Opinion
13-P-1835
04-13-2015
COMMONWEALTH v. HERBERT SMITH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Boston Municipal Court, the defendant was convicted of distribution of cocaine (and a related school zone violation, which has subsequently been dismissed in accordance with Commonwealth v. Bradley, 466 Mass. 521 [2013]). On appeal, he argues the judge erred in denying his motion for a required finding of not guilty. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we affirm.
Background. While conducting surveillance in a high drug activity area of the Chinatown section of Boston, police with the Drug Control Unit (DCU) observed Leonardo Johnson (Johnson), someone known to them, walking with another individual later identified as Sean Brewer (Brewer). Detective William Dwan testified that the two appeared to be "scanning the area." He stated that the pair waved to two individuals across the street who were later identified as the defendant and Kyrie Wallace (Wallace). The four converged at an intersection and walked together until the defendant and Brewer separated from the other two and "huddled," standing inches away from each other. The detective observed the defendant's and Brewer's hands move towards each other, then back to their waists; immediately after, they separated. In all, Detective Dwan said, this transaction lasted less than ten or fifteen seconds. Two officers pursued Johnson and Brewer and observed them turn into an alley. Upon approaching the alley, the officers observed Brewer preparing a glass tube that appeared to be a pipe. They recovered a loose piece of what was later confirmed to be cocaine from his pocket.
Meanwhile, the police stopped the defendant and Wallace. From the defendant, Detective Dwan recovered two cellular telephones (cell phones), twenty dollars in United States currency, and a glass pipe of the type commonly used to smoke "crack" cocaine. When Wallace complied with a police officer's request to open his mouth, the officer observed a small plastic bag of a "rocklike" substance resembling "crack" cocaine on Wallace's tongue. Wallace then swallowed the bag, thus preventing its recovery.
Discussion. "[C]ircumstantial evidence is a permissible basis upon which to premise a conviction." Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 434 (2006). Considering the entire "silent movie" of what occurred, see Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992), reasonable jurors were entitled to conclude that the defendant had distributed to Brewer the crack cocaine that he was about to consume. Notably, the police did see a hand-to-hand transaction take place, even if the eyewitness was unable to see drugs or money exchanged. The other evidence supporting that a drug transaction had just occurred (multiple cell phones, high drug activity area, etc.) is of a similar type and quantum to that in other cases in which sufficient evidence has been found. Compare, e.g., Commonwealth v. Tanner, 66 Mass. App. Ct. at 434-435; Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178-179 (2009). Although the defendant was not found with a large amount of cash on him, the money that was found in his possession was consistent with the market price of a unit of "crack" cocaine (as supported by expert testimony). In sum, the evidence, considered in its totality, was sufficient.
The defendant highlights that he was not found with any cocaine on him, but the jury were entitled to infer that no cocaine remained because he had just distributed it to Brewer. Similarly, we see little moment in the fact that loose pieces of a substance resembling "crack" cocaine found in the glass tube that he possessed turned out to be counterfeit (at least when the evidence is viewed in the light most favorable to the Commonwealth).
Judgment affirmed.
By the Court (Grainger, Brown & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 13, 2015.