Commonwealth v. Richardson
94 N.E.3d 819
Mass.2018Background
- Joshua Richardson, a certified medical marijuana patient with a hardship cultivation registration, was arrested after police responded to his 911 call reporting a home invasion and discovered a 22-plant basement grow, high-intensity lights, a tent, fertilizer, plastic baggies, and a digital scale; police also found $2,135 on him.
- Richardson said he had a medical certification (July 2, 2013) authorizing cultivation sufficient for a 60-day supply (presumptively ten ounces); at the time no dispensaries were operating in Massachusetts.
- Police secured the house after finding grow equipment and observed other items (autoclave, pressure cooker, purported mushroom grow); Richardson invoked his right to counsel but made unsolicited statements acknowledging his registration.
- A search warrant was obtained based on an affidavit asserting the grow exceeded a personal sixty-day supply; officers seized 22 plants and related equipment; charges were unlawful cultivation and possession with intent to distribute.
- At trial, experts disagreed and gave speculative testimony about likely yield from the plants; the girlfriend testified Richardson rarely used marijuana and had limited legitimate income; the jury convicted on both counts.
- On appeal Richardson argued lack of probable cause for the complaint/warrant, erroneous jury instructions (particularly re: unlawful cultivation), insufficient evidence, and that the 60-day supply standard is unconstitutionally vague as applied.
Issues
| Issue | Commonwealth's Argument | Richardson's Argument | Held |
|---|---|---|---|
| Probable cause for search warrant and complaint | Affidavit and police reports (number of plants, grow conditions, expert opinion, presence of scale/baggies, claimed home invasion into basement) provided substantial basis to believe crime occurred | Affidavit/complaint lacked probable cause because medical scheme allows home cultivation and 60-day supply is not plant-limited; police needed to investigate yield before asserting illegality | Warrant and complaint supported by probable cause; magistrate had substantial basis to conclude grow exceeded personal 60-day supply or indicated distribution intent |
| Jury instruction re: possession with intent to distribute (usable marijuana vs. "marijuana") | Instruction that possession of "marijuana" sufficed was correct because statutory definition of marihuana includes growing plants | Needed instruction that intent to distribute requires possession of usable product, not just growing plants | No reversible error; instruction correct under G. L. c. 94C and medical statute/regulations |
| Jury instruction re: unlawful cultivation (whether Commonwealth must prove intentional cultivation exceeding 60-day supply) | Given broader instruction that Commonwealth must prove plants would ‘‘exceed ten ounces or that he intended to sell’’ was sufficient | Judge failed to instruct that Commonwealth must prove defendant intentionally cultivated more than a 60-day supply (not merely that yield could exceed ten ounces) | Instruction was erroneous and posed a substantial risk of miscarriage of justice; conviction for unlawful cultivation reversed |
| Sufficiency of evidence (intent to distribute and exceeding 60-day supply) | Circumstantial evidence (22 plants, grow equipment, scale, baggies, large cash, alleged armed invasion, girlfriend's limited observed use) supported convictions | Evidence about yield was speculative; experts relied on a single photo and could not reliably prove plants would yield >10 ounces; other inferences weak | Evidence insufficient to support unlawful cultivation (intentional excess-60-day supply). Evidence was sufficient for possession with intent to distribute; that conviction affirmed |
Key Cases Cited
- Commonwealth v. Canning, 471 Mass. 341 (Mass. 2015) (medical marijuana regime affects probable cause for searches of home grows)
- Commonwealth v. DiBennadetto, 436 Mass. 310 (Mass. 2002) (motion to dismiss for lack of probable cause evaluated from four corners of complaint application)
- Commonwealth v. Clermy, 421 Mass. 325 (Mass. 1995) (factors probative of intent to distribute: packaging, etc.)
- Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for reviewing sufficiency of the evidence)
- Commonwealth v. Alphas, 430 Mass. 8 (Mass. 1999) (substantial risk of miscarriage of justice standard for jury instruction error)
- Commonwealth v. Rugaber, 369 Mass. 765 (Mass. 1976) (quantity of drug possession may support inference of intent to distribute)