of twenty dollars.
See Commonwealth v. Arias, 29 Mass. App. Ct. 613, 619 n.10
(1990).
Based on the foregoing, the Commonwealth presented
sufficient evidence to prove beyond a reasonable doubt that the
defendant possessed the heroin with the intent to distribute and
the defendant's motion for a required finding of not guilty was
properly denied.
13
3. Motion for a new trial. The defendant argues that his
motion for a new trial was improperly denied by the motion
judge, who also presided over the defendant's trial.
A judge "may grant a new trial at any time if it appears
that justice may not have been done." Mass.R.Crim.P. 30(b), 365
Mass. 780 (1974). Our review of a decision to deny a motion for
a new trial is limited to determining whether the motion judge
"committed an abuse of discretion or a significant error of
law." Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017),
quoting from Commonwealth v. Dejesus, 468 Mass. 174, 178 (2014).
We grant special deference to a judge's decision on a motion for
a new trial where, as here, the motion judge also acted as the
trial judge. See ibid.
a. Ineffective assistance of counsel. The defendant
argues that trial counsel was ineffective for failing to
introduce a Social Security letter indicating that he began
receiving Social Security benefits in the amount of $993 per
month in December, 2012, and other Social Security documents
"show[ing] benefits to Mr. Bones over the years" as evidence of
the defendant's income in an attempt to account for the money
found on the defendant's person during booking.
A defendant complaining of ineffective assistance must
establish (1) "serious incompetency, inefficiency, or
inattention of counsel -- behavior of counsel falling measurably
14
below that which might be expected from an ordinary fallible
lawyer . . ." and (2) that it "likely deprived the defendant of
an otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the
Commonwealth's argument in relation to the cash found on the
defendant focused on the way in which the bills were folded in
groups of fifteen or twenty dollars, suggestive of a series of
individual transactions consistent with the testimony about the
cost of an individual bag of heroin purchased on the street.
The Commonwealth did not refer to the defendant's employment
status, nor argue that due to being unemployed his possession of
$209 in cash could not be explained other that by assuming it
was the proceeds of illegal drug sales. Moreover, the
prosecutor did not make any reference to the defendant's
employment status in the Commonwealth's closing argument.
Finally, the Social Security letter in the record before us does
not cover the period during which the defendant was arrested, as
the letter indicates that he began receiving Social Security
benefits in December, 2012, and the defendant was arrested in
April, 2012. The letter alone thus does not provide an
alternative explanation as to how the defendant came to possess
the money found on his person. While the defendant's trial
counsel indicated in her affidavit that other Social Security
records would have been helpful to the defendant had they been
15
introduced in evidence, the defendant has failed to prove how
the contents of those records would have been helpful to the
defense, or to show that such records even exist. The motion
judge did not abuse her discretion in finding that defense
counsel was not ineffective for failing to submit in evidence
documents concerning the defendant's receipt of Social Security
benefits.9
b. Testifying chemist's credentials. The defendant
further argues that his motion for a new trial should have been
allowed on the basis that newly discovered evidence cast doubt
on the defendant's conviction. The defendant argues that the
testifying chemist falsely asserted at trial that she earned a
bachelor's degree in chemistry, when she was in fact awarded a
bachelor's degree in sociology.10
9 The defendant argued below that trial counsel was
ineffective for failing to request a voir dire of the Chelsea
police detective who testified as an expert witness at trial.
The defendant concedes on appeal that a voir dire was in fact
requested and held prior to the detective providing expert
witness testimony. The defendant now attempts to argue that
police witnesses should not be allowed to offer expert opinion
testimony as to whether the drugs possessed by the defendant
were consistent with an intent to distribute. There is no merit
to the defendant's argument. See, e.g., Commonwealth v.
Johnson, 410 Mass. 199, 202 (1991).
10The defendant provided both the motion judge and this
court with transcripts from a motion hearing in a separate case
involving the same chemist. Essentially, the chemist stated
that she completed all the necessary degree requirements to earn
a bachelor of science degree in chemistry, but, unbeknownst to
her, the college she attended never awarded her the degree.
