Com. v. Reid

• Decision Date: 27 November 1990
• Docket Number: No. 90-P-353,90-P-353
• Citation: 562 N.E.2d 1362,29 Mass.App.Ct. 537
• Parties: COMMONWEALTH v. Bruce REID.
• Court: Appeals Court of Massachusetts

Page 1362

562 N.E.2d 1362

29 Mass.App.Ct. 537

COMMONWEALTH v. Bruce REID.

No. 90-P-353.

Appeals Court of Massachusetts Worcester.

Argued Oct. 12, 1990.

Decided Nov. 27, 1990.

M. Page Kelley, Committee for Public Counsel Services, for defendant.

Sean J. Gallagher, Asst. Dist. Atty., for Com.

Before KASS, FINE and IRELAND, JJ.

FINE, Justice.

The defendant was convicted of possession of cocaine with intent to distribute. G.L. c. 94C, §§ 31, 32A. The jury heard the Commonwealth's evidence from two Worcester police officers.

At approximately 9:30 P.M. on November 3, 1988, the officers, dressed in civilian clothes and seated in an unmarked cruiser, were observing an area behind a liquor store in Worcester. They saw a sedan pull up: a man in his fifties was in the driver's seat; a woman in her late twenties was in the passenger seat. The woman left the car, walked to the corner where a group of men were standing, conversed with them for about a minute, and returned to the car. About a minute later, the defendant approached the passenger side of the car from somewhere in the area of the liquor store. He leaned inside briefly, apparently conversing, and then walked away. The car drove off and, a short while later, returned to the same location. As it approached the liquor store, the defendant came out of the store and motioned for the car to stop. As the defendant opened the front passenger door, one of the police officers heard him say the words "forty dollars." He entered the front seat, and the car drove off, but again returned to the area behind the liquor store. The police officers approached. After starting to pull away, the car stopped. The defendant was bending forward, "bobbing" and reaching down. On the floor near where he had been sitting, the police found a twenty-dollar bill, a ten-dollar bill, and .32 gram of cocaine wrapped inside another ten-dollar bill. The street value of the cocaine was around forty dollars.

The defendant was arrested. The driver and passenger were allowed to leave. Their names were not recorded, and they never appeared in the criminal proceedings. Normal police procedures would have required at least that their names be recorded.

At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on so much of the complaint as alleged intent to distribute. The motion was denied. The defense rested after calling one of the officers back to the stand briefly to clarify whether the female passenger had been searched.

1. We agree with the defendant's argument on appeal that the motion should have been allowed. The jury were warranted in finding that the three individuals, in an area of high drug activity, were engaged in an exchange of cocaine for money. On the scanty evidence of the defendant's actions, however, it was equally as likely that the defendant was the purchaser as that he was the seller. See Commonwealth v. Senati, 3 Mass.App.Ct. 304, 306, 327 N.E.2d 906 (1975); Commonwealth v. Tripp, 14 Mass.App.Ct. 997, 998, 440 N.E.2d 1286 (1982).

The defendant may well have approached the car to sell the occupants cocaine, as the Commonwealth contends. It is equally plausible, however, that the female passenger had approached the group outside the liquor store to offer to sell cocaine and that the defendant, having learned of the offer, took her up on it. As the officers could not hear the conversation between the defendant, standing outside the car, and its two occupants, the defendant's uttering the words "forty dollars" is indicative only of the fact that they were discussing price, not who was buying and who selling.

In the final analysis, the Commonwealth is left with the argument that "buyers approach sellers much more often then sellers approach buyers." Even assuming that proposition to be valid, it does not assist the Commonwealth in this case where there was no evidence that the defendant was in the group that the female first approached. "In choosing among the possible inferences from the evidence presented, [the] jury necessarily would have had to employ conjecture." Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468 (1962). See Commonwealth v. Salemme, 395 Mass. 594, 599-600, 481 N.E.2d 471 (1985). The motion for a required finding of not guilty of the greater offense should have been allowed.

We raise on our own the question whether the defendant is entitled now to an outright acquittal ¹ or only to have vacated the finding on so much of the charge as alleges possession of cocaine with intent to distribute. At trial no instruction on the lesser-included offense of simple possession was given because, when the judge offered so to instruct the jury, neither the defendant nor the Commonwealth asked him to do so.

While the charge of simple possession of cocaine was not expressly before the jury, the indictment against the defendant comprehended the lesser-included offense, and the verdict clearly imports a finding of all its essential elements. See Commonwealth v. Novicki, 324 Mass. 461, 465, 467, 87 N.E.2d 1 (1949); Commonwealth v. Senati, 3 Mass.App.Ct. at 308, 327 N.E.2d 906; Commonwealth v. Tripp, 14 Mass.App.Ct. at 999, 440 N.E.2d 1286. We can think of no reason based upon precedent, logic, or fairness why an appellate court should order an acquittal rather than a resentencing on the lesser-included offense under such circumstances. See Commonwealth v. Harris, 23 Mass.App.Ct. 687, 688-689, 693, 505 N.E.2d 221 (1987); Commonwealth v. Pimental, 25 Mass.App.Ct. 971, 971-972, 974, ...