Opinion
No. 15–P–638.
07-15-2016
COMMONWEALTH v. Tony HORNSBY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of distribution of cocaine, possession of cocaine with the intent to distribute, and resisting arrest following a jury-waived trial in Superior Court, contending that the evidence before both the grand jury and the trial judge was insufficient and that his motions to dismiss the indictments and for required findings of not guilty were erroneously denied. We affirm.
The defendant does not appear to challenge his conviction of refusal to submit to a police officer, for which he was fined $100.
In his brief, the defendant had also asserted error in the admission of a statement made by an alleged joint venturer. At oral argument, the defendant abandoned this claim in light of briefing by the Commonwealth alerting him to the trial judge's statement that this evidence “wouldn't bear on my ultimate verdict.”
Discussion. The defendant makes similar arguments in his challenges to the sufficiency of the evidence before the grand jury and the trial judge. Although our analyses will overlap, we review the challenges separately because the evidence in each proceeding was slightly different, each proceeding is subject to a different standard of proof, and, at least with respect to the resisting arrest charge, the defendant challenges different aspects of the Commonwealth's proof.
1. Motion to dismiss. When a defendant challenges the evidentiary basis of an indictment, we ask whether the indictment was supported by probable cause, that is, whether the grand jury heard reasonably trustworthy evidence that, when viewed in the light most favorable to the Commonwealth, would be sufficient to warrant a reasonable or prudent person in believing that the defendant had committed a crime. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) ; Commonwealth v. Levesque, 436 Mass. 443, 444, 447 (2002) ; Commonwealth v. Rodriguez, 75 Mass.App.Ct. 235, 238 (2009). In making this determination, we review the evidence and the permissible inferences therefrom. Commonwealth v. Club Caravan, Inc., 30 Mass.App.Ct. 561, 566–567 (1991).
That the defendant may have subsequently been convicted of these offenses based on proof beyond a reasonable doubt at a fair trial does not obviate our review of the sufficiency of the evidence before the grand jury. See Commonwealth v. Cook, 426 Mass. 174, 179 (1997) (discussing Commonwealth v. McCarthy, 385 Mass. 160 [1982] ).
The grand jury heard the testimony of Springfield police Officer John Wadlegger, who had been conducting surveillance from an undercover car on August 28, 2013. For the reasons discussed below, we are satisfied that this testimony was sufficient to warrant the grand jury's reasonable belief that the defendant had committed the offenses charged.
a. Distribution. The defendant contends that the evidence before the grand jury failed to show that the defendant, who was the driver, had knowledge of the transaction conducted by Dixon, his back-seat passenger.
We have little trouble concluding that the evidence and inferences viewed in the light most favorable to the Commonwealth were sufficient to support probable cause that the defendant “knowingly participated” in the distribution “with the intent required for that crime.” Commonwealth v. Zanetti, 454 Mass. 449, 450, 466–468 (2009).
“[A] grand jury may conclude that there is probable cause by inferring a person's knowledge and intent from all the facts and circumstances presented.” Commonwealth v. Riley, 73 Mass.App.Ct. 721, 731 (2009). Here, the defendant drove Dixon to meet with the undercover buyer and then led the buyer to a different spot. At that location, the defendant pulled over and waited as the buyer walked over to the defendant's car and engaged in a drug transaction with his back-seat passenger. Where Dixon conducted this transaction in plain view of the defendant and with his apparent blessing and, indeed, could not have consummated the deal without the defendant's assistance as a driver, the grand jury could have reasonably inferred that the defendant was knowingly cooperating with Dixon in a retail drug delivery service.
The inference of the defendant's knowing participation was then strengthened by his conduct subsequent to the drug sale. When officers following the defendant's car turned on their lights and sirens, the defendant not only did not stop, but he engaged in a series of dangerous driving maneuvers in an attempt to evade the police. See Commonwealth v. Tracy, 27 Mass.App.Ct. 455, 457–458 (1989) ; Commonwealth v. Roman, 74 Mass.App.Ct. 251, 254 (2009) (reasonable to infer from “manner in which the defendant drove” that he was participant in cocaine venture where he maneuvered vehicle to limit visibility while “drug users were in the process of purchasing narcotics from his passengers”). The defendant's attempt to flee also shows consciousness of guilt arising from his role in the drug delivery service. See Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 427 (1985). See also Commonwealth v. Clarke, 44 Mass.App.Ct. 502, 510 (1998) (defendant's presence combined with “attempt to flee” sufficient to support grand jury's decision to indict in constructive possession/joint venture case).
