Heard: October 11, 2017
found and returned in the Superior Court Department on August
motion to dismiss was heard by Kathe M. Tuttman, J.; a
pretrial motion to suppress evidence was heard by her; and
the cases were tried before her.
Erkan for the defendant.
Weisberger, Assistant District Attorney, for the
Present: Milkey, Massing, & Ditkoff, JJ.
defendant, Jorge Polanco, appeals from his Superior Court
convictions of trafficking in heroin, G. L. c. 94C, §
32E(c0, and a school zone violation, G. L. c. 94C, §
32J. We must decide whether to consider time spent in
District Court when calculating the time to be included for
purposes of a speedy trial under Mass.R.Crim.P. 36(b), 378
Mass. 909 (1979), in Superior Court. Consistent with the
plain language of the rule, we conclude that the time the
charges were pending in District Court should not be included
in the calculation. Accordingly, the motion judge properly
denied the defendant's motion to dismiss. Rejecting the
defendant's challenges to the denial of his motion to
suppress and the sufficiency of the evidence, we affirm.
April and May of 2013, law enforcement including the
Billerica police department were conducting an investigation
of a suspected heroin trafficker known as "Johnny,
" later identified as the defendant. As part of that
investigation, Billerica police conducted controlled
narcotics purchases using an informant. When the police
approached the sellers in those controlled purchases, the
sellers admitted to being "runners" for
"Johnny, " whom they identified as the source of
the narcotics. One of the runners agreed to cooperate with
thereafter, the cooperating runner received a telephone call
from "Johnny, " directing him to customers at a
house located at 48 Rogers Street. Prior to that day, that
residence had not been a target of the investigation, and the
police had not yet identified "Johnny" as the
police followed the runner to the residence. A motor vehicle
pulled up outside the residence, and two men exited the
vehicle and spoke to a woman in the house's driveway. The
runner then approached the three persons and engaged in a
hand-to-hand transaction with one of the men. At this point,
the police converged on the driveway with other law
enforcement agents. The police had not yet confirmed
"Johnny's" whereabouts and were not
anticipating his immediate arrest.
police entered the driveway area, a detective observed the
defendant standing several feet inside the open garage. The
defendant, matching the description of "Johnny, "
turned and fled. The detective gave chase through the garage
and into the back yard. The detective believed the defendant
to be "Johnny" and feared that he was likely to
escape or destroy evidence.
the back yard, the detective apprehended the defendant near
the rear fence, facing a shed located in the neighboring
yard. The informant and the runner positively identified the
defendant as "Johnny." Although no contraband was
found on the defendant's person, police retrieved two
bags containing 19.06 grams of heroin next to the
neighbor's shed. ...