DRUG RULING IS A MAJOR SHIFT

CONCORD -- Prosecutors can't wrap multiple drug sales into a single
trial, the state Supreme Court ruled Friday.

The ruling comes in the case of a Nashua man, Sean Brown, who was
convicted of selling heroin to two people on four different occasions
in 2005.

The ruling is a significant change from past practice in the state,
and a local defense lawyer, Eric Wilson of Nashua, said it could
cause further backlogs in the state trial courts, or lead to more
plea bargains in drug cases.

The decision centers on the legal rule that past crimes or other
"propensity evidence" can't be used to convict a person for a
particular crime. The court ruled that individual drug sales are not
sufficiently linked to justify lumping them all into a single trial.

Wilson wasn't involved in Brown's case, but applauded the ruling,
saying that it avoids the risk that a jury might convict a defendant
on weak evidence, reasoning that if a person didsomething repeatedly,
they must be guilty.

"It's a pretty significant change," Wilson said. "Given this ruling,
the Supreme Court has done away with the presumption that where there
is smoke, there must be fire."

In the past, accused drug dealers typically have faced a single trial
for multiple sales, sometimes to multiple buyers. Brown asked for
separate trials, but the trial judge agreed with prosecutors that his
alleged heroin dealing was all a single, common scheme.

Prosecutors argued buyers always called Brown by phone, arranged to
meet at mutually convenient locations and paid cash for the drug.
Still, each sale was a discrete act, the Supreme Court ruled in a
unanimous opinion.

"The fact that the sales all took place under similar circumstances
is not sufficient; acts must be intertwined such that they are
mutually dependent in order to be considered part of a common plan,"
Judge Richard Galway wrote.

"The defendant did not formulate a plan that was dependent upon the
success of each sale; he merely took advantage of opportunities as
they arose," Galway added later. "Each of the sales committed by the
defendant was a discrete event and involved different people. The
success of any individual sale did not depend upon the success of any
other sale."

The court's ruling sends Brown's cases back to Hillsborough County
Superior Court for new trials, and vacates his 5- to 14-year prison
sentence.

Brown, 34, formerly of 49 Worcester St., was jailed after his arrest
in 2005. He was accused of selling small amounts of heroin to two
different police informants on four occasions. The charges were
raised to class A felonies, punishable by up to 7-1/2 to 15 years in
prison, because of Brown's prior drug convictions.

Judge William Groff sentenced Brown to 3-1/2 to seven years, half
what prosecutors had sought. Prosecutors appealed the sentence to the
Sentence Review Board, which agreed Groff was too lenient and raised
Brown's sentence to 5 to 14 years in prison. While inadmissible at
trial, prior criminal records are routinely cited to justify stiffer
sentences for repeat offenders.

Brown served 46 months in federal prison after being convicted on
federal heroin and methamphetamine charges in 1999. He was arrested
again in 2004 after police found 21 grams of alleged heroin and a
pistol in his apartment while investigating a robbery. The brown
powder turned out to be only 10 grams of something other than heroin,
and Brown argued the gun belonged to his wife. Brown was ultimately
convicted only of hindering apprehension, in connection with the
robbery investigation.

Brown was free on bail in the hindering apprehension case when he was
arrested on the heroin dealing charges in 2005. The time he spent
awaiting trial counts toward his sentence, so Brown has already
served nearly three years for the sales.