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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-cityand-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). 

10 The 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.

 

11 During 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.