Taken in the light most favorable to the Commonwealth, the evidence establishes that the defendant actively participated in the distribution by driving the principal and the narcotics to be exchanged to the meet spot, assisting in efforts to evade detection and help ensure the venture's success by driving to the second meet spot, and then leading the effort to evade capture. See Zanetti, 454 Mass. at 470 (“participation” in offense may take form of “aiding or assisting” in acts that constitute crime or “agreeing to stand by at, or near, the scene of the crime ... to provide aid or assistance in committing the crime, or in escaping, if such help becomes necessary”; agreement need not be formal or explicit as “it is enough consciously to act together before or during the crime with the intent of making the crime succeed”).
In fact, probable cause could have rested on considerably less. See Commonwealth v. Fernandez, 57 Mass.App.Ct. 562, 566–567 (2003) (probable cause to arrest passenger in vehicle from which driver sold cocaine to undercover officer through intermediary runner even though passenger was not seen handling drugs or money because “[i]t does not require impermissible exercise of imagination to think that a passenger, sitting in a parked car from which drug sales are solicited ... was involved with the unlawful transaction” and “[t]he police could reasonably think that someone engaged in the high risk business of selling narcotics would not tolerate the presence in the parked vehicle from which inventory was purveyed ... of a person unconnected to the business being conducted”).
Dixon's notarized letter, which was read to the grand jury, does not require a different conclusion. The grand jury were free to disbelieve Dixon's claim that he had not told the defendant the true purpose of their ride together. See Commonwealth v. Walczak, 463 Mass. 808, 820–821 (2012) (Lenk, J., concurring) (portion of concurring opinion's reasoning with which all justices agreed).
b. Possession with intent. The defendant next contends that the grand jury could not have concluded that he knew of the cocaine that Dixon threw from the car during the chase. Again, under the standard applicable to the dismissal motion, we conclude that the evidence before the grand jury was sufficient to establish probable cause to believe that the defendant was also an accomplice aiding and abetting the possession for distribution of the cocaine that Dixon tossed from the car window.
The grand jury heard testimony that Dixon had been seen tossing items from the defendant's car during the chase and that officers later recovered a bag containing six and one-half grams of suspected crack cocaine and a bag of marijuana in that area, as well as another bag of marijuana further down the road in the same path of flight. Wadlegger explained that he believed the crack was packaged for sale.
The defendant's key role in facilitating the sale to the undercover officer demonstrates his participation in a retail drug delivery service from which the grand jury could infer his knowledge of additional drugs that would be available for future deliveries. See Fernandez, 57 Mass.App.Ct. at 566 (car in which defendant was passenger “was the store from which a retail trade in cocaine was being conducted,” “reasonable person would think it probable that [other person in car] was an accomplice in the unlawful conduct”). That the defendant was driving the car that led police on a chase would support an inference of consciousness of guilt on the possession charge broadly but also the more specific conclusion that the defendant did not want to be apprehended with additional drugs in the car and that he therefore had a motive and intention to escape or at the very least put distance between his car and the pursuing cruiser to enable Dixon to discard the additional contraband. See Commonwealth v. Jefferson, 461 Mass. 821, 826–827 (2012) (jury could infer that defendant-driver sped away from police to ensure “a head start that would provide some separation between the vehicles” to give other defendant opportunity to surreptitiously discard contraband he feared police would find during stop and to ensure that “inevitable police stop” would occur “a significant distance away from where the contraband had been discarded”); Commonwealth v. Tracy, 27 Mass.App.Ct. at 458 (“inferences of complicity” are natural where “defendant engaged in a high-speed police chase, and [evidence of the crime was] thrown from the car”).
c. Resisting arrest. The defendant contends that the resisting arrest indictment should have been dismissed because the grand jury minutes do not indicate that his flight involved a “substantial risk of causing bodily injury” to the police or others. There is no merit to this argument.
