Commonwealth v. Bones

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14-P-1169 Appeals Court

COMMONWEALTH vs. LEONIDES BONES.

No. 14-P-1169.

Suffolk. September 14, 2017. - August 3, 2018.

Present: Wolohojian, Agnes, & Wendlandt, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress,
Required finding, New trial, Assistance of counsel,
Argument by prosecutor. Evidence, Judicial notice.
Municipal Corporations, By-laws and ordinances. Witness,
Impeachment.

Indictments found and returned in the Superior Court
Department on June 19, 2012.

A pretrial motion to suppress evidence was heard by Janet
L. Sanders, J.; the cases were tried before her; and a motion
for a new trial was considered by her.

Brad P. Bennion for the defendant.
Darcy A. Jordan, Assistant District Attorney (Patrick R.
Mulligan, Assistant District Attorney, also present) for the
Commonwealth.
 2

AGNES, J. This is an appeal by the defendant, Leonides

Bones, from his conviction, after a trial by jury, of possession

of a class A controlled substance with intent to distribute, see

G. L. c. 94C, § 34, and, following a subsequent jury-waived

trial conducted in accordance with G. L. c. 278, § 11A, of being

a second or subsequent offender.1 The defendant argues that his

motion to suppress was improperly denied because the police were

not justified in stopping him on a public sidewalk for drinking

an alcoholic beverage as that conduct is not a criminal

violation under State or local law. The defendant further

argues that even if the motion to suppress was properly denied,

there was insufficient evidence presented at trial to permit the

jury to infer that he intended to distribute the heroin found on

his person. Finally, the defendant also appeals the order

denying his motion for a new trial arguing that his motion was

improperly denied. For the reasons set forth below, we affirm.

The relevant facts are set forth in connection with each of

the defendant's several arguments.

1 The jury also found the defendant guilty of possession of
a class A controlled substance with intent to distribute in a
school zone, see G. L. c. 94C, § 32J, but the judge ordered that
a not guilty finding be entered as to that conviction after
concluding that St. 2012, c. 192, § 30, which reduced the school
zone area from 1,000 feet to 300 feet, was applicable.
 3

Discussion. 1. Motion to suppress. The defendant does

not take issue with the facts found by the motion judge, which

are supported by the evidence.

On April 4, 2012, Sergeant Brian Dunn, then a patrolman

with the Chelsea police department, was in uniform and operating

a marked cruiser when he responded to a call from a party

reporting possible drug activity. The caller reported that the

offender was a black male wearing a white T-shirt, shorts, and a

hat. On Division Street, in the vicinity of Bellingham Square,

Sergeant Dunn observed a black male matching the caller's

description. From prior encounters, Sergeant Dunn recognized

the man as the defendant. Sergeant Dunn observed the defendant

"drinking out of a nip type bottle of alcohol" while he was

walking down the sidewalk. Sergeant Dunn stopped his cruiser

and got out to speak with the defendant. After seeing Sergeant

Dunn approach, the defendant said, "I'm sorry, I didn't see you.

I'll dump it out," and began dumping contents of the bottle of

alcohol onto the sidewalk. Sergeant Dunn did not order the

defendant to stop drinking the alcohol or make any other show of

authority. Sergeant Dunn testified without objection that

"drinking alcohol in public is an arrestable offense in the

[c]ity of Chelsea." He then detained the defendant to see

whether he had any active warrants. After determining that the

defendant did have an active warrant for his arrest, Sergeant
 4

Dunn and other officers who had arrived on scene arrested the

defendant on the warrant and transported him to Chelsea police

headquarters.

