Commonwealth v. SenatiCommonwealth v. Senati
Fоllowing a jury trial the defendant was convicted on indictments charging unlawful possession of a Class A controlled substance (heroin) with intеnt to distribute (No. 77802) and unlawful distribution of a Class B controlled substance (cocaine) (No. 77803). The case comes to us by way of a bill of exceptions. The defendant argues that it was error for the judge to have denied his motions for directed verdicts on No. 77803 and on sо much of No. 77802 as charged intent to distribute. The motions were made at the conclusion of the Commonwealth’s case and were renewed at the conclusion of all the evidence.
We summarize the facts disclosed in the bill of exceptions.
On the evening of September 25, 1973, a group of four police offiсers, at least one of whom was experienced in the investigation of narcotic drug cases, was on patrol in Boston. At аbout 10:30 p.m. while proceeding on Shawmut Avenue in the neighborhood of Blackstone Park they observed the defendant enter the рark with two other men. They recognized the defendant by his distinctive clothing — a long gray coat and an unusual hat — which they had seen him wearing earlier that evening. Their cruiser was driven around the block, where it was parked facing Blackstone Park. From their position thе officers had an unobstructed view of the defendant and the others who were beneath a light in the center of the park.
The defendant and one of the men, later identified as one Diaz, touched hands, but the police did not observe what, if anything, was passed between them. Diaz imme
1. Assuming that it could hаve been inferred from that evidence that the defendant had just sold cocaine and was about to sell heroin to Diaz, it was at least equally inferable that the defendant had purchased the heroin from Diaz and that Diaz had had possession of the cоcaine throughout the transaction (if there was one). The evidence as to the touching of hands was inconclusive both as to the passage of either drug and as to the direction of any such passage. “When the evidence tends equally to sustain eithеr of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.”
Commonwealth
v.
Croft,
2. The evidence in the case was concluded in one day, and the case was continued for arguments and charge. On the following morning, after the jury were sеated and prior to arguments, the defendant summoned his attorney and demanded to be allowed to tell the jury that the police officers had lied and that the transcript of the District Court hearing would prove it. He was informed by his attorney that it was his understanding that therе was no District Court transcript. The substance of that conversation was reported to the judge, who was also informed that the defendant was excited and insisted on making a statement to the jury. The judge had the defendant brought to the side of the bench and inquired what he wanted. The
The right of a defendant to be present at his trial cаn be forfeited by his misconduct, provided he has been appropriately warned and continues his disruptive behavior despitе such warning. He may be barred from the courtroom until such time as he indicates his willingness to conduct himself “consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”
Illinois
v.
Allen,
The defendant’s exception to the denial of his motion for a directed verdict on indictment No. 77803 is sustained; the verdict on that indictment is set aside and judgment is to be entered thereon for the defendant. The defendant’s exception to the denial of his motion for a directed verdict on so much of indictment No. 77802 as charges intent to distribute is sustained; the defendant is to be resentenced on that indictment as for simple possession of heroin. See G. L. c. 278, § 12;
Commonwealth
v.
Novicki,
So ordered.
Notes
This was treated by the judge as a motion for a mistrial.