Opinion
18-P-1179 18-P-1186
12-17-2019
COMMONWEALTH v. Stephanie REESOR (and nine companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendants in these companion cases were convicted of conspiracy to traffick in cocaine, conspiracy to commit money laundering, and multiple substantive offenses alleging cocaine trafficking and possession of cocaine with intent to distribute. The indictments followed a month-long investigation of the cocaine distribution operation of Robert Hairston and his coconspirators in and around Framingham. Ultimately, Robert Hairston and codefendants Christine Williams, Mark Perkins, Chenile Garcia, Calvin Hodge, and Nasean Johnson, pleaded guilty. Defendants Stephanie Reesor (Robert's girlfriend) and Norma Hairston (Robert's mother) proceeded to trial. The evidence at trial included recorded telephone conversations captured during a court-authorized wiretap, police surveillance of the coconspirators' drug distribution activities, evidence seized during the execution of multiple search warrants, and the testimony of cooperating codefendant Christine Williams.
Reesor was convicted of trafficking in cocaine over one hundred grams, G. L. c. 94C, § 32E (b ) (3), trafficking in cocaine over eighteen grams, G. L. c. 94C, § 32E (b ) (1), possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c ), conspiracy to traffick in cocaine over 200 grams, G. L. c. 94C, § 40, conspiracy to traffick in cocaine over one hundred grams, G. L. c. 94c, 40, and conspiracy to commit money laundering, G. L. c. 274, § 7. Hairston was convicted of possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c ), money laundering, G. L. c. 267A, § 2, conspiracy to traffick in cocaine over 200 grams, G. L. c. 94C, § 40, and conspiracy to commit money laundering, G. L. c. 274, § 7.
Because Robert and Norma Hairston share a surname, we refer to Robert Hairston as "Robert."
On appeal, the defendants' principal claim is that the evidence supporting some of the convictions was insufficient. They also claim error in the admission of cocaine seized from coconspirator Perkins's residence. Reesor argues separately that the judge did not adequately consider her defense of duress, and Hairston argues separately that the judge erred in denying her motion for severance, and in imposing an unconstitutional sentence. We conclude that the evidence supporting Hairston's conviction of possession of cocaine with intent to distribute was insufficient, and we therefore reverse the judgment on that indictment. Otherwise, we affirm.
Discussion. 1. Severance. Hairston claims that the judge abused her discretion when she denied Hairston's motion to sever her trial from that of codefendant Reesor. See Commonwealth v. McAfee, 430 Mass. 483, 485 (1999) (denial of severance reviewed for abuse of discretion). We disagree. There is a presumption in favor of joint trials where the allegations against codefendants "arise out of the same criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise." Mass. R. Crim. P. 9 (b), 378 Mass. 860 (1979). Here, it is undisputed that the charges against Reesor and Hairston constituted parts of a conspiracy. To justify severance in these circumstances, the defendant must show that "the defense of [the] defendant and that of a codefendant are ‘antagonistic to the point of being mutually exclusive.’ " Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 118 (2003), quoting Commonwealth v. Stephens, 44 Mass. App. Ct. 940, 944 (1998). A defendant is not entitled to severance simply because she may have a different trial strategy or because her chances of acquittal may be improved if she were tried alone. Compare Commonwealth v. Moran, 387 Mass. 644, 658-659 (1982).
Hairston argued at trial that she knew her son Robert was involved in the drug business, but that she did not participate. Through counsel, she challenged the cooperating coconspirator's (Williams) credibility and asked the jury to reject her testimony. Reesor did not challenge Williams's testimony. Instead she argued that she participated in the conspiracy only because she was threatened and intimidated by Robert. While these defenses were inconsistent, they were not "antagonistic to the point of being mutually exclusive." Suarez, 59 Mass. App. Ct. at 118, quoting Stephens, 44 Mass. App. Ct. at 944. "Defenses are mutually antagonistic and irreconcilable where ‘[t]he sole defense of each was the guilt of the other,’ or ‘where the acceptance of one party's defense will preclude the acquittal of the other’ " (citations omitted). Commonwealth v. Akara, 465 Mass. 245, 256 (2013). Here, Hairston's general denial was independent of Reesor's duress defense. The jury could have accepted Reesor's duress defense without convicting Hairston and vice versa. Therefore, the defenses were not mutually exclusive, and the judge did not abuse her discretion in denying Hairston's motion to sever.
