Elements of Drug Offenses

In any drug case, the essential elements are basically the same. Generally, in each and every case, regardless of the drug offense, the Commonwealth, at a minimum, is required to prove beyond a reasonable doubt that the defendant

  • knowingly and
  • intentionally
  • possessed
  • a controlled substance.

If the charge is trafficking or possession with intent to distribute or another more serious offense, the required elements are merely refined to add that additional factor.

Knowledge

Model Jury Instruction 3.140 for the District Court defines knowledge as doing an act “voluntarily and intentionally, and not because of mistake, accident, negligence or other innocent reason.”

Instruction 3.140 notes that determining whether the defendant possessed the element of knowledge requires making a “decision about the defendant’s state of mind at that time” by looking “to the actions of [the defendant] in order to decide what [his or her] state of mind is.” The jury is further instructed as follows:

[Y]ou may examine the defendant’s actions and words, and all of the surrounding circumstances, to help you determine the extent of the defendant’s knowledge at that time. You should consider all of the evidence, and any reasonable inferences you draw from the evidence, in determining whether the Commonwealth has proved beyond a reasonable doubt, as it must, that the defendant acted with the [requisite] knowledge.

Instruction 3.140, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009) (collecting cases).

The supplemental instructions to Model Jury Instruction 3.140 state that

  • knowledge must be personal, i.e., “not what a reasonable person would have known, but what this particular defendant actually did or did not know at the time”; and
  • knowledge of the law is not required, i.e., the defendant does not need to “have known that there is a law that makes it a crime to” do the act for which the defendant is charged.

Circumstantial Evidence

It is fairly clear that knowledge may, and indeed often must, be proved by circumstantial evidence. Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 613 (1976). “In Nichols there was evidence of heroin in various generally inaccessible locations in the defendant’s apartment, i.e., behind a linen closet shelf and under the kitchen sink. As such ‘the jury could have inferred that the defendant had placed it there or had at least known of its existence.”’ Hon. R. Marc Kantrowitz, Timothy E. Maguire & Helle Sachse, Massachusetts Criminal Law Sourcebook & Citator 2010, at 102–03 (MCLE, Inc. 2009) (quoting Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 613 (1976)); cf. Commonwealth v. Daley, 423 Mass. 747, 752 (1996) (evidence sufficient where “defendant was alone, driving an unregistered vehicle, and the cocaine was plainly visible on the floor in front of the driver’s seat, an area where the defendant had easy access and control”); Alicea v. Commonwealth, 410 Mass. 384, 388 (1991) (“The fact that the defendant was operating a vehicle with a ‘popped’ ignition and containing heroin worth thousands of dollars tends to show his knowledge of the presence of the drugs.”); Commonwealth v. Garcia, 409 Mass. 675,686–87 (1991) (“Discovery of contraband in the same automobile with the defendant, without more, is not sufficient evidence to warrant a finding of possession. Presence in the same vehicle supplemented by other incriminating evidence, however, may suffice to show knowledge or intent to control.”) (citations omitted). The circumstances of the defendant’s negotiations with another may warrant a reasonable inference that the defendant believed and understood that a package contained a controlled substance, which is sufficient to show knowledge. Commonwealth v. DePalma, 41 Mass. App. Ct. 798 (1996).

Intent

The element of intent is probably more easily proven than the elements of knowledge. Model Jury Instruction 3.120 defines specific intent as “[a] person’s . . . purpose or objective” as evidenced by “the defendant’s actions and words, and all of the surrounding circumstances.” By contrast, Instruction 3.120 further notes that “[a]s a general rule, it is reasonable to infer that a person ordinarily intends the natural and probable consequences of any acts that he does intentionally. You may draw such an inference, unless there is evidence that convinces you otherwise.” Instruction 3.120, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009).

Intent in drug cases and as defined here is specific. “Specific intent is ‘a conscious act with the determination of the mind to do an act. It is contemplation rather than reflection and it must precede the act.”’ Notes to Instruction 3.120, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009) (quoting Commonwealth v. Nickerson, 388 Mass. 246, 253–54 (1983)).

Instruction 3.120 defines general intent as follows:

In determining whether the defendant acted “intentionally,” you should give the word its ordinary meaning of acting voluntarily and deliberately, and not because of accident or negligence. It is not necessary that the defendant knew that he (she) was breaking the law, but it is necessary that he (she) intended the act to occur which constitutes the offense.

Instruction 3.120, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009).

The notes indicate that “[o]ne way to describe general intent is whether the defendant ‘intended the act to occur,’ as contrasted with an accident.” Notes to Instruction 3.120, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009) (citations omitted).

Possession

Possession is defined as “direct physical control or custody . . . at a given time.” Instruction 3.220, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009). Model Jury Instruction 3.220 goes on to note, however, that the law does not require that someone necessarily have actual physical custody of an object to “possess” it. An object is considered to be in a person’s possession without physical custody if he (she) has knowledge of the object

  • the ability to exercise control over that object, either directly or through another person, and
  • the intent to exercise control over the object.

For example, the law considers you to be in possession of things which you keep in your bureau drawer at home, or in a safe deposit box at your bank.

