Commonwealth v. Tanner

• Decision Date: 05 June 2006
• Docket Number: No. 05-P-145.,05-P-145.
• Citation: 848 N.E.2d 430,66 Mass. App. Ct. 432
• Parties: COMMONWEALTH v. Michael TANNER.
• Court: Appeals Court of Massachusetts

848 N.E.2d 430

66 Mass. App. Ct. 432

COMMONWEALTH v. Michael TANNER.

No. 05-P-145.

Appeals Court of Massachusetts, Suffolk.

Argued January 11, 2006.

Decided June 5, 2006.

COPYRIGHT MATERIAL OMITTED

James G. Lavery, Brockton, for the defendant.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, DREBEN, & CYPHER, JJ.

DUFFLY, J.

From his conviction by a Boston Municipal Court jury of distribution of cocaine, G.L. c. 94C, § 32A, and of the same offense within a school zone, G.L. c. 94C, § 32J, the defendant appeals, arguing that: (1) the Commonwealth's evidence was legally insufficient as to both counts, and (2) the outcome of his trial was materially affected by the improper admission of hearsay evidence. Because we agree with the latter contention, we reverse.

We begin with a discussion of the claimed insufficiency of the evidence, which will provide context for our later discussion in which we conclude that certain evidence should not have been admitted and that its admission was prejudicial because, despite its sufficiency, the evidence supporting conviction was weak.

Based on the evidence, the jury could have found as follows: Police observed the defendant and a man later identified as Moses Sawyer standing face to face, conversing, on the corner of Kneeland and Washington streets in downtown Boston, an area known for illegal drug sales. The defendant stood with his hand out in front of him, palm up, as if he were displaying something to Sawyer. As the men spoke, the defendant kept looking up and down the street. Police then briefly lost sight of them. A few minutes later, officers spotted the defendant inside a nearby fast food restaurant. The defendant was seated by himself and had not purchased any food. He was surreptitiously counting money held under the table top.

At approximately the same time, police located Sawyer. He had walked a short distance from the place where he had been seen with the defendant. Police watched as Sawyer attempted to buy five bags of "crack" cocaine from a man later identified as Ennis Roberts.¹ Sawyer and Roberts were arrested and the five bags of cocaine seized. Sawyer was searched, and six additional bags of cocaine were recovered from his pocket. Police then placed the defendant under arrest. A search of the defendant yielded $130 in cash, but no drugs.

Discussion. 1. Sufficiency of the evidence of distribution. The gravamen of the defendant's argument is that the Commonwealth's case is legally insufficient due to the absence of any direct evidence, in particular any eyewitness testimony, of possession or of a transfer of illegal drugs between the defendant and Sawyer. In these circumstances, the defendant claims, the jury necessarily engaged in improper speculation in order to find that a drug sale had occurred. In the alternative, the defendant argues that even if a reasonable fact finder could have inferred that Sawyer and the defendant were engaged in a drug transfer, the evidence equally supported the view that Sawyer, rather than the defendant, was the seller. In these circumstances, the argument goes, the element of distribution would not be proved and his motion for a required finding of not guilty with respect to that offense was improperly denied.

Consistent with the familiar rule, in assessing whether a motion for a required finding of not guilty was properly denied, the inquiry focuses on whether "any rational trier of fact could have found the essential elements of the crime [charged] beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence against the defendant was largely, if not exclusively, circumstantial. However, that fact, standing alone, does not negate the legal sufficiency of the government's case. Under the standard set out in Latimore, circumstantial evidence is a permissible basis upon which to premise a conviction. See Commonwealth v. Rivera, 31 Mass.App.Ct. 554, 556, 581 N.E.2d 498 (1991) (possession of illegal drugs proved exclusively by circumstantial evidence).

Here, the defendant met briefly with Sawyer in a high crime area, see Commonwealth v. Reid, 29 Mass.App.Ct. 537, 538-539, 562 N.E.2d 1362 (1990), standing close to him in a manner consistent with displaying small items. Throughout the meeting, the defendant kept a careful lookout. Moments later, the defendant was spotted surreptitiously counting money ($130 in cash was removed from his person following his arrest). See Commonwealth v. Brzezinski, 405 Mass. 401, 410, 540 N.E.2d 1325 (1989) (possession of large amounts of cash consistent with drug sales). Further, shortly after his encounter with the defendant, Sawyer was observed engaged in an outwardly similar transaction with another man that indisputably involved Sawyer's purchase of crack cocaine. Based on this evidence the jury, although not required to do so, was entitled to infer that the defendant had sold cocaine to Sawyer notwithstanding the fact that no actual transfer was observed.