At the police station, the officers conducted an inventory

of the defendant's personal property. The defendant had $209 on

his person. The currency was separated into bundles of small

denominations "like a stack of [fifteen dollars], a stack of

[twenty dollars], a stack of [fifteen dollars], like that in

each pocket." Sergeant Dunn testified that he had seen United

States currency bundled like that in the past "and it's usually

that way when it's involved in drug activity." In accordance

with departmental policy, the officers removed the defendant's

shoes and took his belt before he was placed in a cell. The

officers noticed a bulge protruding from the defendant's sock;

when asked what it was, the defendant removed his sock and threw

it to the floor. In his sock, the police found a large plastic

bag filled with fifteen individually wrapped smaller bags of

heroin.2

2 At oral argument, the defendant waived any challenge to
the validity of the seizure of his sock at the police station.
In view of the judge's finding that the defendant removed his
sock and threw it to the cell floor when the police asked him
about the bulge, the seizure did not constitute a search. See
Commonwealth v. Battle, 365 Mass. 472, 475 (1974).
 5

The defendant's argument on appeal is that Sergeant Dunn

was not justified in detaining him to check for warrants because

drinking in public is not a crime under either the General Laws

of the Commonwealth or the ordinances of the city of Chelsea.

The defendant relies for support on a document that appears in

an addendum to his brief on appeal, which he describes as the

pertinent city of Chelsea ordinance. The same material appears

in the Commonwealth's brief on appeal. A copy of the city of

Chelsea ordinance was not offered in evidence during the hearing

on the motion to suppress.

The defendant's argument fails for several reasons. First

and foremost, the defendant overlooks the testimony by Sergeant

Dunn, credited by the judge, that drinking an alcoholic beverage

on the street or a sidewalk in the city of Chelsea is a criminal

offense. In Massachusetts, the contents of a municipal bylaw or

ordinance may be proved by oral testimony. See Commonwealth v.

Rushin, 56 Mass. App. Ct. 515, 518 & n.6 (2002) (officer's

testimony that defendant's drinking can of beer while sitting in

car violated city ordinance was sufficient to prove contents of

municipal law). Contrast Commonwealth v. Perretti, 20 Mass.

App. Ct. 36, 40 (1985) (criminal conviction for violating

municipal ordinance proscribing "peeping and spying" was invalid

because there was no evidence of contents of ordinance either in

oral or documentary form). Here, Sergeant Dunn testified
 6

without objection that in the city of Chelsea, drinking alcohol

in public is an arrestable offense. See G. L. c. 272, § 59, as

appearing in St. 1981, c. 629 (providing that person who, in

public, willfully violates ordinance "the substance of which is

the drinking or possession of alcoholic beverage," is subject to

arrest). See also Commonwealth v. Jones, 83 Mass. App. Ct. 296,

296 n.1 (21013). The detention of the defendant for purposes of

conducting a check for active warrants therefore was valid,

because Sergeant Dunn had probable cause to arrest the defendant

for violating the ordinance prior to his detention. See

Commonwealth v. Charros, 443 Mass. 752, 765 (2005).

Accordingly, Sergeant Dunn's subsequent arrest of the defendant

based on an outstanding warrant was valid. For these reasons,

the defendant's motion to suppress properly was denied.

While what has been said is sufficient to dispose of the

defendant's argument that he was unlawfully detained before the

police discovered there was an outstanding warrant for his

arrest, we add this additional observation about municipal

ordinances and bylaws. Courts are required to take judicial

notice of the General Laws of the Commonwealth, statutes, and

other public acts of the Legislature, the common law, rules of

court, the Code of Massachusetts Regulations, and Federal

statutes. Furthermore, courts will take judicial notice of the

contents of Federal regulations, the laws of foreign
 7

jurisdictions, legislative history, and municipal charters and

charter amendments when this material is called to their

attention. See Mass. G. Evid. § 202(a)(1) & (2) (2018).

However, the general rule here in Massachusetts is that in the

absence of statutory authorization, a court will not take

judicial notice of a municipal ordinance. E.g., Brodsky v.

Fine, 263 Mass. 51, 54 (1928); Russell v. New Bedford, 74 Mass.

