Com. v. Robinson, 96-P-1106

• Decision Date: 25 September 1997
• Docket Number: No. 96-P-1106,96-P-1106
• Citation: 682 N.E.2d 903,43 Mass.App.Ct. 257
• Parties: COMMONWEALTH v. Travis ROBINSON.
• Court: Appeals Court of Massachusetts

Page 903

682 N.E.2d 903

43 Mass.App.Ct. 257

COMMONWEALTH v. Travis ROBINSON.

No. 96-P-1106.

Appeals Court of Massachusetts,

Middlesex.

Argued April 18, 1997.

Decided July 30, 1997.

Further Appellate Review Denied

Sept. 25, 1997.

Deirdre Thurber, Plymouth, for defendant.

Carlene A. Pennell, Assistant District Attorney (Gerard Leone, Assistant District Attorney, with her) for the Commonwealth.

Before PERRETTA, GILLERMAN and KASS, JJ.

KASS, Justice.

Travis Robinson was found guilty of possession with intent to distribute cocaine (G.L. c. 94C, § 32A[c ] ) and possession with intent to distribute cocaine within 1,000 feet of a school (G.L. c. 94C, § 32J). He appeals on the grounds that the trial judge made evidentiary errors and that the trial judge erroneously denied his motion for a required finding of not guilty. We affirm his convictions.

The Commonwealth prosecuted the case against Robinson on a joint venture theory. To make its case against the defendant as a joint venturer, the Commonwealth had to prove that he: (1) was present at the scene of the crime; (2) intended to commit the crime or had knowledge that another intended to commit the crime; and (3) by agreement was willing and able to help the other if necessary. Commonwealth v. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988). Commonwealth v. Ortiz, 424 Mass. 853, 856, 679 N.E.2d 1007 (1997). Commonwealth v. Zawatsky, 41 Mass.App.Ct. 392, 399, 670 N.E.2d 969 (1996). The facts, set out in the light most favorable to the Commonwealth, are these. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

Peter Chambers, a drug addict, had driven to the corner of Hayes and Clafton Streets in Framingham, an area known by police officers for frequent drug transactions, and twice bought cocaine from Jose Rosario during the afternoon of August 19, 1994. Chambers returned to the area for a third time that day with his friend Michael Pierce at 8:00 P.M. Chambers told Pierce he wanted to talk to somebody and asked him to pull his truck over to the corner where about a dozen people were gathered. Four, including Rosario and the defendant, approached the truck. Chambers informed Rosario that he did not want to buy cocaine from him again because his stuff was small. Two of the four individuals stepped away from the truck; Rosario and the defendant stayed put. Chambers then asked the defendant what he had, to which the defendant replied, let me see the money. At the defendant's request Chambers stepped out of the truck. Now Rosario backed away from the conversation and stood on the corner, approximately 15 to 20 feet away. Chambers again asked to see what the defendant had, to which the defendant replied with a punch in the nose. Rosario joined the defendant in the fight. Others who had been congregating on the corner also weighed in. Chambers retreated to the truck and drove with Pierce to the police station.

Chambers reported to the police that four people had attacked him and robbed him of $40 tucked in the waistband of his sweatpants. He did not mention to the police that he was attempting to buy cocaine at the time, although the officers who questioned Chambers sensed a drug deal gone awry. Officer George Carey and Lieutenant Steven Carl escorted Chambers, in a marked cruiser, back to the corner of Hayes and Clafton Streets. Chambers identified Rosario, who was still on the corner, as one of the individuals involved in the robbery. The officers approached Rosario and asked him to remove his hands from his pockets. When he did so, Lieutenant Carl noticed a plastic baggie containing a rock of cocaine hanging out of Rosario's pocket ¹ and confiscated it. Rosario managed to flee at that point, and Lieutenant Carl broadcast his description over the police radio to other officers in the area.

Sergeant Kevin Slattery, who had received Lieutenant Carl's transmission, began a foot search of the area. As he ran past a driveway on Highland Street, about fifty yards away from the corner of Hayes and Clafton Streets, Sergeant Slattery spied the defendant, sweating and covered with grass clippings, crouched on his hands and knees behind a parked car. Sergeant Slattery, who had seen the defendant and Rosario together in the area ten times in the preceding month, radioed Lieutenant Carl to bring Chambers by for an identification. From the back of the police cruiser Chambers observed the defendant and told the officers that the defendant had not been involved in the robbery. Sergeant Slattery searched the defendant and found only a dollar bill.

After returning to the police station, Chambers told officers Carl and Carey that the defendant had, indeed, been involved in the robbery but that, initially, he had been afraid to identify him because a man standing close to the cruiser had put his finger to his lip indicating, to Chambers at least, that he should keep quiet. Chambers also admitted to the police officers that the incident was a drug deal gone bad, and picked Rosario and the defendant out of a photo array as men involved in the incident.

1. Evidentiary issues.

a. Expert testimony regarding street-level drug transactions. The defendant's first assignment of error is to the trial judge's admission in evidence, over objection, of Sergeant Slattery's testimony regarding the general mode of operation of two-person, street-level drug transactions. Characteristics of two-person street-level drug transactions are beyond the common store of knowledge of the average juror. Testimony about such operations, therefore, is helpful to the fact finders and is admissible so long as it is "more akin to a description of the modus operandi of street level dealers than a 'profile' of a drug dealer." Commonwealth v. Dennis, 33 Mass.App.Ct. 666, 669, 604 N.E.2d 48 (1992), S.C., 416 Mass. 1001, 616 N.E.2d 808 (1993). See Commonwealth v. Zwickert, 37 Mass.App.Ct. 364, 368, 639 N.E.2d 1102 (1994).

Sergeant Slattery testified that, in his experience, street-level drug dealing is more often than not a two-person operation, with one person acting as a middleman, holding either the drugs or money, and facilitating communications between the buyer and the dealer. In his testimony Slattery did not speak to the specific activities of the parties that night on the corner of Hayes and Clafton Streets, and the jury were free to draw their own conclusion as to whether the prosecution made out a case that the conduct of the defendant and Rosario that night fit the pattern that Slattery had described.

The defense argues that the expert testimony should have been excluded both because it was not relevant and because there was no factual basis for it in evidence. Yet the testimony was relevant for its tendency to prove either that the defendant intended to commit the crime of selling drugs or knew that...