Commonwealth v. Acosta

81 Mass. App. Ct. 836

Facts: This is an appeal from the defendant’s conviction of possession of cocaine with intent to distribute and an accompanying school zone offense. On January 1, 2009, a state trooper noticed the defendant weaving in and out of the speed lane on the highway. The trooper pulled the defendant over and directed him to roll down his window. The trooper smelt alcohol on the defendant and observed a ¾ empty bottle of whisky and a case of bear in the backseat of the defendant’s car. The trooper ordered the defendant out of the vehicle, who had difficulty complying and kept his left hand in his pocket, despite being told to take it out. The trooper placed the defendant under arrest, took his hand from his pocket. In the defendant’s hand was a clear plastic bag containing five smaller clear plastic bags containing cocaine, which weighed 3.16 grams. In a police dog search of the defendant’s car, the dogs discovered 2 additional open bags of cocaine in the defendant’s wallet containing a combined total of .14 grams of cocaine.

Issue: Did the judge err in denying the defendant’s motion for a required finding of not guilty? Yes, no jury could have found that the defendant had the intent to distribute without employing speculation or guesswork. Therefore, on the count of the complaint charging possession of cocaine with intent to distribute is vacated, while the verdict of the lesser-included offense of possession of cocaine stands.

Reasoning: The court reasoned that the amount of drugs in the defendant’s possession was not enough to infer intent to distribute, but that certain indicia may be considered in assessing the defendant’s intent to distribute such as distinctive packaging, possession of large quantities of drugs, or the presence other items used to manufacture or distribute drugs. The court stated that the Commonwealth’s evidence in the present case was ambiguous and lacked evidence of specific intent. The court further reasoned that while expert testimony may be used to meet the Commonwealth’s burden, in the instant case, the trooper’s opinion of the defendant’s intention was wholly speculative.

Judgment: On the count of possession of cocaine with intent to distribute, the portion of the verdict “with intent to distribute” is set aside, but the lesser-included offense of possession of cocaine is to stand. The case is remanded to District Court for resentencing on the lesser offense.

On the count the complaint charging the violation within a school zone, the judgment is reversed, verdict set aside, and judgment entered for the defendant. 

Note: The court declined to address the defendant’s remaining claims including those in relation to the school zone charge, as it could not stand in light of the reversal of the conviction of possession with intent to distribute. (KL)

Commonwealth vs. Obdulio Santana

81 Mass. App. Ct. 829

Facts:

The defendant noticed that one of the occupants was doing work on a fence at the residence and offered his services. Both agreed that he would come back on Monday with a different paint for the fence and he was informed that the occupant would not be home until after 6:00 pm. The other occupant was home on Monday and aware that the Defendant would be coming to paint the fence. The occupant heard persistent knocks and the doorbell ringing; then she witnessed the Defendant at the sliding door, knock, walk away from the door. Moments later she heard glass shattering. The occupant saw the Defendant leave, she then discovered that the cellar window had been broken, called the other occupant at work and told her she was “really scared” and instructed her to come home. While on the phone, the Defendant returned and looked as if he was painting the fence, moved out of sight and then noise was heard that sounded as if someone had entered into the basement through the broken window. She heard the footsteps come up the stairs and called 911 and on the phone reported his appearance. A short distance away two police officers noticed him and held him. The occupant who had hired the Defendant, identified him while he was being detained.

Procedural History:

The defendant was found guilty “of breaking and entering with the intent to commit a felony and with the resulting infliction of fear upon a lawful occupant” in Hampden Superior Court.

Issue:

Did the court error in convicting the defendant?

Discussion:

No. The Defendant claims that the Commonwealth did not meet their burden of proof in proving that he “intended to cause fear to the occupant”. Looking at the relevant language in G.L. c. 266 §17 as quoted in the opinion it states that “Whoever… breaks and enters in the day time, a building… with intent to commit a felony, the owner or any other person lawfully therein being put in fear, shall be punished...”. Usually when the evidence and its sufficiency of bringing about a verdict are questioned the evidence is considered in a light that would be more favorable to the prosecution and must be proven beyond a reasonable doubt, in this case the intent to place the owner or others lawfully in the building in fear does not have to be intended but rather it must be the result of the acts the Defendant committed. Additionally, courts usually use statues in a manner that does not contradict Common Law unless it is explicitly attempting to change the statutory meaning; the common law does not reflect the need of intent to cause fear in the occupant. This is especially true when it involves a home. Lastly, unlike the case cited by the defendant, this case does speak of the need to prove intent and thus does not manifest a strict liability crime; his “intent to commit the crime will fairly subject him to liability for its incidental but serious consequences.

Judgment:

Affirmed (DQ). 

Louise Boland vs. George S. May International Company

81 Mass. App. Ct. 817

Facts:

The plaintiff, fitness club owner obtained the help of the defendant, a consulting company whose principal place of business was in Illinois. The parties contracted so that one of the defendant’s agents would perform an analysis in order to properly consult the plaintiff on how to increase their profits. The defendant made the contract and within it outlined their agreement it stated “It is agreed by and between the parties that jurisdiction shall vest in the State of Illinois.”

