Commonwealth v. Marques

99 Mass.App.Ct. 1127

170 N.E.3d 353 (Table)

COMMONWEALTH

v.Dustin MARQUES.

20-P-844

Appeals Court of Massachusetts.

Entered: June 7, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Dustin Marques, appeals from his convictions, after a Superior Court jury trial, of trafficking in at least eighteen grams of heroin, G. L. c. 94C, § 32E (c ) (1), and assault and battery, G. L. c. 265, § 13A. Concluding that there was sufficient evidence of the defendant's intent to distribute, that the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice, and that the motion to suppress was properly denied, we affirm.

1. Sufficiency of intent to distribute. "[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).

Under the theory of trafficking advanced here, the Commonwealth had to prove that the defendant knowingly or intentionally possessed a specified amount of heroin, here at least eighteen grams, "with the specific intent to distribute it." Commonwealth v. Ortega, 441 Mass. 170, 174 n.7 (2004). The defendant challenges only the Commonwealth's proof of his intent to distribute the heroin. "A ‘defendant's intent to distribute a controlled substance "is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances developed at the trial." ’ " Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). Accord Commonwealth v. Bones, 93 Mass. App. Ct. 681, 687 (2018), quoting Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 731 (1992) ("Intent is a factual matter that may be proved by circumstantial evidence"). Factors that indicate an intent to distribute include "distinctive packaging ...; possession of large quantities of drugs; the presence of implements or paraphernalia indicative of the drug trade; and the ‘presence of cash ...’ found on the defendant." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841 (2012), quoting Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 327 (2010). A substantial amount of drugs "alone may raise an inference of an intent to distribute." Acosta, supra.

Here, during a search of his person, a police officer found 28.13 grams of heroin mixed with fentanyl in the defendant's coat pocket. The drugs were found in two separate glassine bags, one much larger than the other. When he was asked what the substance in his pocket was, the defendant stated, "it was heroin ... probably mixed with fentanyl, because that's what's out there on the streets now." The Commonwealth's expert witness, a State trooper, testified that 28.13 grams of heroin was more consistent with distribution than with personal use. See Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) (allowing narcotics investigators to testify in drug cases because "[w]hether a certain quantity of drugs is consistent with personal use or with distribution is a matter not within the common experience of jurors"). Explaining why this quantity was more consistent with distribution, the trooper stated, "[I]t's very uncommon for a user simply just to use it to possess that large amount, especially for heroin and fentanyl, if that's what we're talking about. It's a very addictive drug, you know, the chances of overdosing for a user ... every day to have that much product on them, it[’s] just ... too risky and, from what I experienced, it's common users will not purchase that much." The trooper testified that, "normally a user ... would buy anywhere up from a half a gram to maybe ... a half a finger, which would be five grams, for a normal amount of an everyday user." See Commonwealth v. Richardson, 479 Mass. 344, 360 (2018), quoting Commonwealth v. Rugaber, 369 Mass. 765, 770 (1976) ("Typically, ‘[i]ntent to distribute a drug may be inferred from possession of large quantities of that drug’ "); Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 265-266 (2010) (bag containing 13.98 grams of cocaine was "not so small that only an inference of personal use is compelled; nor is it in equipoise with an intent to distribute," but it "properly formed the basis for opinion testimony ... that it was more consistent with distribution"). Contrast Sepheus, 468 Mass. at 166 (quantity and packaging of cocaine alone not enough to show intent to distribute where "the quantity was so small that an average user could consume the cocaine within two hours.... [and the detective] acknowledged that it was less than one day's supply").

Additionally, in the defendant's apartment, the officer found a digital scale, two one hundred dollar bills next to a metal box, empty plastic bags scattered "everywhere, on the floor," some of which were cut, fifty dollars on the defendant's person, "a small tray with a white, powdery substance on it," and a cut straw nearby. The trooper testified that "the presence of plastic bags, cut-corner bags would be consistent with distribution.... The presence of a digital scale would indicate ... that a suspected narcotic dealer is weighing his product before sales to make sure he doesn't get short-changed, to make sure he's keeping tracked and logged of the amount of product he's sending out in exchange for money.... [and] loose cash would be consistent with distribution also."² He also stated, "More than one bag of a narcotic would be an indication of distribution." See Hernandez, 77 Mass. App. Ct. at 265-266 ("acknowledging the innocent purposes of a cellular telephone and cash, an experienced drug officer was allowed to opine that those items, together with the quantity of cocaine found on the defendant, was consistent with distribution"); Commonwealth v. Madera, 76 Mass. App. Ct. 154, 159 (2010) (digital scale, box of sandwich bags, large amount of cash, and roughly one pound of marijuana indicative "that the defendant intended to distribute it and that it was not simply for personal use"). As the evidence was sufficient to allow a reasonable jury to find that the defendant had the intent to distribute, the trial judge properly denied the defendant's motion for a required finding of not guilty.³

2. Closing argument. "Closing argument must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). "Counsel may, however, zealously argue in favor of those inferences favorable to his or her case." Id. "Because the defendant did not object to the prosecutor's closing statement at trial, we review [any error] for a substantial risk of a miscarriage of justice." Commonwealth v. Childs, 94 Mass. App. Ct. 67, 76 (2018), quoting Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 (2018). Although "prosecutors are entitled to argue ‘forcefully for the defendant's conviction,’ closing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts." Commonwealth v. Alvarez, 480 Mass. 299, 305 (2018), quoting Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017).

The defendant takes issue with three statements made by the prosecutor in closing argument. First, the defendant points to the statement, "The last time I checked, they don't sell heroin at Walmart, and it's illegal to sell or possess that amount. Specifically, [eighteen] grams is the statutory amount to prove trafficking. This isn't close, he's got [twenty-eight]. He's not doing [twenty-eight] grams of heroin a week and living."⁴ Second, the defendant quarrels with the prosecutor's statement, "[The defendant] told you that he was an addict and he needed the drugs so bad, but that when he didn't have the money, he just wouldn't use. Does that sound consistent with you in your everyday experiences, an addict can just stop using heroin?" The third statement the defendant challenges is, "one of the things that point to intent to distribute, he knew the purity of the drug. He told the police officers it's mixed with fentanyl. How does he know that?"

The second and third statements were grounded in the evidence. Regarding the second, the defendant testified, "I've had times where I didn't work and where I would not -- I wouldn't be doing drugs, you know, but whenever I had money, I would spend it on drugs." With respect to the third, although the defendant did not identify the exact percentage of the purity of the heroin he possessed, he told the officer "it was heroin, and then he stated that it was probably mixed with fentanyl, because that's what's out there on the streets now." The parties stipulated that the heroin was in fact mixed with fentanyl. These statements by the prosecutor were fair inferences drawn from the evidence presented at trial.

At oral argument, the Commonwealth properly conceded that the first statement should not have been said by the prosecutor. Although there was no evidence specifically demonstrating that consumption of twenty-eight grams of heroin a week would be deadly, the trooper testified that heroin and fentanyl are "very addictive," and that "the chances of overdosing for a user ... every day to have that much product on them ... it's too risky." Moreover, although the prosecutor incorrectly suggested that possession of eighteen grams of heroin by itself constituted the crime of trafficking, there was no substantial risk that the jury convicted the defendant on that basis. Before closing arguments, the judge instructed the jury that the Commonwealth needed to prove...