Under G.L. c. 268, § 32B(a)(2), inserted by St.1995, c. 276, “[a] person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by ... using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” “The focus of prong two of the resisting arrest statute is on criminalizing the creation of the risk.... To be sure, flight from arrest, alone, does not create a substantial risk of bodily injury to the arresting officer or another. However, the circumstances of flight from arrest can create such a risk.” Commonwealth v. Sylvia, 87 Mass.App.Ct. 340, 342 (2015) (citation and quotation omitted).
The grand jury heard testimony that the officers “pulled behind the defendant's vehicle and activated their emergency equipment” but that he did not stop in response to their “lights and sirens” and instead “began accelerating.” Wadlegger testified that in the course of his flight, the defendant veered into “the oncoming eastbound lane of traffic and then cut back over to the westbound lane, and then took a sharp right” to cut through a gasoline station parking lot. Wadlegger said that the defendant was traveling “on Berkshire Avenue in excess of sixty to sixty-five miles an hour” and that when the defendant encountered traffic stopped at a traffic light at the top of a hill, “he attempted to brake and lost control, striking a large tree.... Upon making contact with the tree, the right front tire of the vehicle became separated from the vehicle, causing the vehicle to spin out and come to a complete stop.” Finally, Wadlegger testified that the defendant and the front-seat passenger sustained minor injuries due to the crash and were transported for treatment.
We are satisfied that by engaging in dangerous driving to evade the pursuing officers, the defendant exposed the officers, other motorists, and his passengers to the substantial risk of bodily injury that would be caused by a motor vehicle accident. In fact, his passengers sustained injuries as a result of just such an accident. See Commonwealth v. Montoya, 457 Mass. 102, 105–106 (2010) ; Sylvia, 87 Mass.App.Ct. at 342 (sufficient risk of injury where fleeing defendant led pursuing officer in “late night darkness” onto “dug-up” roadway with “various terrain and object obstacles” on which “motor vehicles could have been traveling” even though no pedestrians or vehicles were observed).
2. Sufficiency of the evidence. In reviewing the denial of a motion for a required finding of not guilty, “[w]e look to see whether any rational trier of fact, taking the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth, could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Arias, 29 Mass.App.Ct. 613, 617 (1990), S.C., 410 Mass. 1005 (1991). The Commonwealth is not required to disprove every possible alternative theory explaining the defendant's behavior, and inferences need only be reasonable and possible, not necessary and inescapable. Id. at 618, 620.
a. Distribution. The defendant contends that his motion for a required finding of not guilty should have been allowed based on his mere presence defense. He argues that it was equally likely that he was innocently driving as it was that he was a joint venturer in the cocaine distribution. These two propositions are not in equipoise. That the defendant can hypothesize a possible, if implausible, innocent explanation for his conduct does not mean that the proposition of mere and innocent presence and aiding and abetting were equally likely. See LaPerle, 19 Mass.App.Ct. at 428 (judge in jury-waived trial “could properly have concluded” that defendant's “suggested inferences were extremely unlikely” and in such “circumstances an appellate court will not upset the trial judge's evaluation of the evidence”). Again, the Commonwealth is not required to exclude every hypothesis.
The reasoning of our probable cause analysis above is applicable here as well where the Commonwealth's more robust trial evidence was sufficient to meet the higher standard of proof beyond a reasonable doubt. The judge heard evidence that the defendant drove Dixon to first meet someone who looked like a “crack head junky” and then followed Dixon's direction to undertake steps to evade detection by driving to a second meet spot and that he was not shocked, surprised, or angry when Dixon sold crack to the “junky” from the back seat. Then, at great risk to himself and others, the defendant led the police on a high-speed chase, weaving in and out of both traffic and opposing travel lanes. This flight from police facilitated Dixon's attempts at both escape and disposal of additional contraband and demonstrated the defendant's consciousness of guilt from his involvement in the drug dealing. Based on the Commonwealth's evidence regarding narcotics distribution in Springfield, the judge could infer that the defendant had agreed “to provide aid or assistance in committing the crime [and] in escaping.” Zanetti, 454 Mass. at 470. The motion for a required finding of not guilty at the close of the Commonwealth's case was properly denied. The defendant's conduct before, during, and after the sale to the undercover officer indicates his knowing participation and not just his mere presence or his recognition that he was a witness to a crime. Contrast Commonwealth v. Saez, 21 Mass.App.Ct. 408, 412 (1986).
