Opinion
14-P-895
10-23-2015
COMMONWEALTH v. LUCIALINO A. GOMES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was found guilty of one count of distributing cocaine. The defendant was acquitted on a second distribution count. On appeal, the defendant argues that the evidence was insufficient and that the trial judge erred in allowing in evidence inadmissible, nonverbal hearsay concerning the cocaine found in one of the buyer's pockets. We affirm.
This case involves street-level drug transactions in an area of New Bedford known for drug activity. On the night of October 28, 2011, Lieutenant Oliveira observed an Altima automobile, driven by the defendant, pull over to the side of the road. Immediately, a woman later identified as Albertina Delgado approached the driver's side window. Oliveira testified that Delgado reached into the car, made a quick hand movement coinciding with the defendant's hands, removed her hand from the car and then quickly walked away, but the lieutenant was not able to see if anything had been exchanged. After Delgado walked away, Lieutenant Oliveira followed the car, radioed a description of Delgado to officers in the area, and ordered them to stop her.
Several moments later Sergeant Simmons saw Delgado, stopped her, and asked, "where the drugs were that she just purchased?". At this point, defense counsel objected. The judge overruled the objection, and Sergeant Simmons then testified as follows:
"Verbally she didn't say anything, she began to reach . . . . She took her left hand she was about to reach in the front pocket of her sweater. I stopped her from doing that."Simmons then searched Delgado's pockets and found two plastic bags of what was suspected to be cocaine.
Oliveira continued to follow the defendant's car. There appeared to be a second exchange where a man approached the defendant, reached into the car, and then moved away. This second event was the predicate of the second distribution charge, yielding a not guilty finding.
The defendant argues that although the two stops were substantially similar, the judge's findings on the two charges were different. However, one finding of not guilty does not negate a different finding of guilt and a conviction, or negate the sufficiency as to the independent conviction. We note that on the second charge (with a not guilty), after the man came near the defendant's car, the police stopped the man, but did not find cocaine in the man's possession. It was only later, in inspecting the area, that the officer found a bag of cocaine near where the man was apprehended.
The defendant eventually parked the car, exited, and began to flee on foot. After a brief chase, the defendant was apprehended. The defendant had $738 on his person and two cell phones. However, no drugs were found on his person or in his car. The judge found the defendant guilty on "the count of a sale to Ms. Delgado. Not guilty on the sale, on the alleged sale to [the man]."
The defendant's claim that it was error to allow testimony by Sergeant Simmons of his observations of what the buyer, Delgado, did after being stopped because the observational testimony constituted nonverbal hearsay is unavailing. See Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 502 (2007) (testimony of officer describing witnesses at the scene pointing to the defendant was not hearsay). Indeed, Simmons testified only about what he observed, not what was said or communicated by Delgado, and premised his response with, "[v]erbally she didn't say anything." Furthermore, as the defendant acknowledges, evidence of Simmons's observations was admissible for the limited purpose of explaining how the officer came to search Delgado.
Finally, the defendant's argument concerning the sufficiency of the evidence fails under Commonwealth v. Latimore, 378 Mass. 671 (1979). Lieutenant Oliveira made detailed observations of both the defendant's street-side vehicle stop, and the subsequent brief exchange as Delgado came to the car and got and gave something. Indeed, following this particular exchange, two packages of what was identified as cocaine were found in Delgado's pocket. Further, Officer Ledo, who was qualified as an expert, testified that the defendant's conduct during the car stop, the action of the brief exchange in the car with the buyer, along with the large amount of cash and multiple cell phones in the defendant's possession, all were consistent with street-level drug dealing. See generally Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 434-435 (2006); Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178-179 (2009) (circumstantial evidence including observations of the defendant's encounter with an individual who came to his car, the defendant's possession of large amounts of cash and multiple cell phones, and drugs found on the individual after the encounter constitutes sufficient evidence to support a drug distribution conviction).
Judgment affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 23, 2015.