Opinion
10-P-2093
03-29-2012
COMMONWEALTH v. PAUL C. HITCHCOCK, III.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Paul C. Hitchcock, III, appeals his conviction of distribution of cocaine in violation of G. L. c. 94C, § 32A(c). At the conclusion of a jury-waived trial a Superior Court judge sentenced the defendant to a term of five to seven years in State prison. On appeal, the defendant contends (1) that the motion judge wrongly denied his pretrial motion to suppress evidence collected from a warrantless stop and arrest; and (2) that the trial judge wrongly denied his motion for a required finding of not guilty. We affirm.
Background. The evidence at the suppression hearing and then at trial permitted the following findings. In the months leading up to the defendant's arrest on May 10, 2007, the Blackstone Valley Regional Task Force (task force) orchestrated four undercover buys of cocaine.
The first buy occurred on February 17, 2007. In search of marijuana, police officers Travis Gould and Liam O'Rourk entered Barry's Place in Mendon. Their inquiries led them next to the China Pacific Restaurant, where Joel Williams, a patron of the restaurant, invited the officers to join him in purchasing cocaine from the defendant. After the officers had agreed to purchase $50 worth of cocaine, O'Rourk witnessed Williams and the defendant enter the defendant's black station wagon and conduct a 'quick hand-to-hand, like, transaction-type motion.' On the car ride back to Barry's Place, Williams confirmed that he had purchased cocaine from the defendant.
Gould was a police officer in Douglas. O'Rourk was a police officer in Grafton.
The vehicle was registered to the defendant's father. For purposes of this opinion, we refer to the black station wagon as the 'defendant's vehicle.'
The trial judge acquitted the defendant of distribution of cocaine to Williams on February 17, 2007.
The second and third undercover buys occurred on March 30 and April 5, 2007, at Barry's Place. The defendant did not take part in these transactions. The undercover buys are important, however, because the officers established a relationship with William Fernald, a patron of Barry's Place, who proved himself capable of procuring cocaine for them. Fernald was not an informant, or otherwise employed by the police. On both occasions, Fernald successfully facilitated the officers' purchase of cocaine from Akeem Wynn, another patron of the restaurant.
The fourth and final undercover buy occurred on May 10, 2007, at Barry's Place. Between 8:30 and 8:45 P. M., in the parking lot outside the restaurant, O'Rourk and Gould had given Fernald $750 to broker the purchase of one-half ounce of cocaine. Unbeknownst to Fernald, the police had marked each bill of the $750 with an identifying mark in the 'o' of the word dollar. Although the officers did not know the identity of the supplier, they had knowledge that the supplier would be someone other than Wynn because Fernald had informed the officers that he could obtain better cocaine than Wynn possessed. In expectation of the delivery of cocaine from the supplier to Fernald, the task force had set up surveillance of the Barry's Place parking lot: Lieutenant Gregory Gilmore and Detective Jody Dwight of the Uxbridge police department sat in one unmarked police car and Mendon police Detective Pamela Mason sat in a second unmarked police car, both stationed diagonally across the street from the restaurant.
After Fernald received a telephone call informing him that the supplier of cocaine would arrive shortly, Gould notified Gilmore of the expected delivery. Shortly thereafter, Fernald received another telephone call informing him that the supplier of cocaine had arrived. Gould relayed this information to Gilmore who had witnessed the defendant's vehicle enter the Barry's Place parking lot. At this point, Gould and Gilmore both observed Fernald walk across the parking lot and enter the vehicle for a short period of time. No one else had approached the vehicle. Fernald returned to the restaurant and delivered a substance to O'Rourk in the men's room. At approximately the same time, the defendant drove out of the parking lot. Officers Gilmore and Dwight followed the vehicle. After a short distance, they pulled it over.
As Gilmore approached the stopped vehicle, he observed the defendant seated in the driver's seat and 'quickly erasing' information from his cellular telephone. The defendant had $1,435 of cash on his person, but none of the $750 of marked money. Moments later, however, Gilmore observed that Heather Tetreault, a companion seated in the front passenger seat, had a large amount of cash in her hands. Although Tetreault told Gilmore that she had just cashed a check, he discovered that the cash consisted of $700 of the marked money which Gould and O'Rourk had given Fernald. Gilmore subsequently observed $50 of loose bills lying on the driver's seat 'like [the defendant] had tried to secret[e] [them] under his person.' Gilmore confirmed that the $50 represented the remainder of the $750 of marked money.
A grand jury indicted the defendant for distribution of cocaine in violation of G. L. c. 94C, § 32A(c) and (d), subsequent offense. After conviction of the distribution charge, the defendant pleaded guilty to the subsequent offense portion of the indictment.
Analysis. Alleging that the police lacked probable cause to conduct the stop and arrest, the defendant moved to suppress all resulting evidence. A judge denied the motion. 'In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law.' Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).