Whether the defendant possessed [name of the controlled substance] is something that you must determine from all the facts and any reasonable inferences that you can draw from the facts.

Instruction 3.220, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009).

Instruction 3.220 further cautions that possession is not synonymous with

  • “merely being present in the vicinity of a [controlled substance], even if one knows that it is there” or
  • being “associated with a person who controlled the [controlled substance] or the property where [the controlled substance] was found.”

Instruction 3.220, Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009).

Possession implies ‘control and power,’ . . . exclusive or joint . . ., or, in the case of ‘constructive possession,’ knowledge coupled with the ability and intention to exercise dominion and control.” “Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” While presence in an area where contraband is found “alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], . . . presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.”’

Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) (citations omitted); see also Commonwealth v. Paniaqua, 413 Mass. 796, 801 (1992) (“Possession is the intentional exercise of control over an item.”); Commonwealth v. Booker, 31 Mass. App. Ct. 435, 438 (1991) (“Proximity and knowledge do not establish possession unless they permit an inference of control.”) (citation omitted).

In some cases a defendant’s connection to a stash of narcotic drugs has been established largely by the close similarity of the narcotic drugs in his actual possession (i.e., on his person) to the narcotic drugs in the stash. See, e.g., Commonwealth v. Brown, 12 Mass. App. Ct. 988 (1981), where the defendant was convicted of possessing marihuana with intent to distribute based on evidence that the small quantity in his variety store, with manila envelopes, was replicated in a large cache of marihuana, with identical manila envelopes, found in the home of his former wife, where the defendant was “more than a casual visitor.” 12 Mass. App. Ct. at 989. Commonwealth v. James, 30 Mass. App. Ct. 490, 495–96 (1991) (en banc); see also Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 627–29 (2000) (discussing connection to stash as sufficient to show knowledge). But see Commonwealth v. Movilis, 46 Mass. App. Ct. 574, 579 (1999) (insufficient evidence to establish defendant had knowledge of stash in secret compartment of vehicle).

The James court cautioned that

the validity of such an inference depends on many circumstances, such as the distinctiveness of the packaging; and a close similarity, while it may support an inference that the personally held sample came from the stash, does not by itself establish the relation of the person holding the sample to the stash.

Commonwealth v. James, 30 Mass. App. Ct. at 496–97.

The footnotes in James contain a plethora of out-of-state cases on this point. The James case is also interesting in that the case was decided by all the members of the Appeals Court, which was severely split. Indeed, the dissent was joined by seven judges. The Supreme Judicial Court denied further appellate review. See Commonwealth v. James, 411 Mass. 1106 (1992).

In Commonwealth v. Ridge, 37 Mass. App. Ct. 943 (1994), the court found that “[p]ossession of 636.8 grams of cocaine is wholly inconsistent with personal use, and was alone sufficient to warrant inference that defendant intended to distribute cocaine.” See also Commonwealth v. Poole, 29 Mass. App. Ct. 1003, 1004 (1990) (“‘Possession of a large quantity of an illicit narcotic raises an inference of intent to distribute,’ particularly where, as here, the drugs were distinctively packaged.”) (quoting Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 n.8 (1984); other citation omitted).

Possession may also be constructive. Pursuant to G.L. c. 94C, § 34, possession of a controlled substance may be constructive and shown by circumstantial evidence. See Commonwealth v. Pellegrini, 414 Mass. 402 (1993). “Constructive possession” of a controlled substance requires proof that the defendant had knowledge of the location of illegal drugs, plus the ability and intent to exert dominion and control. See Commonwealth v. Owens, 414 Mass. 595 (1993); Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235 (1997); Commonwealth v. Carmenatty, 37 Mass. App. Ct. 908 (1994).

Controlled Substance

What constitutes a controlled substance is defined by statute. G.L. c. 94C, § 1. Model Jury Instruction 7.820 provides that in determining whether the material at issue is a controlled substance, the fact finder “may consider all the relevant evidence in the case, including the testimony of any witness who may have testified either to support or to dispute the allegation that the material in question was [a controlled substance].” Instruction 7.820, “Possession of a Controlled Substance,” Criminal Model Jury Instructions for Use in the District Court (Administrative Office of the District Court 2009).

Traditionally, this element was rather easily met when the Commonwealth introduced the drug certificate resulting from the analysis of the substance by an analyst or assistant analyst of the Department of Public Health or of the University ofMassachusetts Medical School, as per G.L. c. 111, §§ 12–13. In Commonwealth v. Verde, 444 Mass. 279 (2005), the Supreme Judicial Court held these certificates admissible as prima facie evidence of the weight and composition of the substance.

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531–32 (2009), however, the U.S. Supreme Court determined that the admission of a drug certificate violated the Confrontation Clause of the U.S. Constitution. The Court reasoned that the certificates were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause. Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2531–32 (citing Crawford v. Washington, 541 U.S. 36, 51–52 (2004)). Moreover, not only were the certificates “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ Crawford v. Washington, 541 U.S. at 52, but under Massachusetts law the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance, Mass. Gen. Laws. Ch. 111, § 13.” Melendez-Diaz v. Massachusetts, 129 U.S. at 2532.