App. Ct. 715, 722 (2009). See Mass. G. Evid. § 202(c) (2018).3

The law has traditionally treated municipal ordinances as a

"peculiar species of fact, requiring formal proof" because those

materials tended to not be readily available to judges.

2 McCormick on Evidence § 335, at 334 (K.S. Broun ed., 7th ed.

2013). See, e.g., Passanessi v. C.J. Maney Co., 340 Mass. 599,

604 (1960); Peters v. Haymarket Leasing, 64 Mass. App. Ct. 767,

775 n.11 (2005). Ordinarily, the contents of a municipal

ordinance or bylaw is proved by offering an attested copy of the

same as an exhibit. See Mariano v. Building Inspector of

Marlborough, 353 Mass. 663, 666 (1968), citing G. L. c. 233,

§ 75. At least one noted authority on the law of evidence has

3 For the national perspective, see 6 McQuillen, Municipal
Corporations § 22.18 (3d ed. Supp. 2017) (collecting cases); 2
Wharton's Criminal Evidence § 5:34 (15th ed. Supp. 2017) (same);
Jones on Evidence § 2:85 (7th ed. Supp. 2017) (same); 2
Sutherland, Statutory Construction § 39.5 (7th ed. & Supp. 2017-
2018) (same).
 8

observed "that as these materials become more accessible, the

tendency is toward permitting the judges to do what perhaps they

should have done in the beginning, that is, to rely on the

diligence of counsel to provide the necessary materials, and

accordingly to take judicial notice of all law." 2 McCormick on

Evidence, supra. We have noted that "reliable versions of

municipal ordinances and by-laws now may be as generally

accessible as statutes." Halbach v. Normandy Real Estate

Partners, 90 Mass. App. Ct. 669, 675 n.5 (2016).4 The time may

have come for the rule prohibiting judicial notice of municipal

ordinance and bylaws to be revisited by the Supreme Judicial

Court.

Even if we were to consider the material that both parties

have included in their briefs and described as the city of

Chelsea ordinance, it is not inconsistent with Sergeant Dunn's

testimony that drinking in public is a criminal offense in

Chelsea. The defendant misunderstands language in that material

that provides a civil alternative to what otherwise would be a

criminal violation. A municipal ordinance or bylaw that

provides a criminal penalty for a violation by, for example,

4 See, e.g., https://www.mass.gov/guides/massachusetts-city-
and-town-ordinances-and-bylaws [https://perma.cc/K6BT-7XAB]
(comprehensive collection of Massachusetts city and town
ordinances and bylaws prepared by trial court law libraries).
 9

setting forth a schedule of fines, may also provide for a

noncriminal, civil disposition of the violation. See G. L.

c. 40, § 21D.5 See also G. L. c. 277, § 70C.6 The existence of

5 General Laws c. 40, § 21D, as amended by St. 1992, c. 133,
§ 370, provides, in pertinent part:

"Any city or town may by ordinance or by-law not
inconsistent with this section provide for non-criminal
disposition of violations of any ordinance or by-law or any
rule or regulation of any municipal officer, board or
department the violation of which is subject to a specific
penalty.

"Any such ordinance or by-law shall provide that any person
taking cognizance of a violation of a specific ordinance,
by-law, rule or regulation which he is empowered to
enforce, hereinafter referred to as the enforcing person,
as an alternative to initiating criminal proceedings shall,
or, if so provided in such ordinance or by-law, may, give
to the offender a written notice to appear before the clerk
of the district court having jurisdiction thereof at any
time during office hours, not later than twenty-one days
after the date of such notice.... Such notice shall be
signed by the enforcing person, and shall be signed by the
offender whenever practicable in acknowledgment that such
notice has been received.

"The enforcing person shall, if possible, deliver to the
offender a copy of said notice at the time and place of the
violation. If it is not possible to deliver a copy of said
notice to the offender at the time and place of the
violation, said copy shall be mailed or delivered by the
enforcing person, or by his commanding officer or the head
of his department or by any person authorized by such
commanding officer, department or head to the offender's
last known address, within fifteen days after said
violation. Such notice as so mailed shall be deemed a
sufficient notice, and a certificate of the person so
mailing such notice that it has been mailed in accordance
with this section shall be prima facie evidence thereof."

