920 N.E.2d 88 76 Mass.App.Ct. 1109, 920 N.E.2d 88, 2010 WL 199392 (Mass.App.Ct.

) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 76 Mass.App.Ct. 1109, 2010 WL 199392 (Mass.App.Ct.))

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Briefs and Other Related Documents Judges, Attorneys and Experts Only the Westlaw citation is currently available.NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. This decision was reviewed by West editorial staff and not assigned editorial enhancements. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Appeals Court of Massachusetts. COMMONWEALTH v. Richard CUSICK (and a companion case FN1). FN1. Commonwealth v. Russell K. Stroup. No. 08P1410. Jan. 22, 2010. By the Court (McHUGH, VUONO, & MEADE, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 *1 On September 15, 2007, the defendants, Richard Cusick and Russell Stroup, shared a marijuana cigarette on the Boston Common while attending the annual Freedom Rally or Hemp Fest. They were observed by Officer Robert Walsh, a member of the Boston police drug control unit, which had been assigned to monitor the event. The defendants were arrested without incident and booked at a temporary booking station set up on the Common to facilitate the processing of arrests during the rally. Both defendants were subsequently convicted of possession of marijuana in violation of G.L. c. 94C, 34, following a combined jury trial in the Boston Municipal Court.FN2 FN2. This case was tried before the voters of the Commonwealth approved, by statewide ballot initiative, An Act Establishing a Sensible State Marihuana Policy, which went into effect on January 2, 2009. See St.2008, c. 387, 2, 5. The facts are not in dispute. The defendants, who describe themselves as leaders in the marijuana decriminalization movement, FN3 acknowledged that they were smoking marijuana at the time they were observed by Officer Walsh.FN4 They claimed, however, that G.L. c. 94C, 34, is unconstitutional and filed a joint motion to dismiss on that basis. A judge of the Boston Municipal Court denied the motion without holding an evidentiary hearing. On the first day of trial, the defendants filed a motion to reconsider, which was allowed. They also requested and were denied an evidentiary hearing. Following oral

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920 N.E.2d 88 76 Mass.App.Ct. 1109, 920 N.E.2d 88, 2010 WL 199392 (Mass.App.Ct.) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 76 Mass.App.Ct. 1109, 2010 WL 199392 (Mass.App.Ct.))

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argument, the trial judge denied the motion to dismiss.FN5 On appeal, the defendants argue that the judge erred by denying their motion to dismiss without an evidentiary hearing. They also claim that the judge erred by not giving a requested instruction on jury nullification.FN6 We affirm. FN3. Cusick is the associate publisher of High Times magazine. Stroup is the founder of NORML, the National Organization for Reform of Marijuana Laws. FN4. The defendants have conceded below and on appeal that the substance they were smoking was marijuana, and there is no argument before us that MelendezDiaz v. Massachusetts, U.S. , 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) , has any bearing on this case. FN5. After he denied the motion to dismiss but before the jury were sworn, the trial judge, sua sponte, suggested that the charge be converted under G.L. c. 277, 70C, to a civil infraction. Although the Commonwealth did not object, neither defendant opted for this alternative. FN6. The Commonwealth seeks a remand for resentencing on the ground that the judge erred by (1) crediting the defendants for the time they spent in the booking tent on the Boston Common, and (2) waiving all fees, fines, and costs of assessment without determining whether the defendants were indigent. Apart from its failure to provide us with any authority to consider its request, the Commonwealth failed to object

when the sentence was imposed and failed to take any other corrective action that might have been available at the time. These issues are therefore waived. See Commonwealth v. LeFave, 430 Mass. 169, 173, 714 N.E.2d 805 (1999); Commonwealth v. Martinez, 74 Mass.App.Ct. 240, 249250, 905 N.E.2d 592 (2009). The judge did not err either by denying the defendants' motion to dismiss or by denying their request for an evidentiary hearing. As the Commonwealth notes in its brief, the Supreme Judicial Court has previously held that the marijuana possession statute is constitutional. See Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969), and Marcoux v. Attorney Gen., 375 Mass. 63, 375 N.E.2d 688 (1978). As an intermediary appellate court, we are constrained, like the trial judge, to follow the decisions of the Supreme Judicial Court. Ready, petitioner, 63 Mass.App.Ct. 171, 180, 824 N.E.2d 474 (2005). As to the denial of the defendants' request for an evidentiary hearing, we observe that the trial judge reviewed numerous affidavits prepared by notable experts regarding the effects of marijuana on an individual's health and psyche. We discern no abuse of discretion in these circumstances. See Commonwealth v. Arriaga, 438 Mass. 556, 571, 781 N.E.2d 1253 (2003) (where affidavits raise no substantial issue, a judge may rule on a motion to dismiss without holding an evidentiary hearing). Finally, we discern no error in the judge's refusal to instruct the jury that the verdict should reflect the conscience of our community. FN7 The requested

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920 N.E.2d 88 76 Mass.App.Ct. 1109, 920 N.E.2d 88, 2010 WL 199392 (Mass.App.Ct.) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 76 Mass.App.Ct. 1109, 2010 WL 199392 (Mass.App.Ct.))

