Search and seizure – Stop – Distribution of heroin

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Where the defendant appeals from his conviction of possession of a class A controlled substance with intent to distribute and being a second or subsequent offender, the convictions must be upheld despite his contentions that (1) 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; (2) 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; and (3) his motion for a new trial was improperly denied.

“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. … Here, Sergeant Dunn testified without objection that in the city of Chelsea, drinking alcohol in public is an arrestable offense. … 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. … 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. …

“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 [defendant Leonides] 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. …

“ … 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 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.

“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.

“ … As the motion judge correctly found, even assuming that this is newly discovered evidence, … the information was, at best, impeachment evidence that does not rise to the level of requiring a new trial. …

Commonwealth v. Bones (Lawyers Weekly No. 11-100-18) (18 pages) (Agnes, J.) Motion to suppress heard by Sanders, J., the cases tried before her and a motion for a new trial considered by her. Brad P. Bennion on appeal for the defendant; Darcy A. Jordan (Patrick R. Mulligan also present) for the commonwealth (Docket No. 14-P-1169) (Aug. 3, 2018).