Thus, unless the parties enter into a stipulation, drug certificates are admissible only if the analyst testifies and is available for cross-examination. See Commonwealth v. Depina, 456 Mass. 238, 248 (2010) (citing Melendez- Diaz v. Massachusetts, 129 S. Ct. at 2532 (2009)).

Once the certificate is introduced, it remains probative evidence notwithstanding the fact that it is contradicted. Commonwealth v. Chappee, 397 Mass. 508, 520 (1986) (“The certificate of the Commonwealth’s chemist . . . constituted some evidence that the material in question was a controlled substance and did not cease to be evidence because the chemist’s testimony on cross-examination could be viewed as leaving open the possibility that the white powder was a synthetic form of cocaine, which is not chemically equivalent to cocaine derived from coca leaves.”). Counsel should be vigilant in ensuring that the certificate does not contain any irrelevant, prejudicial information. In Commonwealth v. Sheline, 391 Mass. 279, 286 (1984), for example, the court found that the trial judge “should have ‘sanitized’ the certificate before it went to the jury. The averment in the certificate that the defendant was ‘aka Howie Tuna’ was inadmissible hearsay and was unnecessary to the integrity of the certificate.”

The Melendez-Diaz court noted that its “opinion, while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 n.14 (2009). Neither the testimony of an analyst nor a certificate is necessarily required to establish the identity of the substance. In Commonwealth v. Connolly, 454 Mass. 808, 829, 831 (2009), the Supreme Judicial Court held that the evidence that a substance was cocaine was overwhelming regardless of the certificate of analysis where the defendant called it crack cocaine and an officer with twenty-five years of experience, who was subject to cross-examination, conducted field tests of the substance that were positive for cocaine. Likewise, in Connolly, the evidence that another substance was cocaine was overwhelming where

a police officer with approximately seventeen years of experience in narcotics investigations who had investigated “high hundreds” of cocaine distribution cases, was one of the officers who found the cocaine in that vehicle. He testified that he field tested chunks of the white substance recovered from the vehicle immediately after it was seized, before the substance was sent to the State police laboratory, and that the substance tested positive for cocaine. He identified the ball of cocaine at trial as the one that was recovered from the minivan. [A state trooper] who had thirteen years of experience conducting drug searches with a narcotics detection canine, also testified that the substance appeared to him to be cocaine. Both of these witnesses were available for cross-examination.

Commonwealth v. Connolly, 454 Mass. at 831. In Commonwealth v. Dawson, 399 Mass. 465 (1987), the court stated that

[p]roof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence. The great weight of authority in this country permits, for example, an experienced user of a controlled substance to testify that a substance that he saw and used was a particular drug. The trial judge will first have to make a finding that any police or drug-user witness’s experience with a drug would or would not permit him to give an opinion as to what drug a particular substance was. If the judge finds the witness qualified, the knowledge and competence of that witness, and his lack of training in chemical analysis, will bear on the weight to be given to his testimony. We suspect it would be a rare case in which a witness’s statement that a particular substance looked like a controlled substance would be alone sufficient to support a conviction.

Commonwealth v. Dawson, 399 Mass. at 467 (citations omitted). “Identification based on past use coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance.” Commonwealth v. Cantres, 405 Mass. 238, 246–47 (1989) (quoting United States v. Harrell, 737 F.2d 971,
978–79 (11th Cir. 1984)).

The weight of a controlled substance for purposes of a trafficking charge may also be established without the use of a certificate of analysis. In Commonwealth v. Connolly, 454 Mass. at 831 (citations omitted), the court noted that

[t]he weight of the 124.31 grams found in the minivan was significant because the defendant was convicted of trafficking in cocaine between one hundred and 200 grams. [The officer] testified that one-eighth ounce of cocaine was the equivalentof 3.5 grams and that one-quarter ounce was double that, or seven grams. From that evidence, the jury could extrapolate that one ounce was twenty-eight grams and that one hundred grams was therefore less than four ounces. . . .

. . . The jury could determine that a large, hard ball weighed more than four ounces. We permit lay witnesses to testify to opinions such as size, weight and distance, all of which require judgment. Jurors can make the same judgments based onadequate evidence.

Lastly, concerning representative testing, in Commonwealth v. Shea, 28 Mass. App. Ct. 28, 33 (1989), the Commonwealth argued that

[w]here numerous suspected bags or other units are received for official analysis, all with substances evidently alike—as to color, consistency, packaging, smell, etc.—it is not necessary, and would be superfluous, to subject each bag to the infrared and ultraviolet tests. It is enough to make representative tests, here five infrareds and four ultraviolets; and this has been the practice. It was on this basis that the State police laboratory issued a certificate covering the nine bags; and under the statute, G.L. c. 111, § 13, the certified statement about the contents must be accepted as prima facie evidence running through the case.

The appellate court accepted the argument. Commonwealth v. Shea, 28 Mass. App. Ct. at 34; see also Commonwealth v. Ramirez, 57 Mass. App. Ct. 475, 477–78 (2003).

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