6 General Laws c. 277, § 70C, as amended through St. 2005,
c. 54, § 3, provides in part that "[u]pon oral motion by the
 10

an alternative civil process for the disposition of a violation

of an ordinance or bylaw establishing criminal liability does

not mean that the police cannot proceed with enforcement of the

criminal sanction by subjecting violators to arrest pursuant to

G. L. c. 272, § 59. See Commonwealth v. Weston W., 455 Mass.

24, 29 (2009). Contrast, G. L. c. 94C, § 32N (directing police

departments to enforce G. L. c. 94C, § 32L [possession of less

than one ounce of marijuana] in accordance with the noncriminal

provisions of G. L. c. 40, § 21).7

2. Sufficiency of the evidence. The defendant next argues

that the evidence presented against him at trial was not

sufficient to prove beyond a reasonable doubt that he intended

to distribute the heroin found in his sock at booking. We

disagree.

commonwealth or the defendant at arraignment or pretrial
conference, or upon the court's own motion at any time, the
court may, unless the commonwealth objects, in writing, stating
the reasons for such objection, treat a violation of a municipal
ordinance, or by-law or a misdemeanor offense as a civil
infraction." There are a series of criminal statutes listed in
§ 70C which are exempted from this alternative procedure.

7 Because Sergeant Dunn had the authority to arrest the
defendant for drinking alcohol in public in violation of the
Chelsea city ordinance, the defendant's claim that trial counsel
was ineffective for failing to discover that it was not an
arrestable offense must fail. See Commonwealth v. Eddington, 71
Mass. App. Ct. 138, 147 (2008).
 11

In reviewing the sufficiency of the evidence, the question

is "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319

(1979). "Intent is a factual matter that may be proved by

circumstantial evidence." Commonwealth v. Gonzales, 33 Mass.

App. Ct. 728, 731 (1992), quoting from Commonwealth v. LaPerle,

19 Mass. App. Ct. 424, 427 (1985).

Here, the defendant was found in possession of 1.49 grams

of heroin.8 However, "[t]he fact that the amount of drugs seized

was small does not, by itself, require a finding of not guilty

to so much of the indictment as states 'intent to distribute.'

A dealer's inventory of drugs may have been reduced before his

arrest to a small amount by a number of sales." Ibid. A

detective with the Chelsea police department provided expert

testimony indicating that the manner in which the drugs were

packaged -- fifteen individually wrapped plastic bags inside of

a larger plastic bag -- was consistent with possession with an

intent to distribute. See ibid. (ten glassine bags bundled by

8 A Chelsea police detective testified that the street value
of the drugs at the time of the defendant's arrest was
approximately $300.
 12

elastic band evidence of intent to distribute). Moreover, the

detective testified without objection that in his experience,

someone possessing drugs for personal use in Chelsea would

typically have the drugs in a single bag and would also possess

paraphernalia to use the drugs. The defendant was not found

with any paraphernalia on his person that would allow him to

inject or otherwise ingest the heroin. See Commonwealth v.

Labitue, 49 Mass. App. Ct. 913, 914 (2000). The detective

further described the area in which the defendant was arrested

as a high drug activity area. See Commonwealth v. Dancy, 75

Mass. App. Ct. 175, 178 (2009). Finally, the defendant was

found with $209, $100 of which was located in his wallet, and

$109 of which was located in his pocket and stacked in fifteen

and twenty dollar denominations, which is consistent with the

detective's testimony that each baggie of heroin possessed by

the defendant had an approximate street value of twenty dollars.

See Commonwealth v. Arias, 29 Mass. App. Ct. 613, 619 n.10

(1990).

