Commonwealth v. Thompson

The defendant appeals from his convictions for distributing cocaine, second or subsequent offense, and a school zone violation. He raises four arguments. First, he contends that his motion for a required finding of not guilty was incorrectly denied. Second, he argues that the judge abused his discretion by admitting in evidence photographs of the drug purchaser. Third, he claims that using the mailbox example to instruct the jury on circumstantial evidence created a substantial risk of a miscarriage of justice. Finally, he argues that the 2012 amendments to the school zone law should apply retroactively. We reject these contentions and affirm the judgment.

Motion for required finding of not guilty. The defendant first challenges the judge's denial of his motion for a required finding of not guilty. “We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.” Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 208–209 (2007). Based on the evidence, the jury could have found the following facts. The police officers observed the alleged drug purchaser, Lori Quigley, use the payphone, and a few minutes later, the defendant came to the convenience store parking lot on his bicycle. The officers saw hand-to-hand contact between the defendant and Quigley, but never saw what, if anything, was exchanged., After the defendant left, the officers confronted Quigley and another individual, Michael Benoit. Upon seeing the officers, Benoit reached over a fence and dropped something, which was later revealed to be a bag containing .13 grams of crack cocaine. Both Quigley and Benoit were arrested, and a search discovered a crack pipe concealed in Quigley's bra. A few blocks away, a different group of officers arrested the defendant and a search of the defendant yielded separate bill folds of forty dollars and forty-five dollars, a cell phone, a charger, and a lighter. The Commonwealth also introduced expert testimony on the patterns of street-level drug transactions and the market price for different amounts of crack cocaine.

From these facts, the defendant argues that nothing definitively establishes that he sold drugs to Quigley, so he is entitled to a required finding of not guilty. Specifically, he contends that the evidence tends to equally suggest that Benoit could have possessed the drugs the whole time. See Commonwealth v. Senati, 3 Mass.App.Ct. 304, 306 (1975). We reject this argument.

Although the evidence here was largely circumstantial, that does not negate the sufficiency of the evidence proved by the Commonwealth. See Commonwealth v. Tanner, 66 Mass.App.Ct. 432, 434 (2006). Tanner is instructive. In that case, the defendant was convicted of distribution even though no actual transfer of drugs was observed. The evidence there did show, however, that the seller was surreptitiously counting money but had no drugs on him, and the buyer was in possession of cocaine when he was arrested. Although this court reversed the convictions, it held that the evidence of the drug transaction was sufficient for a conviction because a rational trier of fact could have found the essential elements of the crime. Here, the circumstantial evidence surrounding the crime was even stronger. In addition to the factual similarities between this case and Tanner, the police officers also observed actual hand-to-hand contact. We are therefore left with the conclusion that the evidence was sufficient to support the defendant's convictions.

Photographs. The defendant next argues that the judge should not have admitted photographs of Quigley because it was unduly prejudicial and allowed the jury to convict based on a theory of guilt by association. “The question whether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge.” Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999).

According to the defendant's brief, the photograph of Quigley depicted her as “suffering from the ravages of drug addiction.” This was contrasted by the defendant's clean-cut look at trial. Therefore, according to the defendant, the jury would be left with no choice but to convict because the only reason the well-kempt defendant would associate with the haggard Quigley would be if he were selling drugs to her. We reject this argument.

First, the defendant has not cited any authority to support his novel argument that the jury would have been swayed based on the disparity of physical appearance. Nor did the photographs in question depict gruesome or graphic scenes, so as to inflame the jurors' emotions. See Commonwealth v. Hoilett, 430 Mass. 369, 373 (1999). Lastly, the Commonwealth never suggested to the jury that the defendant should be convicted based on the physical contrast between the defendant and Quigley. Therefore, we cannot say that the defendant was prejudiced by the admission of these photographs.

Mailbox example. In response to a jury question about permissible inferences, the judge gave the familiar mailbox example. According to the defendant, the mailbox is too similar to what happened here and impermissibly lowered the burden of proof. The defendant, in making this argument, analogizes the facts of this case to the facts of the mailbox example. In essence, Quigley had no drugs before her meeting with the defendant, but was found with them after. So the logical inference is that the defendant sold her the narcotics, much in the same way that a full mailbox leads to the inference that the mailman came. We are not convinced by this argument.

Because the defendant did not object, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). We believe that Commonwealth v. Gil, 393 Mass. 204 (1984), is dispositive. In Gil, the defendant was convicted based, in part, on evidence that his footprints appeared on the kitchen floor. Id. at 222. In instructing the jury on circumstantial evidence, the judge used the common “footprints in the snow” analogy. Ibid. The Supreme Judicial Court held that there was no substantial risk of a miscarriage of justice. Ibid. See also Commonwealth v. Vaughn, 32 Mass.App.Ct. 435, 443 (1992) (“Although we do not think the judge committed reversible error, the similarity of the analogy to the Commonwealth's evidence makes use of [the ‘footprints in the snow’] analogy ill-advised in the instant circumstances of this case”). Here, the similarity between the mailbox example and the evidence at trial does not rise to the same level as the similarities between the facts and examples in Gil and Vaughn. Accordingly, we conclude that the judge's instructions did not create a substantial risk of a miscarriage of justice.

Retroactivity. While this appeal was pending, the proximity to a school required for a school zone drug violation, G.L. c. 94C, § 32J, was lowered from 1000 feet to 300 feet. See St.2012, c. 192, § 30. The defendant argues that this statute should be applied retroactively, and, since the crime was committed roughly six hundred feet from a school, the school zone violation portion of his conviction should be vacated. We disagree.

Our analysis is guided by G.L. c. 4, § 6, which provides rules for statutory construction:

“In construing statutes the following rules shall be observed, unless their observance would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute: ...

“Second, The repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, prosecution or proceeding pending at the time of the repeal for an offence committed, or for the recovery of a penalty or forfeiture incurred, under the statute repealed.”

“[L]egislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms.” Commonwealth v. Dotson, 462 Mass. 96, 101 (2012), quoting from Patrick v. Commissioner of Correction, 352 Mass. 666, 669 (1967). We find nothing in this act indicating that the legislature intended the changes to be retroactive. Accordingly, the defendant cannot benefit from this change in the law.

Judgments affirmed.
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