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instruction is essentially a jury nullification instruction that the defendants were not entitled to receive. See Commonwealth v. Kirwan, 448 Mass. 304, 319, 860 N.E.2d 931 (2007). FN7. Specifically, the defendants requested that the judge instruct the jury that a defendant's act, to be a crime, is more than violation of a statute. It is an offense to the safety and tranquility of our community that, in your judgment as the conscience of our community, warrants our verdict of criminal guilt. The judgments in docket nos. 0701CR007229 and 0701CR007230 are affirmed. Mass.App.Ct.,2010. Com. v. Cusick 76 Mass.App.Ct. 1109, 920 N.E.2d 88, 2010 WL 199392 (Mass.App.Ct.) Briefs and Other Related Documents (Back to top) 2009 WL 1246057 (Appellate Brief) Apellants' Reply Brief (Apr. 14, 2009) Original Image of this Document (PDF) 2009 WL 972395 (Appellate Brief) Brief and Supplemental Appendix for the Commonwealth on Appeal from a Judgment of the Boston Municipal Court (Mar. 20, 2009) Original Image of this Document (PDF) 2008 WL 5151274 (Appellate Brief) Brief of Appellants (Nov. 2008) 2008-P-1410 (Docket) (Aug. 21, 2008)

Judges Meade, Hon. William J. Commonwealth of Massachusetts Appeals Court Boston, Massachusetts 02108 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler Experts Bonnie, Richard J. LAW PROFESSOR MA Expert Evaluator Report Testimony | Profiler

Expert

Grinspoon, Lester, MD MARIJUANA EXPERT Wellesley, MA 02482 Expert Evaluator Report | Expert Challenge Report | Expert Testimony | Profiler Miron, Jeffrey A., PH.D. ECONOMIST MA Expert Testimony | Profiler Saunders, Keith C. SOCIOLOGIST Boston, MA Expert Evaluator Report Testimony | Profiler END OF DOCUMENT

Expert

Judges, Attorneys and Experts(Back to top) Judges | Experts

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Date of Printing: Jan 29, 2014 KEYCITE Com. v. Cusick, 76 Mass.App.Ct. 1109, 920 N.E.2d 88 (Mass.App.Ct., Jan 22, 2010) (NO. 08-P-1410) History Direct History => 1 Com. v. Cusick, 76 Mass.App.Ct. 1109, 920 N.E.2d 88 (Mass.App.Ct. Jan 22, 2010) (Table, text in WESTLAW, NO. 08-P-1410) Review Denied by 2 Com. v. Cusick, 456 Mass. 1104, 925 N.E.2d 546 (Mass. Mar 31, 2010) (Table) Court Documents Appellate Court Documents (U.S.A.) Mass.App.Ct. Appellate Briefs 3 COMMONWEALTH, Appellee, v. Russell STROUP and Richard Cusick, Defendants - Appellants., 2008 WL 5151274 (Appellate Brief) (Mass.App.Ct. Nov. 2008) Brief of Appellants (NO. AC2008-P-1410) 4 COMMONWEALTH OF MASSACHUSETTS, Appellee, v. Richard CUSICK & Russell K. Stroup, Defendants-Appellants., 2009 WL 972395 (Appellate Brief) (Mass.App.Ct. Mar. 20, 2009) Brief and Supplemental Appendix for the Commonwealth on Appeal from a Judgment of the Boston Municipal Court (NO. 2008-P-1410) 5 COMMONWEALTH OF MASSACHUSETTS, Appellee, v. RICHARD CUSICK & RUSSELL STROUP, Defendants-Appellants., 2009 WL 1246057 (Appellate Brief) (Mass.App.Ct. Apr. 14, 2009) Apellants' Reply Brief (NO. 08-P-1410) Dockets (U.S.A.) Mass.App.Ct. 6 COMMONWEALTH v. RICHARD CUSICK & ANOTHER, NO. 2008-P-1410 (Docket) (Mass.App.Ct. Aug. 21, 2008) Expert Court Documents (U.S.A.)

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Mass.App.Ct. Appellate Briefs 7 COMMONWEALTH, Appellee, v. Russell STROUP and Richard Cusick, Defendants - Appellants., 2008 WL 5151274 (Appellate Brief) (Mass.App.Ct. Nov. 2008) Brief of Appellants (NO. AC2008-P-1410) 8 COMMONWEALTH OF MASSACHUSETTS, Appellee, v. Richard CUSICK & Russell K. Stroup, Defendants-Appellants., 2009 WL 972395 (Appellate Brief) (Mass.App.Ct. Mar. 20, 2009) Brief and Supplemental Appendix for the Commonwealth on Appeal from a Judgment of the Boston Municipal Court (NO. 2008-P-1410)

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Date of Printing: Jan 29, 2014 KEYCITE Com. v. Cusick, 76 Mass.App.Ct. 1109, 920 N.E.2d 88 (Mass.App.Ct., Jan 22, 2010) (NO. 08-P-1410)

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Date of Printing: Jan 29, 2014 KEYCITE Com. v. Cusick, 76 Mass.App.Ct. 1109, 920 N.E.2d 88 (Mass.App.Ct. Jan 22, 2010) (NO. 08-P-1410) No references were found within the scope of KeyCite's citing case coverage.

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