Based on the foregoing, the Commonwealth presented

sufficient evidence to prove beyond a reasonable doubt that the

defendant possessed the heroin with the intent to distribute and

the defendant's motion for a required finding of not guilty was

properly denied.
 13

3. Motion for a new trial. The defendant argues that his

motion for a new trial was improperly denied by the motion

judge, who also presided over the defendant's trial.

A judge "may grant a new trial at any time if it appears

that justice may not have been done." Mass.R.Crim.P. 30(b), 365

Mass. 780 (1974). Our review of a decision to deny a motion for

a new trial is limited to determining whether the motion judge

"committed an abuse of discretion or a significant error of

law." Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017),

quoting from Commonwealth v. Dejesus, 468 Mass. 174, 178 (2014).

We grant special deference to a judge's decision on a motion for

a new trial where, as here, the motion judge also acted as the

trial judge. See ibid.

a. Ineffective assistance of counsel. The defendant

argues that trial counsel was ineffective for failing to

introduce a Social Security letter indicating that he began

receiving Social Security benefits in the amount of $993 per

month in December, 2012, and other Social Security documents

"show[ing] benefits to Mr. Bones over the years" as evidence of

the defendant's income in an attempt to account for the money

found on the defendant's person during booking.

A defendant complaining of ineffective assistance must

establish (1) "serious incompetency, inefficiency, or

inattention of counsel -- behavior of counsel falling measurably
 14

below that which might be expected from an ordinary fallible

lawyer . . ." and (2) that it "likely deprived the defendant of

an otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the

Commonwealth's argument in relation to the cash found on the

defendant focused on the way in which the bills were folded in

groups of fifteen or twenty dollars, suggestive of a series of

individual transactions consistent with the testimony about the

cost of an individual bag of heroin purchased on the street.

The Commonwealth did not refer to the defendant's employment

status, nor argue that due to being unemployed his possession of

$209 in cash could not be explained other that by assuming it

was the proceeds of illegal drug sales. Moreover, the

prosecutor did not make any reference to the defendant's

employment status in the Commonwealth's closing argument.

Finally, the Social Security letter in the record before us does

not cover the period during which the defendant was arrested, as

the letter indicates that he began receiving Social Security

benefits in December, 2012, and the defendant was arrested in

April, 2012. The letter alone thus does not provide an

alternative explanation as to how the defendant came to possess

the money found on his person. While the defendant's trial

counsel indicated in her affidavit that other Social Security

records would have been helpful to the defendant had they been
 15

introduced in evidence, the defendant has failed to prove how

the contents of those records would have been helpful to the

defense, or to show that such records even exist. The motion

judge did not abuse her discretion in finding that defense

counsel was not ineffective for failing to submit in evidence

documents concerning the defendant's receipt of Social Security

benefits.9

b. Testifying chemist's credentials. The defendant

further argues that his motion for a new trial should have been

allowed on the basis that newly discovered evidence cast doubt

on the defendant's conviction. The defendant argues that the

testifying chemist falsely asserted at trial that she earned a

bachelor's degree in chemistry, when she was in fact awarded a

bachelor's degree in sociology.10

9 The defendant argued below that trial counsel was
ineffective for failing to request a voir dire of the Chelsea
police detective who testified as an expert witness at trial.
The defendant concedes on appeal that a voir dire was in fact
requested and held prior to the detective providing expert
witness testimony. The defendant now attempts to argue that
police witnesses should not be allowed to offer expert opinion
testimony as to whether the drugs possessed by the defendant
were consistent with an intent to distribute. There is no merit
to the defendant's argument. See, e.g., Commonwealth v.
Johnson, 410 Mass. 199, 202 (1991).