2. Sufficiency. a. Reesor. Reesor does not dispute her involvement in Robert's drug business. She claims, however, that the Commonwealth produced insufficient evidence regarding the weight of the cocaine supporting her convictions of trafficking and conspiracy to traffick in cocaine. We are not persuaded.
To prove trafficking, the Commonwealth was required to prove (1) that the defendant possessed a controlled substance, (2) that the substance was controlled, (3) that the defendant possessed the substance knowingly and intentionally, (4) that the defendant specifically intended to distribute, dispense, or manufacture the controlled substance, and (5) that the controlled substance met the specified weight threshold. G. L. c. 94C, § 32E (b ). The Commonwealth was not required to prove that the defendant knew the weight of the drugs that she possessed. Commonwealth v. Rodriguez, 415 Mass. 447, 452-454 (1993). To prove the defendant's participation in a conspiracy, the Commonwealth must have shown that she agreed with one or more persons to commit a crime. See Commonwealth v. Albert, 51 Mass. App. Ct. 377, 384 (2001). We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the required weight thresholds beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The jury heard an intercepted telephone call indicating that Robert negotiated to buy "two" for "52" from Johnson at the Natick Mall on April 23, 2014. Other intercepted telephone conversations indicated that Robert "usually" purchased cocaine in 125-gram quantities, and there was expert testimony that two 125-gram packages of cocaine could be purchased for $5,200. The jury also heard an intercepted call between Robert and Reesor in which Reesor agreed to go to the Natick Mall with Robert on April 23, 2014, with the understanding that she would then "go home and put some together." Investigators observed Robert meet Johnson in the mall parking lot on April 23, 2014, and enter Johnson's vehicle for a brief period. Robert exited, walked to Reesor's car which was parked in the same lot, and got in.
Reesor admitted to police in a postarrest interview that she received cocaine from Robert at the Natick Mall and that her job was to take it home and package it for resale. She claimed, however, that she only received sixty grams. Ultimately, the jury rejected Reesor's testimony regarding the quantity. A rational juror could have concluded from the totality of the evidence that Robert entered Reesor's car on April 23, 2014, with two 125-gram bags of cocaine which Reesor took with the intent to cut and package the cocaine for resale. Evidence of this transaction alone, when viewed in a light most favorable to the Commonwealth, was sufficient to prove beyond a reasonable doubt that Reesor was guilty of trafficking cocaine in an amount exceeding one hundred grams, and conspiracy to traffick cocaine in an amount exceeding one hundred grams.
The jury also heard evidence that, following the transaction at the Natick Mall, Reesor made at least two trips to Boston to pick up cocaine from Johnson. Evidence of these transactions, together with the seizures of over 1,300 grams of cocaine from coconspirators Hodge, Perkins, Garcia, and Robert on May 1, 2014, was sufficient to prove that the overarching conspiracy involved greater than 200 grams of cocaine.
Reesor does not challenge the sufficiency of the evidence supporting her convictions of trafficking in cocaine exceeding eighteen grams and possession of cocaine with intent to distribute.
b. Hairston. Hairston argues that the evidence supporting her conviction of possession of cocaine with intent to distribute on April 17, 2014, was insufficient because there were no drugs seized or observed in her possession on that date. We agree. To sustain its burden of proof on this charge, the Commonwealth was required to prove that Hairston "(1) possessed cocaine, (2) knowingly or intentionally, and (3) with intent to distribute." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 425 (1985). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Id. at 426.
Here, the Commonwealth relied on circumstantial evidence of recorded telephone conversations between Hairston and Reesor on April 17, 2014, in which Hairston talked about "the stuff" and stated, "I was trying to bag it, but I don't know how, I wanted to do it exactly how [Reesor] does it." Shortly thereafter, Hairston asked Reesor to deliver to her the "scale and the box too." According to the Commonwealth, these recorded telephone conversations, together with other evidence of Hairston's involvement in the ongoing cocaine distribution conspiracy, were sufficient to prove beyond a reasonable doubt that Hairston had at least constructive possession of cocaine on April 17, 2014, for the purpose of cutting and packaging it for resale. See Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004) (constructive possession exists where defendant has "knowledge coupled with the ability and intention to exercise dominion and control" over contraband).
