Commonwealth v. Rodriguez

• Decision Date: 27 April 2010
• Docket Number: SJC-10554
• Citation: 456 Mass. 578,925 N.E.2d 21
• Parties: COMMONWEALTHv.Valentine J. RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

456 Mass. 578

925 N.E.2d 21

COMMONWEALTHv.Valentine J. RODRIGUEZ.

SJC-10554

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 7, 2009.

Decided April 27, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph M. Ditkoff, Assistant District Attorney (Gregory D. Henning, Assistant District Attorney, with him) for the Commonwealth.

Andrea Petersen for the defendant.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

The defendant was convicted in the Boston Municipal Court Department of distribution of cocaine, in violation of G.L. c. 94C, § 32A ( a ); possession of cocaine, in violation of G.L. c. 94C, § 34; and distribution of cocaine within one hundred feet of a public park, in violation of G.L. c. 94C, § 32J. The Appeals Court reversed the judgments of conviction, set aside the verdicts, and remanded the case after concluding that the motion judge erred in denying the defendant's motion to suppress. Commonwealth v. Rodriguez, 74 Mass.App.Ct. 314, 906 N.E.2d 351 (2009). We granted the Commonwealth's application for further appellate review. We conclude that the evidence was insufficient as a matter of law to warrant a guilty finding on the two distribution counts and direct that a judgment of acquittal enter on those counts. We reverse the judgment of conviction of possession of cocaine, although on grounds different from those relied on by the Appeals Court, and remand the case for a new suppression hearing and trial.

1. Evidence at trial. Because the defendant challenges the sufficiency of the evidence, we summarize in detail the evidence, considering it in the light most favorable to the Commonwealth and reserving certain details for our analysis of the other issues raised on appeal. See Commonwealth v. Farley, 443 Mass. 740, 741, 824 N.E.2d 797, cert. denied, 546 U.S. 1035, 126 S.Ct. 733, 163 L.Ed.2d 577 (2005).

At approximately 1:40 p.m. on September 23, 2006, Detective Robert Pieroway, a plainclothes Boston police officer assigned to a drug control unit, was traveling in the passenger seat of an unmarked police vehicle when he observed the defendant standing with a group of men in Franklin Square Park in the South End section of Boston. Detective Pieroway noticed a woman, later identified as Jessica Rivera, enter the park, stand beside the defendant, and then walk with the defendant to 10 East Brookline Street, in the courtyard of the Cathedral housing development. Outside 10 East Brookline Street, the defendant and Rivera met a man, Alex Cherizard,¹ on a bicycle, and the three individuals walked up the stairs to the front door of the building, where a fourth person opened the door from inside. As Alex Cherizard was walking up the stairs, he placed his right hand inside the rear of his pants, down to the groin area. The three individuals remained inside the building for approximately thirty seconds, out of view of Detective Pieroway.

The defendant and Rivera then left the building and returned to the park. When they entered the park, Detective Pieroway, from within the unmarked police vehicle approximately thirty to forty feet away, observed the defendant reach into his left pocket, hold out his left hand with the palm up, put his right hand into his palm, and hand something to Rivera.² The detective continued to watch Rivera, as she walked away from the defendant, left the park, and sat next to a man on a bench at a bus stop. Detective Pieroway left the vehicle and approached Rivera on foot. When she saw him, she threw an object to the ground, which the detective retrieved. The object was a one dollar bill containing what he described as a hard, off-white substance inside. After retrieving this object, he spoke by radio to fellow officers of the drug control unit who were in the immediate area, saying, “It's a Saturday. Arrest that guy” (referring to the defendant). He explained to the jury that “[a] Saturday is a term used in the drug control unit when we recover drugs off the buyer.” He then conducted a field interrogation observation of Rivera³ and told her she would be summonsed to Boston Municipal Court for possession of class B cocaine.