On its facts, this case resembles Commonwealth v. Soto, 45 Mass.App.Ct. 109 111-112, 695 N.E.2d 683 (1998). In Soto, police observed the defendant and an alleged buyer meet in an area known to be a locus for illegal drug sales. The defendant reached briefly into the alleged buyer's car. Both parties then attempted to leave, but were immediately stopped by police. When the alleged buyer was placed under arrest, she produced a packet of cocaine from inside her clothing. Despite the fact that no actual transfer was seen, we concluded in Soto that the government's evidence nonetheless provided a legally sufficient basis for concluding that a drug sale had, in fact, occurred. Id. at 112, 695 N.E.2d 683. As we observed in that case, "in certain situations, an illegal drug transaction may be inferred from other circumstances even if what is transferred is not actually seen." Ibid.

There is likewise no merit to the defendant's argument that the government's proof was legally insufficient on the question of the direction of the transfer. The facts more strongly support the inference that the defendant was the seller and Sawyer the buyer: (1) after the sale, Sawyer was the one with the drugs while the defendant had only money; (2) Sawyer was seen buying drugs from another man shortly after his encounter with the defendant, suggesting that he was a buyer rather than a seller; and (3) the act of counting money is, in a cash transaction, arguably more consistent with the role of seller, rather than buyer. As we stated in Soto, rejecting the same argument, "[t]he 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.'" Ibid., quoting from Commonwealth v. Cohen, 412 Mass. 375, 380, 589 N.E.2d 289 (1992). See Commonwealth v. Miller, 17 Mass.App.Ct. 991, 991, 459 N.E.2d 136 (1984). The inference that the defendant was the seller here was "reasonable and possible." The Commonwealth's case, while certainly not overpowering, was legally sufficient.

2. Sufficiency of the evidence of the school zone violation. The defendant next challenges the sufficiency of the Commonwealth's evidence with respect to his conviction under G.L. c. 94C, § 32J, which penalizes the sale of illegal drugs within 1,000 feet of school property, that is, within a school zone. We reject the defendant's claim that the measuring method used by police was too imprecise to provide a legally sufficient basis for inferring that any drug sale had in fact occurred within a school zone.

At trial Detective Lynch, the arresting officer, testified that due to the location of buildings in the area where the drug sale had occurred, a simple point-to-point measurement was impossible. Instead, Lynch, using the Pythagorean theorem,² calculated the distance from the edge of the school property to the point of sale to be 902 feet. To support this result, Lynch introduced photographs of the area showing the location of the various buildings described in his testimony.

In pressing his argument for legal insufficiency, the defendant makes much of the fact that there was no conclusive evidence that the two legs measured by the detective were straight or that their intersection formed an exact ninety degree angle— both prerequisites for obtaining a precise measurement under the technique used here. He also questions whether the point selected by Lynch as the site of the offense was accurate. We do not agree that these alleged deficiencies impair the legal sufficiency of the government's case.

As described above, where a defendant alleges legal insufficiency of the evidence, a reviewing court must ascertain whether the Commonwealth presented adequate evidence on each element of the offense charged. See Commonwealth v. Mandile, 403 Mass. 93, 94, 525 N.E.2d 1322 (1988). However, in conducting this analysis, the weight or credibility of the evidence adduced by the prosecution is largely irrelevant. See Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980) (weight of evidence not ordinarily subject to review on appeal). With few exceptions, the task of assessing the cogency of evidence and resolving conflicting testimony is the exclusive province of the fact finder. See Commonwealth v. Wilborne, 382 Mass. 241, 245, 415 N.E.2d 192 (1981). The defendant's arguments go to the weight, not the legal sufficiency, of the evidence. There is no question that the officer's testimony, including both his physical description of the area and his explanation of the mathematical underpinnings of his calculations, taken together with photographs of the streets in question, satisfies the threshold requirements of Latimore. The jury would have been entitled to reject...