Commonwealth v. Laureus (Lawyers Weekly No. 12-055-17)

Criminal No. 16-404
Defendant James Laureus is charged with trafficking more than 36 grams of cocaine, distribution of oxycodone, possession with intent to distribute cocaine, and possession with intent to distribute oxycodone. Each crime is also indicted with an habitual criminal sentencing enhancement under G.L. c. 279, § 25(a). The case is before me on defendant’s motion to dismiss the habitual criminal indictments under Commonwealth v. McCarthy, 385 Mass. 160 (1982). For the following reasons, the motion is ALLOWED.
On August 11, 2016, the grand jury heard the following information:
The Charged Offense. On March 24, 2016, the Medford and Woburn police were investigating Eric Gullage (“Gullage”). As part of the investigation, undercover officer Christina Bartolomeu (“Bartolomeu”) contacted Gullage by phone and asked to buy ten oxycodone pills. (Oxycodone is a Class B controlled substance.) The two arranged a meeting for later that day in Medford.
Bartolomeu drove to the designated location. Woburn and Medford detectives, and task force officers from the Drug Enforcement Agency (“DEA”), conducted surveillance. Gullage approached and entered Bartolomeu’s vehicle. Minutes later the defendant entered the area in a
white Ford van and parked behind Bartolomeu’s vehicle. Bartolomeu then gave Gullage the agreed upon price — $ 350 — for the pills. Gullage exited the vehicle and entered the white van, returning to Bartolomeu’s car minutes later with a napkin containing ten pills. A lab report confirmed the pills contained oxycodone.
Defendant left the area in the white van. The police stopped him and ordered him out of the van. They found the marked currency that Bartolomeu handed to Gullage in defendant’s right jacket pocket. Defendant was detained. During a search at the Medford police station, officers discovered individually-wrapped substances, later identified as cocaine and oxycodone, in defendant’s underwear.
Defendant’s Prior Convictions. By March 2016, defendant had two prior convictions out of Suffolk Superior Court for distribution of a Class B controlled substance. The convictions arose out of a single prosecution in Criminal No. 04-10587, and were Indictment Nos. 001 and 0031 in that docket. Following defendant’s guilty pleas on those two charges, on November 3, 2010, defendant was sentenced to five years to five years and one day in prison on each charge.
The Commonwealth did not provide the grand jury with the plea colloquy, a plea agreement, or a police report regarding details of the underlying offense. The indictments indicate the two counts constituted two purchases of cocaine by the same undercover officer as part of a single investigation and course of conduct over five days. Indictment 001 read:
JAMES LAUREUS, on April 30, 2004, did unlawfully, knowingly and intentionally distribute to Trooper Mary Wakeham a certain controlled substance, to wit: cocaine, a Class B controlled substance under the provisions of G.L. c. 94C, § 31.
Indictment 003 read:
1 In one place, the grand jury testimony incorrectly refers to one of the convictions as Indictment No. 002. Other documents provided to the grand jury reflect that Indictment No. 002, a school zone charge, was dismissed.
JAMES LAUREUS, on May 4, 2004, did unlawfully, knowingly and intentionally distribute to Trooper Mary Wakeham a certain controlled substance, to wit: cocaine, a Class B controlled substance under the provisions of G.L. c. 94C, § 31.
The grand jury heard no evidence to suggest that the two charges were separated by an intervening arrest.
Based on this evidence, defendant was indicted as a habitual criminal under G.L. c. 279, § 25(a) on each of the charges he now faces.2 The habitual criminal indictments state that before committing the offense charged James Laureus was “twice convicted of crime, sentenced, and committed . . . for terms not less than three years each,” specifically:
said James Laureus was convicted of the crime of Distribute Class B, docket SUCR2004-10587-001, and sentenced by the Suffolk Superior Court on November 3, 2010 to a term of not more than five years and one day and not less than five years and was duly committed; and said James Laureus was convicted of the crime of Distribute Class B, docket SUCR2004-10587-003, and sentenced by the Suffolk Superior Court on November 3, 2010, to a term of not more than five years and one day and not less than five years and was duly committed.
Defendant now challenges the adequacy of the evidence presented to the grand jury to support the habitual criminal enhancements.
