Opinion
16-P-763
03-24-2017
COMMONWEALTH v. Marlon ALEXANDER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant, Marlon Alexander, was convicted of distribution of cocaine, in violation of G. L. c. 94C, § 32A. On appeal, he challenges the sufficiency of the evidence and certain evidentiary rulings. For the reasons that follow, we affirm.
The defendant was found not guilty of distributing a controlled substance in or near a public park, in violation of G. L. c. 94C, 32J.
1. Sufficiency of the evidence . We recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). On the evening of May 24, 2014, members of the Boston police department drug control unit were conducting surveillance in the Roxbury section of Boston, near the Lenox Street Housing Development and Ramsey Park. At all relevant times, Sergeant Detective Donald Keenan was in radio contact with two other members of the drug control unit, Officers James Stoddard and Matthew Ryan. At approximately 7:00 p.m., the officers saw Bernard Simmons, with whom they had had previous interactions, and a woman, later identified as Jewel Crutchfield, talking in the park. After a brief conversation, Crutchfield walked deeper into the park and used her cellular telephone to make a telephone call. Approximately ten minutes later, Crutchfield walked over to Simmons and pointed across the street toward a green Nissan Altima. Simmons removed money from his pocket and handed it to Crutchfield. Thereafter, Crutchfield crossed the street and got into the Altima. The driver of the Altima, later identified as the defendant, was the only person in the car. Crutchfield was in the car for less than a minute and, when she exited, she was carrying a folded piece of blue paper. She walked back toward Simmons, who opened the paper and nodded before refolding the paper, putting it in his pocket, and giving Crutchfield more money. The two then separated; Simmons walked down Washington Street, while Crutchfield returned to the park.
The folded, blue piece of paper was marked as an exhibit and entered in evidence.
--------
Sergeant Detective Keenan told Officers Ryan and Stoddard, over the police radio, to stop the Altima, which had driven away. He then approached Simmons, questioned him about the exchange, and seized a blue piece of paper from Simmons's front pocket; it contained three plastic bags of a white, rock-like substance believed to be crack cocaine. Sergeant Detective Keenan relayed this information to Officers Stoddard and Ryan, who by now had stopped the Altima a short distance away. The defendant, who denied that a woman had been in his car, was placed under arrest.
Meanwhile, Sergeant Detective Keenan and two other officers approached Crutchfield. Sergeant Detective Keenan identified himself and asked her to hand over the money she received from Simmons. She gave him a five-dollar bill and then showed him the number she had called from her cellular telephone. When the police dialed the number, one of the cellular telephones seized from the defendant began to ring.
Pointing to the absence of drugs, plastic bags, or blue paper found on his person or in his car and the fact that no one observed him providing drugs or receiving money, the defendant claims that the evidence failed to establish his guilt beyond a reasonable doubt. This argument ignores the relevant inquiry; "whether the evidence would permit a [fact finder] to find guilt, not whether the evidence requires such a finding." Commonwealth v. Guy , 441 Mass. 96, 101 (2004). It also overlooks our cases, which have recognized that an illegal drug transaction may be inferred from the attendant circumstances where, as here, the actual transaction is not observed. See Commonwealth v. Soto , 45 Mass. App. Ct. 109, 112 (1998).
Based on the evidence presented, the judge, as fact finder, was warranted in finding that Simmons approached Crutchfield to purchase drugs, and that Crutchfield acted as a "middleman" between him and the defendant. This inference is supported by the fact that she was in the defendant's Altima for less than a minute and exited the car with a blue piece of paper that she immediately gave to Simmons. This paper, seized from Simmons, contained cocaine. Moreover, the police confirmed that Crutchfield had called the defendant's telephone number, supporting the inference that she summonsed the defendant in order to facilitate a drug transaction with Simmons. Finally, the defendant's statement to Officer Stoddard that no female had been in his car that afternoon could be interpreted as false and as such gives rise to a reasonable inference by the judge of consciousness of guilt. See, e.g., Commonwealth v. Hardy , 431 Mass. 387, 394-395 (2000).
2. Testimony describing Crutchfield as a "drug abuser ." The defendant claims that the judge erred in allowing Sergeant Detective Keenan to testify during redirect examination that Crutchfield appeared to him to be a "drug abuser." In response to the prosecutor's question whether Crutchfield appeared nervous, Keenan said:
"She did appear nervous and she appeared to me like she was a drug abuser.... [S]he was, by my training and experience, I believe she was concerned that if she was going to be placed under arrest that she was—if she hasn't forthcoming—"
Defense counsel objected, and the judge sustained the objection as to any further testimony on this point.
Assuming without deciding that the testimony was improper, a new trial is not warranted because the defendant has not shown a reasonable possibility that the error contributed to the judge's finding of guilt. See Commonwealth v. Carriere , 470 Mass. 1, 7 (2014). We are confident that the judge did not give inappropriate weight to Keenan's allegedly improper testimony, if only because judges sitting as fact finders are presumed to know and follow the law. See Commonwealth v. Watkins , 63 Mass. App. Ct. 69, 75 (2005).
3. Right to confrontation . Sarah Clark, a chemist from the Massachusetts State police crime laboratory, testified as an expert for the Commonwealth regarding the testing and identification of the substance seized from Simmons. Clark was the primary chemist who tested the drugs recovered from Simmons, and she explained, in detail, the tests she conducted, which included comparing the drugs to known "standards" provided by a commercial manufacturer. The defendant argues that he did not have a meaningful opportunity to challenge the reliability of the known standards because he could not cross-examine the manufacturer and that his right to confrontation was violated as a result. This argument is foreclosed by Commonwealth v. Greineder , 464 Mass. 580, 594-595, cert. denied, 134 S. Ct. 166 (2013), in which the Supreme Judicial Court held that "expert opinion testimony, even if based on independently admissible facts or data not in evidence, does not violate a criminal defendant's confrontation rights" because "an expert witness is subject to cross-examination regarding that testimony" and "the expert witness also can be meaningfully cross-examined about the reliability of the underlying data."
Judgment affirmed .