We agree with the motion judge that the police had probable cause to stop and arrest the defendant. '[P]robable cause exists where . . . the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual . . . has committed or was committing an offense.' Commonwealth v. Storey, 378 Mass. 312, 321 (1979). Although the defendant emphasizes that no police officer directly witnessed an exchange of cocaine, the police may possess probable cause to arrest without observing such an exchange. See Commonwealth v. Kennedy, 426 Mass. 703, 710 (1998). See also Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011) (rejecting 'per se rule that an officer must actually see an object exchanged to have probable cause to arrest').
The Supreme Judicial Court has explained that failure to observe the exchange merely 'weakens the Commonwealth's probable cause showing.' Levy, 459 Mass. at 1011, quoting from Kennedy, 426 Mass. at 711.
On the night of May 10, the police had knowledge that Fernald, a person with whom the police had successfully engaged to procure cocaine on two prior occasions, had arranged on behalf of undercover officers to purchase one-half ounce of cocaine at Barry's Place. After officers had given Fernald $750 of marked money to purchase the cocaine, and set up surveillance of the Barry's Place parking lot, two officers watched Fernald enter the defendant's vehicle for a short period of time. Fernald then entered the men's room inside Barry's Place to deliver a substance to an officer. Upon these cumulative facts and the collective knowledge of the police, the motion judge correctly concluded that the police had probable cause to stop and arrest the defendant. Commonwealth v. Washington, 449 Mass. 476, 484-485 (2007) ('[T]he police had probable cause to arrest the defendants, having good reason to suspect that they had just participated in an undercover drug purchase').
For the reasons stated above, the police possessed abundant evidence supporting probable cause to stop and arrest the defendant based on the events of May 10 alone. Therefore, we express no opinion with respect to the defendant's argument that the motion judge improperly found probable cause to exist based on information from the February 17 undercover buy. Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) ('An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings'). Moreover, the motion judge's recitation of the four undercover buys in the denial of the motion to suppress does not demonstrate that he based his finding of probable cause on the events which occurred during the undercover buy on February 17.
Sufficiency of evidence at trial. On appeal from the trial judge's denial of his motion for a required finding of not guilty, the defendant contends that the Commonwealth produced evidence insufficient to satisfy a rational trier of fact that the defendant distributed cocaine. In reviewing the denial of a motion for a required finding of not guilty, we ask 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
To achieve the defendant's conviction of distributing cocaine in violation of G. L. c. 94C, § 32A(c), the Commonwealth had to prove three essential elements beyond a reasonable doubt: (1) the substance in question was cocaine; (2) the defendant distributed some perceptible amount of that cocaine to another person or persons ; and (3) the defendant did so knowingly or intentionally. See Commonwealth v. Terrelonge, 42 Mass. App. Ct. 941, 942 (1997). See also Commonwealth v. Fluellen, 456 Mass. 517, 524 (2010) ('To convict the defendant of distribution of cocaine, G. L. c. 94C, § 32A(c), the Commonwealth [is] required to prove that the defendant knowingly or intentionally distributed a Class B substance, as defined in G. L. c. 94C, § 31').
'Distribute' is defined as 'to deliver other than by administering or dispensing a controlled substance.' G. L. c. 94C, § 1, inserted by St. 1971, c. 1071, § 1. 'Deliver' is further defined as 'to transfer, whether by actual or constructive transfer, a controlled substance from one person to another, whether or not there is an agency relationship.' Ibid.
The defendant has not disputed that the substance allegedly distributed was cocaine. The Commonwealth supported the certification of the substance with the testimony of the chemist.
Under the Latimore standard of review, we are satisfied that the trial judge correctly concluded that the Commonwealth had proved beyond a reasonable doubt that the defendant knowingly or intentionally distributed some perceptible amount of cocaine. Although the police did not witness the defendant distribute cocaine, the trial judge received abundant circumstantial evidence that the defendant had knowingly or intentionally distributed cocaine. First, the police found $750 of marked money inside the defendant's vehicle after witnessing Fernald enter the vehicle for the express purpose of procuring cocaine. Second, the defendant's act of quickly erasing information from his cellular telephone and Tetreault's false statements regarding the marked money permitted the trial judge to draw an inference of consciousness of guilt. See Commonwealth v. Stuckich, 450 Mass. 449, 452 (2008). Third, the $1,435 of cash on the defendant's person at the time of his arrest permitted an inference that the defendant had engaged in drug distribution. See Pena v. Commonwealth, 426 Mass. 1015, 1018 (1998). Fourth, the judge could have considered the defendant's use of his vehicle during the February 17 undercover buy as relevant evidence of modus operandi and his intent to distribute cocaine. See Commonwealth v. Gollman, 436 Mass. 111, 114-115 (2002). In the light most favorable to the Commonwealth, the evidence permitted a rational trier of fact to find beyond a reasonable doubt that the defendant had knowingly or intentionally distributed some perceptible amount of cocaine to another person or persons.
The trial judge specifically stated that she did not credit Tetreault's statements regarding the source of the marked money.
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Judgment affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),