Com. v. Dancy

• Decision Date: 02 September 2009
• Docket Number: No. 08-P-280.,08-P-280.
• Citation: 912 N.E.2d 525,75 Mass. App. Ct. 175
• Parties: COMMONWEALTH v. Edward DANCY.
• Court: Appeals Court of Massachusetts

912 N.E.2d 525

75 Mass. App. Ct. 175

COMMONWEALTH v. Edward DANCY.

No. 08-P-280.

Appeals Court of Massachusetts, Suffolk.

Argued May 1, 2009.

Decided September 2, 2009.

Joanne T. Petito for the defendant.

Carina R. Canaan, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, McHUGH, & MEADE, JJ.

KANTROWITZ, J.

The defendant was convicted by a jury of distribution of cocaine in violation of G.L. c. 94C, § 32A, and distribution within 1,000 feet of a school zone in violation of G.L. c. 94C, § 32J. On appeal, the defendant argues that (1) the trial judge erred in denying his motion for a required finding of not guilty; (2) he was deprived of his right to a fair trial because a juror slept through testimony; (3) the judge improperly admitted expert testimony; (4) the judge failed to instruct the jury on an essential element of the crime of distribution; and (5) the Commonwealth's closing argument was improper. He also argues ineffective assistance of counsel. With some reservations on the sleeping juror issue, and inviting counsel to file a motion for a new trial on that issue, we affirm.

Motion for required finding. In determining whether the judge properly denied the defendant's motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). A jury could have found the following facts.

On August 28, 2006, around 7:00 P.M., Officers Patrick Champagnie and Kenneth Reid of the Boston police drug control unit were surveilling the area of Tremont and West Springfield Streets in the South End section of Boston. The officers in their unmarked car parked on Tremont Street about two car spaces away from West Springfield Street. Officer Champagnie observed a woman, Leanne Scardoni, walk from around the corner on West Springfield Street out onto Tremont Street, pace back and forth while looking around, and then walk back down West Springfield Street. He saw her return to the corner to look around several times over the course of ten minutes. When she was out of sight on West Springfield Street, Officer Champagnie observed a grey Toyota Camry automobile, driven by the defendant, pull up and park behind the unmarked police car. Scardoni again walked out onto Tremont Street, walked directly to the Camry, and entered into the front passenger seat. Officer Champagnie observed Scardoni turn her back toward the passenger window and lean toward the center of the car. The defendant turned toward her and they appeared to have a brief conversation.

In less than a minute, Scardoni exited the car and began walking toward West Springfield Street. The defendant exited the car a few moments later, met up with her at the corner of West Springfield and Tremont Streets, and spoke with her briefly. They parted and Scardoni stopped to sit down on the steps of the first apartment building on West Springfield Street. Officer Champagnie approached Scardoni and observed her packing a pipe with "crack" cocaine.¹

The defendant kept walking down West Springfield Street and entered the basement of a church that was hosting a Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meeting. Officers Walsh, Donga, and McDonough, who were also surveilling the area and had learned from Officer Champagnie that drugs were found on Scardoni, placed the defendant under arrest.

At booking, a search of the defendant yielded no drugs, but $536 in cash, including one crumpled twenty dollar bill that was separate from the rest of the cash, was recovered. The police found one cellular telephone (cell phone) on the defendant and two other cell phones in his car.

Detective Timothy Lynch testified that the area of Tremont Street and West Springfield Street has a "medium to high" level of drug distribution. He stated that crack cocaine is commonly sold in denominations of ten dollars, twenty dollars, and higher quantities. Further, he testified that drug dealers commonly have multiple cell phones to separate drug transaction telephone calls from personal telephone calls. He acknowledged that it is quite possible for a drug dealer to have no drugs on his person.

Officer Champagnie testified that there is an elementary school located on West Springfield Street that he passed many times during work. He saw young children playing and being picked up in front of the school. He measured the distance from the school to the location of the defendant's parked car to be 450 feet. Officer Donga also testified that his former brother-in-law used to work at the school and that it was a Boston public elementary school.²

The defendant, relying primarily on the fact that there was no eyewitness testimony of a drug transfer, contends that the evidence was insufficient to show that he distributed crack cocaine within 1,000 feet of a school zone.