Courts generally will not review the adequacy or competency of evidence before the grand jury. Commonwealth v. Salman, 387 Mass. 160, 166 (1982). However, if the grand jury does not hear reasonably trustworthy information sufficient to warrant a prudent man in
2 G.L. c. 279, § 25(a) states: “Whoever is convicted of a felony and has been previously twice convicted and sentenced to state prison or state correctional facility or a federal corrections facility for a term not less than 3 years by the commonwealth, another state or the United States, and who does not show that the person has been pardoned for either crime on the ground that the person was innocent, shall be considered a habitual criminal and shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.”
believing that the defendant committed an offense, the indictment is “fatally defective.” McCarthy, 385 Mass. at 162-63. To satisfy the McCarthy standard, the Commonwealth must present evidence to the grand jury on each element of the crime charged. Commonwealth v. Moran, 453 Mass. 880, 884 (2009). “Probable cause to sustain an indictment is a decidedly low standard.” Commonwealth v. Hanright, 466 Mass. 303, 311 (2013) (and cases cited). The evidence presented to the grand jury must consist of “reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” Id. at 311-312, quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). Probable cause may be shown with circumstantial evidence and based on inferences drawn from other known facts. See, e.g., Commonwealth v. Stevenson, 474 Mass. 372, 378 (2016) (indictment may be based entirely on hearsay); Commonwealth v. Cheremond, 461 Mass. 397, 405 (2012) (grand jury could infer lack of consent); Hanright, 466 Mass. at 313 (grand jury could infer joint venture).
In the context of an habitual criminal indictment, dismissal is appropriate if the grand jury is presented insufficient evidence “to determine whether the defendant’s prior convictions arose out of separate episodes or a single criminal incident or spree.” Commonwealth v. Garvey, 477 Mass. 59, 2017 WL 1947879 at *6 (May 9, 2017) (emphasis added). In Garvey, the Court affirmed dismissal of habitual criminal indictments under G.L. c. 279, § 25(a), because the grand jury did not hear evidence that defendant’s prior convictions arose “from separate incidents or episodes of criminal behavior.” Garvey, 2017 WL 1947879 at *1.
In the present case, the grand jury was presented with the indictments relating to the defendant’s prior convictions, which charged that defendant sold cocaine to the same undercover officer on two occasions four days apart. After Garvey, the critical inquiry is whether the grand
jury heard sufficient evidence to permit a reasonable person to conclude the events constituted “separate episodes,” rather than “a single criminal incident or spree.”3 Id. at *6. Garvey does not stand for the proposition that events occurring on different dates necessarily constitute “separate episodes.” Instead, it implicitly invites consideration of “information as to the underlying criminal acts,” including “when the offenses took place or how they were related to each other.” Id.
By contrasting “separate episodes” to “a single . . . spree,” id., the Court in Garvey further recognized that related events on different dates may constitute a single episode. Massachusetts appellate courts have used the term “spree” in a variety of contexts, including to describe incidents occurring over time and over various dates. See, e.g., Commonwealth v. Rodriguez, 476 Mass. 367, 370 n.6 (2017) (“same transaction” test rejected in double jeopardy analysis because it “would bar separate prosecutions for multiple crimes committed during the course of a crime spree, or for conspiracy and the substantive act”); Commonwealth v. Magri, 462 Mass. 360, 364-365 (2012) (32 indictments properly joined for trial where “defendant’s alleged ‘crime spree’ comprised similar offenses (theft of money or property, generally obtained by breaking into houses and automobiles) occurring within a limited geographic region during a two-month period,” the offenses were “linked by a similar modus operandi” and “constituted a larger plan or scheme”); Commonwealth v. Reaves, 434 Mass. 383, 386-387, 389 n.10 (2001) (drive-by shooting into park with two firearms, wounding one and killing another, referred to as
3 Garvey does not purport to change the law, but to clarify what had been assumed by the appellate courts. Garvey, 2017 WL 1947879 at *4 (“the concept that the prior convictions must stem from separate episodes has been an implied assumption in our earlier holdings”). See also, e.g., Commonwealth v. Peters, 16 Mass. L. Rep. 608, 2003 WL 22052044 at *5 (Aug. 6, 2003) (Billings, J.) (“A spree is not a habit. To be adjudged an habitual criminal under the statute, the defendant must have at least two prior convictions with qualifying sentences, resulting from separate, prior criminal episodes.”).
a “shooting spree”); Commonwealth v. Cardarelli, 433 Mass. 427, 427, 435 (2001) (“gambl[ing] at various casinos in Connecticut and Atlantic City, New Jersey, between November 9, 1996 . . . and November 24, 1996” referred to as a “gambling spree”); Commonwealth v. Blake, 428 Mass. 57, 58-59 (1998) (defendants firing 15-20 rounds across crowded intersection at outdoor festival, wounding four, referred to as a “shooting spree”); Commonwealth v. Banuchi, 335 Mass. 649, 655-56 (1957) (“steadily drinking for many days” referred to as a “prolonged drinking spree”); Commonwealth v. Price, 72 Mass. App. Ct. 280, 281, 285 (2008) (“elderly-in-distress [telephone] scam” reported at least ten times referred to as “the larger crime spree under investigation”).