10The defendant provided both the motion judge and this
court with transcripts from a motion hearing in a separate case
involving the same chemist. Essentially, the chemist stated
that she completed all the necessary degree requirements to earn
a bachelor of science degree in chemistry, but, unbeknownst to
her, the college she attended never awarded her the degree.
 16

"A defendant seeking a new trial on the ground of newly

discovered evidence must establish both that the evidence is

newly discovered and that it casts real doubt on the justice of

the conviction." Commonwealth v. Grace, 397 Mass. 303, 305

(1986). As the motion judge correctly found, even assuming that

this is newly discovered evidence, see id. at 306 (newly

discovered evidence is evidence not reasonably discoverable by

defendant at time of trial), the information was, at best,

impeachment evidence that does not rise to the level of

requiring a new trial. See Commonwealth v. Simmons, 417 Mass.

60, 72 (1994) ("Newly discovered evidence that tends merely to

impeach the testimony of a witness does not ordinarily warrant a

new trial").

c. Commonwealth's closing argument. The defendant makes

numerous arguments relating to the propriety of the

Commonwealth's closing argument, all of which lack precision.

Our understanding of the defendant's argument is that the

defendant objects to the following: (1) the prosecutor's

argument that it was unfair that the credibility of the

testifying chemist and police officers was being undermined by

Annie Dookhan's malfeasance, see Commonwealth v. Scott, 467

Mass. 336 (2013); (2) the prosecutor's statement that it is not
 17

the jury's job "to give anybody a break"; and (3) the

prosecutor's statement that Dookhan's misconduct and its

aftermath are "a chilling thing for our whole society."

As for the defendant's first argument, the prosecutor is

entitled to base his argument on the evidence and the fair

inferences drawn therefrom. See Commonwealth v. Kozec, 399

Mass. 514, 516 (1987). Here, the defendant attempted to

undermine the validity of the drug certificate and the testimony

of the Commonwealth's witnesses by referencing the misconduct of

Dookhan. The prosecutor properly argued that the evidence

elicited at trial indicated that Dookhan did not taint the drug

samples admitted in evidence, and that the chemist reported

Dookhan's misconduct to her supervisor. The Commonwealth's

closing argument was proper in this respect, as it was based on

the evidence admitted at trial and the fair inferences drawn

therefrom. The defendant's second argument must also fail

because the prosecutor was entitled to argue that the evidence

showed that the defendant was guilty in spite of Dookan's

misconduct and that the jurors have a duty to make a

determination as to the defendant's guilt based on the

admissible evidence before them. See Commonwealth v. Payton, 35

Mass. App. Ct. 586, 597-598 (1993). Third, the prosecutor's

statement that Dookhan's misconduct is a "chilling thing for our

whole society" was best left unsaid, as it was arguably based on
 18

the prosecutor's knowledge of events outside of the record in

this case. However, we do not believe that this statement

prejudiced the defendant because, as the evidence showed,

Dookhan was not involved in the testing of the drugs in this

case. Furthermore, the judge gave a strong curative instruction

indicating that the evidence about Dookhan and the Hinton Drug

lab were properly admitted as relevant to the issues before the

jury in response to defense counsel's objection to this

statement.11 See Kozec, supra at 518. Finally, we note that the

Commonwealth's closing argument, while critical of the defense

mounted by the defendant, did not "constitute[] an overly

aggressive response" to the defendant's challenging of the

validity of the drug certificate and testimony of the chemist.

Commonwealth v. Lopes, 478 Mass. 593, 607 (2018).

Judgment affirmed.

Order denying motion for new
trial affirmed.

11During trial, defense counsel was permitted to offer
evidence of Annie Dookhan's misconduct at the Hinton Drug lab,
including testimony elicited during the recross-examination of
the Commonwealth's expert indicating that the lab remained an
active crime scene at the time of trial. The prosecutor was
free to argue to the jury that Dookhan's misconduct had no
bearing on the drug testing done in this case. However, insofar
as the prosecutor's comments indicated to the jury that it
simply should not consider the misconduct of Dookhan in the
context of this case, the judge appropriately instructed the
jury that the evidence was properly admitted and could be
weighed and considered accordingly.