In determining whether the judge properly denied the defendant's motion for a required finding of not guilty, we focus on whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Commonwealth v. Latimore, 378 Mass. at 677, 393 N.E.2d 370, quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Under the standard set out in Latimore, circumstantial evidence is a permissible basis upon which to premise a conviction." Commonwealth v. Tanner, 66 Mass.App.Ct. 432, 434, 848 N.E.2d 430 (2006). See Commonwealth v. Rivera, 31 Mass.App.Ct. 554, 556, 581 N.E.2d 498 (1991).

Here, the alleged transaction occurred in an area of medium to high drug activity. See Commonwealth v. Pena, 40 Mass.App.Ct. 905, 905, 661 N.E.2d 119 (1996). Scardoni repeatedly walked out to Tremont Street and looked around. Once she saw the defendant arrive in his car, she walked directly to him. While in the car, Scardoni leaned toward him and spoke with him briefly. The encounter lasted less than one minute. Immediately after Scardoni left the car, she was found with crack cocaine. The defendant had a crumpled twenty dollar bill in one pocket and a large amount of cash in another pocket. See Commonwealth v. Brzezinski, 405 Mass. 401, 410, 540 N.E.2d 1325 (1989). In addition, he had three cell phones. See Commonwealth v. Suarez, 59 Mass.App.Ct. 111, 118, 794 N.E.2d 647 (2003) (multiple cell phones evidence of drug distribution). Although no witness observed a hand-to-hand drug transfer, the circumstantial evidence, combined with the expert testimony was enough for a reasonable jury to conclude that the defendant sold cocaine. See Commonwealth v. Soto, 45 Mass.App.Ct. 109, 111-112, 695 N.E.2d 683 (1998); Commonwealth v. Tanner, 66 Mass.App.Ct. at 434-435, 848 N.E.2d 430. "The Commonwealth in proving its case need not exclude every hypothesis. The inference that the defendant sold the drugs `need not be necessary or inescapable so long as it is reasonable and possible.'" Commonwealth v. Soto, supra at 112, 695 N.E.2d 683, quoting from Commonwealth v. Cohen, 412 Mass. 375, 380, 589 N.E.2d 289 (1992).

Similarly, the testimony of Officers Champagnie and Donga was sufficient for a rational juror to find that the defendant sold drugs near a school zone. The school zone statute applies to anyone who distributes cocaine within 1000 feet of "a public or private ... elementary, vocational, or secondary school...." G.L. c. 94C, § 32J, as amended by St.1998, c. 194, § 146. "To discharge the Commonwealth's burden [of showing that the school met the statutory requirements], an arresting officer may testify upon personal knowledge that the subject school is an elementary school." Commonwealth v Williams, 54 Mass.App.Ct. 236, 245 n. 11, 764 N.E.2d 889 (2002). Officer Champagnie testified that he passed by the school many times and saw young children playing, participating in after school programs, and being transported. See Commonwealth v. Laro, 68 Mass.App.Ct. 556, 557-559, 863 N.E.2d 572 (2007). He also testified that the school was named Hurley Elementary School and that young children attended the school. Officer Donga testified that his former brother-in-law worked at the school as a custodian. See Commonwealth v. Williams, supra. "While there was no direct evidence that it was an elementary school, there was circumstantial evidence from which the jury could rationally reach that conclusion." Commonwealth v. Laro, supra at 559, 863 N.E.2d 572.

Based on the evidence presented by the Commonwealth, the judge properly denied the defendant's motion for a required finding of not guilty.

Sleeping juror. In the middle of the Commonwealth's direct examination of its second witness, and about halfway through all of the testimony, the trial judge stated during a sidebar conference called for other reasons that "[j]uror number one keeps falling asleep."³ She called a five-minute recess, which apparently wakened the juror, and the trial proceeded to a conclusion without further apparent incident.

In Commonwealth v. Braun, 74 Mass. App.Ct. 904, 905, 905 N.E.2d 124 (2009), released after the case at hand was tried, we said that a "judge abused his discretion by failing to conduct a voir dire where there was a very real basis for concluding that the juror was sleeping during testimony and the judge's instructions, thereby calling into question that juror's ability to fulfil her oath.... The juror's inattentiveness was not a momentary lapse, but an inattention that spanned all or portions of the testimony of two witnesses and the judge's instructions to the departing jury. That the judge was not certain whether the juror was sleeping and was unwilling to make such a finding should not have ended the inquiry. Uncertainty that a juror is asleep is not the equivalent of a finding that the juror is awake, or has a `sour face'" (emphasis in original).

In making that statement, we were being faithful to our own well-established law, se...