37 Mass. App. Ct. 722 | Mass. App. Ct. | 1994
On appeal from his conviction of possession of a controlled substance (heroin) with intent to distribute, the defendant posits three bases for disturbing the judgment. We
The police observed the defendant and Alfred Nunez leave Nunez’s apartment together, enter an automobile, and ride to a different location where the defendant’s car was parked; they later observed Nunez transfer contraband to the defendant. The defendant was arrested almost immediately. Shortly thereafter, as the result of a search pursuant to a warrant, the police seized nine hundred packets of cocaine from Nunez’s apartment.
1. Motion to suppress.
The officers observed the following: (1) Nunez
The defendant’s motion to suppress was properly denied. There was probable cause for the “warrantless seizure.” Compare Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982), cert. denied, 459 U.S. 1222 (1983) (observations made through vehicle windows are lawful and can provide probable cause).
This aspect of the case is controlled in material respects by the reasoning set out in Podgurski, supra, and Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 42-43 (1989). In Rivera, we said “it is settled by numerous decisions that a concurrence of the first and second factors — identification
2. Sufficiency of the evidence
3. Admission in evidence of Nunez’s contraband. The defendant argues that the admission in evidence of the nine hundred packets of heroin seized in Nunez’s apartment was unfairly prejudicial. We agree.
The Commonwealth argues that this evidence could have a bearing on the question of the defendant’s intent to distribute, an ingredient of the drug crime, and to show the entire sequence of events. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982); Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994). See also Commonwealth v. Hoffer, 375 Mass. 369, 373 (1978) (“inextricably intertwined with the description of events on the night of the [drug transaction] and thus was highly relevant”); Commonwealth v. Stewart, 411 Mass. 345, 354 (1991) (“logical tendency to prove some issue in the case on trial”).
The defendant admitted he was a user of drugs and Nunez was his supplier. As this case was not presented on a conspiracy or joint venture theory, we think that the admission of the huge stash of drugs seized in Nunez’s apartment impermissibly tipped the balance and perforce unfairly eradicated the defendant’s only asserted defense, that is, he was a heavy user and the drugs seized from his person were for his personal use only. Viewing the observed behavior of Nunez and the defendant, either separately or together, and drawing inferences generously in favor of the Commonwealth, there is, at best, support for two equally plausible propositions: that the purchase of drugs from an undisputed drug dealer was either for personal use or for distribution. We are thus left to “speculate upon the effect of that evidence. We are not in a position to say that it had none and such doubts as we entertain can only be resolved in favor of the defendant.” Commonwealth v. Barrett, 418 Mass. at 796, quoting from Com
Judgment reversed.
Verdict set aside.
Nunez’s trial was severed from that of the defendant.
The defendant would like us to discredit the testimony of the Commonwealth’s police witnesses by casting doubt on their unenhanced nighttime visual acuity. Although some of the testimony of the police officers strains credulity, our decision on this question as well as on the motion to suppress issue does not depend on our view of that testimony.