We agree that these telephone conversations, viewed in the light most favorable to the prosecution, were sufficient to prove that the defendant agreed to cut and package cocaine on April 17, 2014. They do not prove beyond a reasonable doubt that she did so. We have found no Massachusetts case in which a defendant has been convicted of possession of a controlled substance with intent to distribute without the suspected controlled substance having been seized, or at least observed, in the defendant's possession. There was no such evidence here.
By contrast, the evidence of Reesor's trafficking in cocaine on April 23, 2014, included her admission that she received cocaine from Robert at the Natick Mall.
The Commonwealth relies on Commonwealth v. Cantres, 405 Mass. 238 (1989), for the proposition that a defendant can be convicted of a controlled substance offense without the controlled substance having been seized or tested. But in Cantres the defendant was charged only with conspiracy to violate the Controlled Substances Act. He was not charged with the substantive offense of possession with intent to distribute. Moreover, in Cantres there was testimony from a witness who purchased a quantity of suspected heroin from the defendant on the date in question. Id. at 245. Here, no witness observed Hairston in possession of cocaine on April 17, 2014. Even viewed in the light most favorable to the Commonwealth, the telephone conversation in which Hairston expressed her intent to take possession of cocaine to cut and package it, was not sufficient to prove beyond a reasonable doubt that she did so.
The Commonwealth also cites United States v. Walters, 904 F.2d 765, 770-771 (1st Cir. 1990), and United States v. Harrell, 737 F.2d 971, 979-980 (11th Cir. 1984). In each of those cases, however, there was testimony from a drug user who observed the defendant in possession of a controlled substance at the relevant time. There was no such evidence in this case.
Hairston also challenges the sufficiency of the evidence supporting her convictions of money laundering and conspiracy to commit money laundering. To establish the elements of money laundering, the Commonwealth was required to prove beyond a reasonable doubt (1) that Hairston possessed a monetary instrument or other property derived from criminal activity, (2) that she did so knowingly, and (3) that she possessed that monetary instrument or property with the intent to promote, carry on, or facilitate the criminal activity. See G. L. c. 267, § 2.
The Commonwealth's money laundering theory at trial was that after Christine Williams was arrested in possession of 253 grams of Robert's cocaine, Hairston and Robert agreed to use the proceeds of Robert's drug business to post Williams's bail out of concern that Williams might agree to cooperate with law enforcement. In support of that theory, the Commonwealth presented Williams's testimony that Hairston told her that "Robert had worked hard to make sure that [she] got out of jail," and that Hairston "got in contact" with Williams's sister who eventually posted the bail with Robert's money. Id. Williams's testimony on this point was corroborated by a recorded conversation between Hairston and Robert in which Robert directed Hairston to give $8,000 to Reesor, so that they would "have at least 7,500 for bail." Further, there was ample evidence from which the jury could reasonably infer that Hairston was aware that the bail money came from the proceeds of Robert's drug sales. At one point, in a discussion with Reesor about a trip to Boston to pick up additional drugs, Hairston said, "the thing is [Robert] needs something to make money to get [Williams] out. If you don't get nothing you can't do nothing." From this evidence, a rational juror could have inferred (1) that Williams's bail was posted by her sister who acted at the direction of Hairston and Robert, (2) that the bail money was derived from Robert's drug sales, and (3) that it was posted, at least in part, to prevent Williams from cooperating with investigators.
3. Evidentiary issue. Investigators seized over a kilogram of cocaine while executing a search warrant at the residence of coconspirator Mark Perkins on May 1, 2014. Over objections by both defendants, the judge allowed the Commonwealth's motion in limine to admit the cocaine as evidence of Perkins's participation in the drug trafficking conspiracy. On appeal, both defendants argue that the prejudicial impact of that quantity of cocaine outweighed its probative value, and that they were deprived of a fair trial as a result.
We review the judge's evidentiary ruling on the motion in limine for abuse of discretion. Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). "Whether proffered ‘evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.’ " Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). Here, Perkins was named as a coconspirator with Reesor in the conspiracy to traffick over one hundred grams of cocaine on April 23, 2014. The cocaine seized from Perkins's residence on May 1, 2014, was probative of his role in that conspiracy as the supplier of the cocaine that Johnson delivered to Robert at the Natick Mall, and Robert, in turn, delivered to Reesor to cut and package. Therefore, as to Reesor, we discern no palpable error or abuse of discretion in the admission of the cocaine seized from Perkins's residence.