16
"A defendant seeking a new trial on the ground of newly
discovered evidence must establish both that the evidence is
newly discovered and that it casts real doubt on the justice of
the conviction." Commonwealth v. Grace, 397 Mass. 303, 305
(1986). As the motion judge correctly found, even assuming that
this is newly discovered evidence, see id. at 306 (newly
discovered evidence is evidence not reasonably discoverable by
defendant at time of trial), the information was, at best,
impeachment evidence that does not rise to the level of
requiring a new trial. See Commonwealth v. Simmons, 417 Mass.
60, 72 (1994) ("Newly discovered evidence that tends merely to
impeach the testimony of a witness does not ordinarily warrant a
new trial").
c. Commonwealth's closing argument. The defendant makes
numerous arguments relating to the propriety of the
Commonwealth's closing argument, all of which lack precision.
Our understanding of the defendant's argument is that the
defendant objects to the following: (1) the prosecutor's
argument that it was unfair that the credibility of the
testifying chemist and police officers was being undermined by
Annie Dookhan's malfeasance, see Commonwealth v. Scott, 467
Mass. 336 (2013); (2) the prosecutor's statement that it is not
17
the jury's job "to give anybody a break"; and (3) the
prosecutor's statement that Dookhan's misconduct and its
aftermath are "a chilling thing for our whole society."
As for the defendant's first argument, the prosecutor is
entitled to base his argument on the evidence and the fair
inferences drawn therefrom. See Commonwealth v. Kozec, 399
Mass. 514, 516 (1987). Here, the defendant attempted to
undermine the validity of the drug certificate and the testimony
of the Commonwealth's witnesses by referencing the misconduct of
Dookhan. The prosecutor properly argued that the evidence
elicited at trial indicated that Dookhan did not taint the drug
samples admitted in evidence, and that the chemist reported
Dookhan's misconduct to her supervisor. The Commonwealth's
closing argument was proper in this respect, as it was based on
the evidence admitted at trial and the fair inferences drawn
therefrom. The defendant's second argument must also fail
because the prosecutor was entitled to argue that the evidence
showed that the defendant was guilty in spite of Dookan's
misconduct and that the jurors have a duty to make a
determination as to the defendant's guilt based on the
admissible evidence before them. See Commonwealth v. Payton, 35
Mass. App. Ct. 586, 597-598 (1993). Third, the prosecutor's
statement that Dookhan's misconduct is a "chilling thing for our
whole society" was best left unsaid, as it was arguably based on
18
the prosecutor's knowledge of events outside of the record in
this case. However, we do not believe that this statement
prejudiced the defendant because, as the evidence showed,
Dookhan was not involved in the testing of the drugs in this
case. Furthermore, the judge gave a strong curative instruction
indicating that the evidence about Dookhan and the Hinton Drug
lab were properly admitted as relevant to the issues before the
jury in response to defense counsel's objection to this
statement.11 See Kozec, supra at 518. Finally, we note that the
Commonwealth's closing argument, while critical of the defense
mounted by the defendant, did not "constitute[] an overly
aggressive response" to the defendant's challenging of the
validity of the drug certificate and testimony of the chemist.
Commonwealth v. Lopes, 478 Mass. 593, 607 (2018).
Judgment affirmed.
Order denying motion for new
trial affirmed.
11During trial, defense counsel was permitted to offer
evidence of Annie Dookhan's misconduct at the Hinton Drug lab,
including testimony elicited during the recross-examination of
the Commonwealth's expert indicating that the lab remained an
active crime scene at the time of trial. The prosecutor was
free to argue to the jury that Dookhan's misconduct had no
bearing on the drug testing done in this case. However, insofar
as the prosecutor's comments indicated to the jury that it
simply should not consider the misconduct of Dookhan in the
context of this case, the judge appropriately instructed the
jury that the evidence was properly admitted and could be
weighed and considered accordingly.