Opinion
No. 10–P–2139.
2012-05-30
COMMONWEALTH v. Kenneth FAULK.
By the Court (KATZMANN, RUBIN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Sixth Amendment issue in this case is materially controlled by Commonwealth v. King, 461 Mass. 354 (2012). Consequently, the judgments must be reversed.
Taking the evidence in the light most favorable to the Commonwealth, as we must, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), there was sufficient evidence to support the school zone conviction, G.L.c. 94C, §§ 32A & 32J, in the testimony that the Lincoln School was a public school attended by middle and high school aged children. Moreover, where the police officer who purchased cocaine from the defendant identified him, the evidence of his identification as the culprit was sufficient under the familiar standard. Cf. Commonwealth v. Addy, 79 Mass.App.Ct. 835, 841 n. 8 (2011).
As to the motion to suppress, the evidence was that the defendant was on a bicycle on Highland Street traveling in the direction he would have been if coming from the drug sale, that he was in precisely the location the perpetrator would likely have been at the time he was stopped, that he was spotted by Trooper Telford within moments of the perpetrator having left Trooper Boyle's location, and that he was seen by Trooper Telford to match the description broadcast by Trooper Boyle, a young, black man on a bicycle wearing baggy jeans and a distinctively extra long white T-shirt. This suffices to raise a reasonable articulable suspicion that the defendant was the perpetrator, and thus to justify the brief investigative stop necessary for the police to confirm their suspicion. See Terry v. Ohio, 392 U.S. 1 (1968). The conclusion that the stop was permissible also disposes of the defendant's argument that there was insufficient evidence of the defendant's identity to support the convictions.
Since there could be retrial in this case, see Kater v. Commonwealth, 421 Mass. 17, 18 (1995), we address the remaining issue that is likely to recur there.
The defendant's assertion that he was not wearing a white T-shirt when arrested was impeached at trial with a photograph taken at the Plymouth County House of Correction showing him in a white T-shirt. (The judge properly sought to limit the possibility that the jury would become aware that the photograph was taken at the house of correction, and properly ruled that it was not evidence in the case.) The premise of the use of the photo for impeachment was that it was taken upon the defendant's arrest, and that it was a photo of what he was wearing when arrested (i.e., that the house of correction did not distribute it to the defendant as part of the prison uniform he was wearing in the photo).
There was no evidence with respect to when the photograph was taken or, assuming it was taken upon the defendant's arrest, to whether the T-shirt the defendant was wearing was distributed by the house of correction or was worn by the defendant upon his arrival at the detention facility. Indeed, the prosecutor was not asked if he was prepared to call a witness with respect to these points should they have been disputed by the defendant. See Commonwealth v. Delrio, 22 Mass.App.Ct. 712, 721 (1986). In light of these deficiencies with respect to the circumstances in which the photograph was taken, there was no reasonable basis for the use of the photograph for impeachment. See Commonwealth v. Johnson, 441 Mass. 1, 5 (2004).
Judgments reversed.
Verdicts set aside.