Com. v. Meehan

• Citation: 33 Mass.App.Ct. 262,597 N.E.2d 1384
• Decision Date: 04 September 1992
• Docket Number: No. 91-P-1256,91-P-1256
• Parties: COMMONWEALTH v. Joseph A. MEEHAN.
• Court: Appeals Court of Massachusetts

Page 1384

597 N.E.2d 1384

33 Mass.App.Ct. 262

COMMONWEALTH v. Joseph A. MEEHAN.

No. 91-P-1256.

Appeals Court of Massachusetts,

Plymouth.

Argued May 12, 1992.

Decided Sept. 4, 1992.

Brownlow M. Speer, Committee for Public Counsel Services, for defendant.

Paul C. Dawley, Asst. Dist. Atty., for the Com.

Before BROWN, PORADA and LAURENCE, JJ.

BROWN, Justice.

Following a jury trial, the defendant was convicted of trafficking in cocaine of a net weight of more than twenty-eight but less than 100 grams. See G.L. c. 94C, § 32E(b ). On appeal the defendant argues that the trial judge erred in denying his motion for a required finding of not guilty. See Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). We agree and accordingly reverse the judgment of conviction.

In reviewing the defendant's claim of error we apply the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). In keeping with our task, we describe the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Casale, 381 Mass. 167, 168, 408 N.E.2d 841 (1980).

On the night of July 29, 1988, members of the Plymouth police department executed a search warrant at Driscoll's Cafe in Plymouth. The defendant and the bartender, Priscilla Turk, were both targets of the search warrant. For a period of eighteen months prior to the execution of the warrant, police had conducted weekly surveillance of Driscoll's and, during that time, had observed the defendant there every Friday and Saturday night. On several occasions, the officers followed the defendant as he left Driscoll's, and the defendant would either go home to his apartment in Plymouth or to another bar, Maggie's Pub, down the street from Driscoll's.

State Trooper Richard Noone, an undercover narcotics investigator, was assigned to sit at the bar in Driscoll's between 8:00 and 11:00 P.M. on July 29, 1988, for the purpose of observing any narcotic transactions that might involve the two suspects. Prior to entering the bar, Noone had been given a description of Turk and had been shown a picture of the defendant. Noone testified that he first observed the defendant in Driscoll's that evening at approximately 9:30 or 10:00. The defendant was standing at the most heavily traveled area of the bar, the section where those seeking service from the bartender would stand. Between 10:00 and 11:00 P.M., Noone saw the defendant and Turk converse privately three times at the end of the bar where the defendant was standing. Both Turk and the defendant talked with their backs to the other patrons. Each conversation lasted about two or three minutes. Noone could not overhear these conversations.

At 11:05 P.M., several police officers entered Driscoll's to execute the warrant. Captain Robert Palmeroy approached Turk and ordered her to come around to the front of the bar. Palmeroy conducted a search of Turk's purse and found a plastic container with forty-four square paper folds of cocaine (later determined to weigh 39.32 grams), two plastic containers of rice ¹, two sheets of paper containing names and numerical notations ², and $1,200 in cash.

Detective Curtis testified that his assignment on July 29, 1988, was to go into Driscoll's and "secure" the defendant. When Curtis approached the defendant, he asked him to place his hands on the bar. Curtis noticed that the defendant put his right hand into a puddle of beer on the bar. When he lifted his hand, the defendant left a crumpled slip of paper on the bar. The paper contained names and numbers, but was unlined and in different handwriting from that on the list taken from Turk's purse. Among the entries on the defendant's list were notations which said "Black guy, Maggie, 50" and "Black guy, Driscoll's, 20." Also found on the defendant during the search at the bar was $317 in cash.

The defendant was arrested and taken to the Plymouth police station. When told he would be strip-searched, the defendant pulled a large amount of cash ($4,630) from his crotch area.

The theory of the Commonwealth's case was that the defendant was involved in a joint enterprise with Turk to traffic in cocaine. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty. ³ To prove a joint venture, the Commonwealth was required to prove beyond a reasonable doubt that the defendant was "(1) present at the scene of the crime, (2) with knowledge that [Priscilla Turk] intend[ed] to commit the crime or with intent to commit a crime, and (3) by agreement [was] willing and available to help [Turk] if necessary." Commonwealth v. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988), quoting from Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041 (1983).

The element of agreement or intent is an essential element to be proven in a joint venture case. Commonwealth v. Longo, 402 Mass. at 486-487 n. 5, 524 N.E.2d 67. Although intent may be shown by circumstantial evidence (Commonwealth v. Costa, 407 Mass. 216, 225, 552 N.E.2d 106 [1990] ), it is not enough to show merely the defendant's presence at the scene of the crime (Commonwealth v. Handy, 30 Mass.App.Ct. 776, 780, 573 N.E.2d 1006 [1991] ), nor is it sufficient to show "the defendant's association with a person who controlled the contraband." Commonwealth v. Booker, 31 Mass.App.Ct. 435, 437, 578 N.E.2d 815 (1991), and cases cited.

The evidence in this case certainly "could have created suspicion about the defendant's activities." Commonwealth v. Caterino, 31 Mass.App.Ct. 685, 689, 583 N.E.2d 259 (1991). From the large amount of cash carried by the defendant in a concealed location one could infer that the defendant was engaged in activities "associated with drug dealing." Ibid. See also Commonwealth v. Brzezinski, 405 Mass. 401, 410, 540 N.E.2d 1325 (1989). The defendant's possession of a list of names and dollar amounts of a type commonly associated with drug transactions (see note 2, supra ) could contribute to an inference of an intent to distribute narcotics. See Commonwealth v. DeCastro, 24 Mass.App.Ct. 937, 939, 509 N.E.2d 25 (1987). In addition, the defendant's attempt to conceal the list of names and numbers when asked to place his hands on the bar is evidence of consciousness of guilt. See Commonwealth v. Salemme, 395 Mass. at 601, 481 N.E.2d 471; Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 427, 475 N.E.2d 81 (1985).

Even if we assume that all of this evidence, taken in its totality, establishes that the defendant was involved in illegal drug dealing, the Commonwealth, nonetheless, has not shown the required nexus between the defendant's activities and the 39.32 grams of cocaine found on Priscilla Turk. The only evidence offered by the Commonwealth which linked the defendant and Turk was the testimony of Trooper Noone that he observed three private conversations between the defendant and Turk during the course of a one-hour period. Noone could not overhear these conversations, and none of the other evidence found on either Turk or the defendant provided the necessary link. See Commonwealth v. Handy, 30 Mass.App.Ct. at 782, 573 N.E.2d 1006 (insufficient evidence linking defendant with cocaine seized or with apartment where drugs were found). Contrast Commonwealth v. Pratt, 407 Mass. 647, 652, 555 N.E.2d 559 (1...