The Commonwealth's case was even stronger when the defendant renewed his required finding motion after the close of all evidence as Dixon's testimony would have permitted the judge to conclude that the defendant had been present for the telephone call that set the drug deal in motion, providing yet another basis to conclude that the defendant knew the purpose for which he was driving Dixon.
b. Possession with intent. The defendant contends that a fact finder could only speculate as to his knowledge of the additional cocaine that Dixon possessed before Dixon threw it out the window during the chase. For reasons similar to those underpinning our analyses regarding the existence of probable cause for this offense and the sufficiency of the evidence underlying the distribution charge, and viewing the evidence and inferences in the light most favorable to the Commonwealth, the judge could have reasonably concluded that the defendant had knowledge of the additional cocaine that Dixon possessed as part of the drug delivery service for which the defendant was acting as driver and, that by so participating in the delivery operation, the defendant was willing to assist Dixon in further distribution. The evasive driving during the attempt to flee from police also supports the defendant's knowledge and intent as the judge could have interpreted it as an attempt to protect the remaining stash from seizure by the police or, at the very least, to enable the coventurers to dispose of the narcotics prior to arrest.
The defendant repeatedly suggests that the defendant “may not have known” of this extra cocaine. “The simple answer to this contention is that on appeal we must consider the evidence in the light most favorable to the Commonwealth.” Commonwealth v. Joyce, 84 Mass.App.Ct. 574, 579–580 (2013). We accordingly decline this invitation to view the evidence in the light most favorable to the defendant.
Nor does the fact that there is no direct evidence of the defendant's knowledge reduce the conclusion that he possessed that knowledge to impermissible speculation as opposed to permissible inference. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (“A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial”).
c. Resisting arrest. The defendant contends that there was insufficient evidence that he was put on notice that the police were trying to stop and arrest him. We disagree.
“The standard for determining whether a defendant understood that he was being arrested is objective—whether a reasonable person in the defendant's circumstances would have so understood.” Commonwealth v. Joyce, 84 Mass.App.Ct. 574, 581 (2013), quoting from Commonwealth v. Grant, 71 Mass.App.Ct. 205, 208 (2008). Viewing the evidence in the light most favorable to the Commonwealth, the judge could readily have concluded that a reasonable person who is speeding away from an unmarked cruiser that has activated its lights and sirens following consummation of a drug deal from his back seat would understand that police were trying to seize him to effect an arrest of someone, even if just his drug-dealing rear passenger. That the car he was driving had just been used as the retail storefront for the sale of crack cocaine would have signaled that the pursuing officers intended an arrest and not merely a routine traffic stop. The actions of the officers right after the drug sale in activating their lights and sirens and racing after the defendant as he exposed all involved to a risk of a car accident at high speed “objectively communicated that intention to the defendant ... during the pursuit.” Grant, 71 Mass.App.Ct. at 209. Contrast Commonwealth v. Quintos Q., 457 Mass. 107, 110–111 & n. 5 (2010) (insufficient evidence of resisting arrest where passenger in car fleeing from cruiser with lights and sirens activated had no way to know that police were trying to stop car for something other than routine traffic violation and it was not clear even at trial why officers commenced pursuit). That at various points during the more than two-mile chase the defendant was successful in putting distance and other cars between him and his police pursuers does not preclude a finding that he knew of their intent to stop and effect an arrest. The judge properly denied the defendant's motion for a required finding of not guilty on resisting arrest at the close of the Commonwealth's case.
Far from causing the Commonwealth's case to deteriorate, Dixon's testimony during the defendant's case-in-chief only further supports the defendant's knowledge of the police pursuit. Dixon testified that he was aware that the defendant's car was being followed, recognized one of the pursuers as connected with law enforcement, and decided to toss the rest of his drug stash when the police activated their lights “at the beginning of the chase.” The judge could properly infer that Dixon would have communicated his suspicions to the defendant, on whose evasive driving maneuvers he relied to help him escape, or at least buy him time to discard additional incriminating evidence.
Judgments affirmed.