Procedural History:

The complaint was dismissed due to a forum selection clause, which states that Illinois had jurisdiction. Plaintiff appeals.

Issue:

Did the court error in dismissing the claim due to jurisdiction?

Discussion:

Yes. Looking at the history of forum selection clauses, a case, Jacobson v Mailboxes Etc. U.S.A., 419 Mass. 572 has dictated that the clauses should be enforced as long as it is not unfair or unreasonable to do so and that it is the party who refutes the clause that has to prove the forum would be difficult and unreasonable to be upheld. Furthermore, the language within the clause must be closely examined in order to determine whether the forum was meant to be exclusive or permissive. Additionally, in determining the meaning of the language used the “plain meaning of the language” should be considered. The general rule is that a clause does not make a jurisdiction exclusive if it only talks about jurisdiction. Looking at the plain language of the clause it does not give any indication that the jurisdiction is exclusive. More so, it did not include any type of “choice of law language” to make it evident that only Illinois would be the proper forum. The clause used in this contract would seem to be more permissive than mandatory. Although the manner to determine whether a clause is exclusive or permissive is not uniform and able to fit all cases, there are a few general approaches. Another approach would be to use an interpretation against the position of the drafter of the contract. This approach would also yield the same outcome.

Judgment:

Reversed (DQ). 

Mary Ellen Johnson vs. School Committee of Sandwich

81 Mass. App. Ct. 812

Facts:

The plaintiff, Mary Ellen Johnson, was once the superintendent of all of the public schools in Sandwich. During a meeting that the defendants held, the issue of the continuance of the plaintiff’s contract was considered. The matter was pushed a couple of days due to a time crunch in the meeting, the later discussion lead to the extension of the plaintiff’s contract. This continuance of the matter to a different meeting was orally announced at the first meeting as well as physically posted on a bulletin board. About two weeks later, after a new school committee was constructed, it was argued in a letter by an assistant district attorney that the meeting where the superintendent’s prolonged contract was considered, violate the open meeting law of the Commonwealth and thus everything considered in said meeting was considered void. The defendants then conducted a third meeting to ratify the issue, at which the plaintiff’s contract was not extended and the previous extension was ignored.

Procedural History:

The Superior Court Judge accepted the defendant’s 12 (b)(6) motion to dismiss.

Issue:

Did the Judge error in accepting the defendant’s 12 (b)(6) motion to dismiss?

Discussion:

Yes.  The Plaintiff showed reasoning within her complaint, which would have defeated the motion. Using G.L. c. 39 §23B, which demands that all governmental body meetings are to be open to the public pursuant to proper notice, the judge found that the public did not have proper awareness of the second meeting the flier was only posted on a high school bulletin board with limited audience as well as in the newspaper merely indicated that meetings were in the future. Furthermore, the fact that had a violation of the open meeting law taken place it did not void the action and in order to remove the extension of the plaintiff’s contract, judicial intervention was needed.  Considering the open meeting law, it allows the court to void an action that occurs in an unlawful meeting based on proof of a breach of protocol. Furthermore, the appropriate manner to effectively invalidate an action is through a complaint, filed timely. However, in the instant case the complaint was not timely filed and this invalidates the governing statute.

Judgment:

Reversed (DQ)

Commonwealth vs. Paris Quilter

81 Mass. App. Ct. 808

Facts:

A group of Boston police officers went to the defendant’s home to arrest him for a trespass charge. When the defendant answered the door in his underwear, the officers told him they were there in regards to the warrant for his arrest. The defendant asked to be able to get dressed, he was allowed to with the supervision of the officers. In his bedroom, due to their prior knowledge of his record referencing charges involving a firearm, the officers were to retrieve his pants from the closet as a safety measure. One officer found it odd that as the officers were obtaining the defendant’s pants, the defendant was not sitting on the part of the bed nearest to the close. A protective sweep was conducted and this sweep revealed no firearm. Only after the defendant was told to get up, get dressed and the mattress was lifted was a firearm found. The officers were aware that the defendant was not allowed to have a firearm due to their reading of his record before the incident. However, the firearm was not taken into possession at the time; it was only after a search warrant was issued that the firearm was seized.

Procedural History:

The Boston Municipal Court allowed a motion to suppress a firearm that Boston police confiscated.

Issue:

Did the Judge err in allowing the defendant’s motion to suppress?

Discussion:

Yes. The Judge used the first part of G.L. c. 276 §1, which allows the seizure of “evidence of the crime for which the arrest has been made” and due to the fact that the gun was not evidence of the crime which he was being arrested for, i.e. the trespassing, the gun was considered by the judge to not fall under the above quoted law. However, if the second part of G.L. c. 276 §1 is considered, when making an arrest, a search is allowed in order to “remov[e] any weapon that the arrestee might use to resist arrest or effect his escape.” Furthermore, because the gun was not found when a sweep of the room was done, but rather when an officer noticed the unusual behavior of the defendant, it was reasonable that an officer would proceed in searching the area where the defendant was sitting after witnessing the his strange actions. Lastly, the gun was in “the one lunge zone” and thus giving rise to the permissibility to remove such a weapon, as it could have easily have been used to “resist arrest or effect [an] escape”.

Judgment:

Reversed the order of suppression. (DQ).