Here, the record shows that the defendant twice committed substantially the same offense: selling cocaine to the same undercover police officer, Mary Wakeham, four days apart. The fact that the acts underlying these two prior convictions were identical and only four days apart strongly suggests the conduct was related and part of a single episode, “single criminal spree,” or single course of conduct. In the context of a prosecution for drug distribution, the fact that the sales occurred close in time but on different dates is, without more, insufficient to allow a reasonably prudent person to conclude that they constituted separate episodes.4 In other
4 The court need not shield its eyes from the fact that drug distribution investigations often involve a series of undercover purchases of drugs from a suspect in close succession. See, e.g., Commonwealth v. Clagon, 465 Mass. 1004, 1005 (2013) (three controlled buys in 30 days); Commonwealth v. Connolly, 454 Mass. 808, 811 (2009) (multiple controlled buys, including two purchases by undercover officer on two consecutive days); Commonwealth v. Staines, 441 Mass. 521, 523 (2004) (six controlled buys in one month); Commonwealth v. O’Day, 440 Mass. 296, 298-300 (2003) (three controlled buys in 30 days); Commonwealth v. Cruz, 430 Mass. 838, 841-842 (2000) (multiple sales to undercover officer over the course of one month, including two occasions where two purchases were made the same day); Commonwealth v. Monteiro, 80 Mass. App. Ct. 171-172, 175 (2011) (five controlled buys in one month, including two buys occurring four days apart). This law enforcement methodology would likely be known to most grand jurors who had sat even for a few weeks hearing the presentation of drug cases.
contexts, the Supreme Judicial Court has identified a “spree” where related events occurred over the course of far longer periods. See Magri, 462 Mass. at 364-365 (“crime spree” over two-month period); Cardarelli, 433 Mass. at 427, 435 (“gambling spree” over fifteen-day period); Banuchi, 335 Mass. at 655-56 (“prolonged drinking spree” over the course of “many days”).
Of course, there may be situations where a defendant is charged in a single case with separate acts occurring four days apart that constitute separate episodes. Two separate violent crimes or two separate bank robberies, which might properly be severed from each other for trial, might constitute separate episodes. In the context of a drug prosecution, drug sales four days apart that are separated by an intervening arrest, or involve the sale of different types of drugs or involve markedly different conduct might constitute different crimes. On the other hand, the Supreme Judicial Court’s ruling that the habitual offender enhancement was intended to target those individuals who “persist[ ] in crime notwithstanding [prior] discipline,” Garvey, 2017 WL 1947879 at *4, quoting Commonwealth v. Richardson, 175 Mass. 202, 208 (1900), suggests the need for some intervening “discipline,” although that was not the case in other cases that precede Garvey. See, e.g., Commonwealth v. Keane, 41 Mass. App. Ct. 656, 660 (1996). I need not probe the limits of the definition of separate criminal episodes.
In contrast to Garvey, here there was evidence of when the conduct underlying the two prior convictions occurred, and some evidence about the underlying acts. The fact that the two prior convictions occurred on different dates is suggestive of separate episodes, but also consistent with a single “episode” or “spree.” All of the facts presented to the grand jury related to the underlying acts are consistent with a single spree, and not multiple episodes. The Commonwealth did not present sufficient facts regarding the prior convictions to allow a reasonable grand jury to conclude that the two prior convictions were for separate episodes as
opposed to related acts occurring on two different dates that were part of a single spree. The information presented to the grand jury indicated that the two charges were originally returned by the grand jury together, prosecuted together, and resulted in a single sentence; involved the sale of the same substance, which was sold to the same undercover officer, and occurred only four days apart. From all evidence presented to the grand jury, the two convictions appear to have been “a single incident or spree” and not “separate episodes.” The Commonwealth did not meet its burden to establish probable cause to support the habitual criminal portions of the indictments.
Defendant’s Motion to Dismiss (Docket #15) is ALLOWED. The habitual criminal indictments attached to Indictments 001-004 are hereby dismissed.
Dated: May 18, 2017 Peter B. Krupp
Justice of the Superior Court

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