Commonwealth v. Bones

93 Mass.App.Ct. 681

106 N.E.3d 1135

COMMONWEALTH

v.Leonides BONES.

No. 14-P-1169

Appeals Court of Massachusetts, Suffolk..

Argued September 14, 2017

Decided August 3, 2018

Brad P. Bennion, Boston, for the defendant.

Darcy A. Jordan, Assistant District Attorney (Patrick R. Mulligan, Assistant District Attorney, also present) for the Commonwealth.

Present: Wolohojian, Agnes, & Wendlandt, JJ.

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.

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 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

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, 778 N.E.2d 982 (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, 477 N.E.2d 1061 (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 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, 983 N.E.2d 253 (2013). 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, 824 N.E.2d 809 (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 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, 160 N.E. 335 (1928) ; Russell v. New Bedford, 74 Mass. App. Ct. 715, 722, 910 N.E.2d 404 (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, 165 N.E.2d 590 (1960) ; Peters v. Haymarket Leasing, 64 Mass. App. Ct. 767, 775 n.11, 835 N.E.2d 628 (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, 233 N.E.2d 903 (1968), citing G. L. c. 233, § 75. At least one noted authority on the law of evidence has 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, 63 N.E.3d 388 (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, 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 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, 913 N.E.2d 832 (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]...