As to Hairston, the admissibility of the cocaine was a closer question. None of the indictments charging Hairston named Perkins as a coconspirator and the Commonwealth conceded that Hairston never had contact with Perkins. But even assuming, without deciding, that the cocaine seized from Perkins's residence was not relevant on the indictments charging Hairston, and therefore inadmissible as to her, we discern no cognizable prejudice. An error is not prejudicial if the error did not influence the jury or had "but very slight effect" (quotation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Here the Commonwealth's case against Hairston was strong without the cocaine seized from Perkins's residence. The jury heard testimony from Williams, a cooperating coconspirator, describing Hairston's role in the conspiracy, and heard multiple recorded conversations in which Hairston's own statements confirmed that role. Moreover, the judge instructed the jury that the cocaine seized from Perkins was not attributed to the defendants, but only illustrated Perkins's role in the conspiracy. We presume the jury followed that instruction, see Commonwealth v. Gentile, 437 Mass. 569, 580 (2002), and we discern no prejudicial error.
4. Duress. Reesor testified that she participated in Robert's drug business only because Robert threatened and abused her, and that she had no reasonable means of escape. Based on this testimony, the judge accurately instructed the jury on the requirements of a duress defense and explained that the Commonwealth was obligated to prove beyond a reasonable doubt that Reesor did not act under duress. On appeal, Reesor claims that the judge should have allowed her motion for a directed verdict of not guilty at the close of all the evidence based on her duress defense. We disagree. Because the duress defense was based entirely on Reesor's credibility as a witness, consideration of that defense was for the jury. See Commonwealth v. Mendez, 476 Mass. 512, 524 (2017) (credibility of witness is for jury to decide). The motion for a required finding of not guilty after the close of the evidence was properly denied.
To raise a defense of duress, the defendant must have demonstrated a "present, immediate, and impending threat of such a nature as to induce a well-founded fear of death or of serious bodily injury if the criminal act is not done; the [defendant] must have been so positioned as to have had no reasonable chance of escape." Commonwealth v. Robinson, 382 Mass. 189, 199 (1981).
5. Hairston's sentence. Hairston was sentenced to not less than eight years and not more than eight years and one day in State prison for the offense of conspiracy to traffick in over 200 grams of cocaine. On the remaining convictions, the judge imposed a four-year term of probation. On appeal, Hairston claims that the sentence was unconstitutional because the judge punished her for exercising her right to trial. We disagree.
We review sentences only "for errors of law or constitutional violations" and "should not do so merely for matters concerning alleged disparities in sentencing." Commonwealth v. Alves, 50 Mass. App. Ct. 796, 810 (2001), quoting Commonwealth v. Grimshaw, 412 Mass. 505, 513 (1992). "A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence." Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). While it is error to increase a defendant's sentence merely because she elects a trial, we do not presume vindictiveness merely because a postverdict sentence exceeds a pretrial offer. Commonwealth v. Johnson, 27 Mass. App. Ct. 746, 750 (1989). A judge does not act vindictively when the sentence imposed aligns with the sentencing criteria for the crime. Id. at 751-752. Here, the sentence was within the statutory framework and was less than the range called for by the Massachusetts Sentencing Guidelines. The judge's isolated questions to the defendants, "So what was happening? Were you guys just blind?" do not suggest a "reasonable likelihood of vindictiveness." Id. at 750, quoting United States v. Goodwin, 457 U.S. 368, 373 (1982). There is no evidence that the judge injected herself in the plea negotiations or otherwise applied pretrial pressure to the defendant to plead guilty. Accordingly, we discern no constitutional error in the sentence imposed.
We see no merit in Hairston's argument that the disparity between her sentence and those imposed on her coconspirators was evidence of the judge's vindictiveness. A defendant's decision to accept responsibility and plead guilty before trial is a factor the judge may properly consider in sentencing. See Johnson, 27 Mass. App. Ct. at 751. Moreover, not all of the coconspirators were sentenced more leniently. Robert was sentenced to fifteen years in prison.
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Conclusion. The judgments against Reesor are affirmed. As to Hairston, the judgment of possession of cocaine with intent to distribute is reversed, the verdict is set aside, and judgment for Hairston shall enter on that indictment. The remaining judgments against Hairston are affirmed.
So ordered.
affirmed in part; reversed in part