438 Mass. 1013

January 28, 2003

Related Cases:

A jury in the Superior Court convicted the defendant of trafficking in cocaine in excess of one hundred grams, G. L. c. 94C, ยง 32E (b) (3). The defendant appealed. The Appeals Court reversed the conviction on the ground that the judge improperly denied the defendant's motion for a required finding of not guilty. Commonwealth v. James, 54 Mass. App. Ct. 726 (2002). For reasons set forth in its opinion, the Appeals Court held that "the evidence of possession was insufficient as matter of law." Id. at 731. Given its holding that there was insufficient evidence that the defendant was a possessor of the cocaine, the court stated that it was unnecessary to review the defendant's additional claim that improper remarks in the prosecutor's closing argument created a substantial risk of a miscarriage of justice. Id. at 726.

We granted the Commonwealth's application for further appellate review. After reviewing the evidence, we agree that the defendant's conviction should

Page 1014

be reversed on the ground stated by the Appeals Court. Therefore, like the Appeals Court, we do not reach the issue of the prosecutor's closing remarks.

Accordingly, the judgment is reversed, the verdict set aside, and the judgment is to enter for the defendant.

So ordered.

Timothy J. Smyth, Assistant District Attorney, for the Commonwealth.

Nadell Hill for Henry James.