Officer Patrick L. Champagnie, another plainclothes officer assigned to the drug control unit, was in a different unmarked vehicle with Officer Kenneth Reed when he saw the defendant alone in the park. After receiving a communication from another member of the drug control unit, Officers Champagnie and Reed left their vehicle and approached the defendant, who was between one hundred and 150 feet away. When they were nearly beside him and identified themselves, the defendant dropped an object that was in his hand. Officer Champagnie picked up the object, which he described as a “tanish, yellowish colored substance with a hard texture to it.” ⁴

Two certificate of drug analysis from assistant analysts at the State Laboratory Institute were admitted in evidence, one certifying that the substance in the one dollar bill weighed 0.15 grams and contained cocaine, and the other certifying that the “loose substance” weighed 0.09 grams and contained cocaine.⁵

2. Sufficiency of the evidence. The trial judge denied the defendant's motion for required findings of not guilty. ⁶ We review the denial to determine whether the evidence offered by the Commonwealth was sufficient to permit the jury to infer that the Commonwealth has met its burden of proving the essential elements of the crimes charged beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). “Our analysis asks not whether the evidence requires a finding of guilty, but whether it permits such a finding beyond a reasonable doubt.” Commonwealth v. Nolin, 448 Mass. 207, 215, 859 N.E.2d 843 (2007). “A conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt.” Commonwealth v. Platt, 440 Mass. 396, 401, 798 N.E.2d 1005 (2003). The evidence must “allow[ ] us to do more than ‘find that there was some record evidence, however slight, to support each essential element of the offense.’ ” Corson v. Commonwealth, 428 Mass. 193, 197, 699 N.E.2d 814 (1998), quoting Commonwealth v. Mandile, 403 Mass. 93, 94, 525 N.E.2d 1322 (1988). Nor will the evidence be sufficient if it relies on conjecture or speculation, or if it tends “equally to support either of two inconsistent propositions.” Corson v. Commonwealth, supra, quoting Commonwealth v. Rhoades, 379 Mass. 810, 817, 401 N.E.2d 342 (1980). If a rational jury “necessarily would have had to employ conjecture” in choosing among the possible inferences from the evidence presented, the evidence is insufficient to sustain the Commonwealth's burden of proving guilt beyond a reasonable doubt. Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468 (1962).

We conclude that, viewing the evidence in the light most favorable to the Commonwealth, a rational jury could have found that there was probable cause to believe the defendant distributed the cocaine that Rivera threw to the ground, but could not have found the defendant guilty of distribution beyond a reasonable doubt. The jury reasonably could have inferred that the defendant and Rivera went to 10 East Brookline Street for the purpose of purchasing cocaine, in light of their rendezvous with Cherizard, Cherizard's reaching into his groin area as they walked up the stairs to the front door, the brevity of their stay, and their possession of cocaine minutes later. ⁷ However, they could not reasonably infer beyond a reasonable doubt that all the cocaine purchased was given to the defendant and that he then distributed some of it to Rivera. Because no witness observed what went on inside the building, such an inference rests solely on Detective Pieroway's observation that, after they left the building and returned to the park, the defendant gave something to Rivera that he took from his left pocket and placed in the palm of his left hand. Detective Pieroway, however, could not see what, if anything, the defendant gave to Rivera.

The Commonwealth argues that it is reasonable to infer that he was splitting a rock of “crack” cocaine with his right hand, but as noted, see note 2 supra, there is no evidence in the record that the defendant broke or snapped off anything with his right hand. The detective testified only that the defendant put his right hand in his left palm and handed something to Rivera. The inference that he handed cocaine to Rivera may be plausible, but cannot bear the weight of proof beyond reasonable doubt. It is as plausible, certainly plausible enough to yield a reasonable doubt, that Rivera obtained the cocaine inside the building from Cherizard and received something other than cocaine from the defendant. See Commonwealth v. Senati, 3 Mass.App.Ct. 304, 306, 327 N.E.2d 906 (1975) (acquittal of cocaine distribution charge required where “it was at least equally inferable” that alleged buyer of cocaine “had possession of the cocaine throughout the transaction [if there was one]”). See also Commonwealth v. Reid, 29 Mass.App.Ct. 537, 562 N.E.2d 1362 (1990).

The inference the Commonwealth seeks to draw from the detective's limited observations grows even weaker when one considers that the cocaine that Rivera threw to the ground when Detective Pieroway approached her was wrapped in a one dollar bill. Detective Pieroway's observations of the defendant's hands during the supposed distribution of cocaine is not consistent with his wrapping cocaine tightly within a one dollar bill. Because Detective Pieroway continued to observe Rivera until she threw the dollar bill containing cocaine, it would require pure conjecture to conclude that she wrapped the cocaine in a one dollar bill while the detective had her under close surveillance. The presence of the cocaine within the dollar bill is at least as consistent with Rivera's having received this cocaine...