Opinion
10-P-1792
12-20-2011
COMMONWEALTH v. JEAN G. PIERRE.
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, Jean G. Pierre, was the subject of an indictment charging him with trafficking in cocaine of more than twenty-eight grams, but less than 100 grams. A jury returned a guilty verdict on the trafficking indictment. On appeal, the defendant claims that the judge committed reversible error in denying his motion for a required finding of not guilty.
The defendant was also indicted for distribution of cocaine (subsequent offense) and resisting arrest. The Commonwealth filed a nolle prosqui on the distribution charge, and the judge allowed a motion for a required finding of not guilty on the resisting arrest charge.
1. Background. Because the defendant challenges the sufficiency of evidence, we summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Zubiel, 456 Mass. 27, 30 (2010). On September 10, 2008, Detective James Hyde, who has extensive specialization training and experience in the field of narcotic investigation, was informed by a confidential informant that a certain individual had cocaine to sell. The informant described that individual, the defendant, and also described his clothes. Detective Hyde asked the informant to arrange a meeting with the defendant so that the detective, working undercover, could purchase cocaine.
Before the informant could arrange a meeting, he reported to Detective Hyde that a drug delivery was going to take place at One Franklin Street, in Somerville. Surveillance was placed at the site, which the defendant may have seen. The defendant entered the building, and left a short time later. Thereafter, the informant, acting at Detective Hyde's direction, arranged for him to meet the defendant at a local 99 Restaurant to buy cocaine. Detective Hyde and another detective entered the restaurant and posed as patrons. The defendant walked into the restaurant, looked around, and left.
Another meeting between Detective Hyde and the defendant was scheduled at a hotel in Somerville. Detective Hyde waited in the lobby while several police officers hid themselves in the area. The defendant arrived and met the detective, who invited the defendant to come to a 'room upstairs' where they could complete the transaction. The defendant fled, throwing away a packet of cocaine on his way, and the police captured and arrested him. The police then discovered cash in the amount of $460 on his person, folded in a particular manner consistent with drug dealing. More cocaine was found in the defendant's vehicle.
At trial, police experts testified that the amount of cocaine found, and the manner in which the money recovered was folded, were consistent with drug distribution.
2. Discussion. To support a conviction of trafficking in cocaine, the Commonwealth must prove that the defendant knowingly or intentionally possessed twenty-eight or more grams of cocaine and had the intent to distribute it. G. L. c. 94C, § 32F(b). In this matter, the defendant does not dispute the sufficiency of the evidence as to possession of the cocaine, its composition, or its total weight. Rather, he argues that the evidence is insufficient to establish his intent to distribute cocaine.
In reviewing the sufficiency of the evidence, the 'question is 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 (emphasis in original).' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318- 319 (1979). 'A conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt.' Commonwealth v. Platt, 440 Mass. 396, 401 (2003). 'Intent is a factual matter that may be proved by circumstantial evidence.' Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427 (1985).
Here, ample circumstantial evidence clearly demonstrated the defendant's intent to distribute. Therefore, substantially for the reasons set forth in the Commonwealth's brief, in particular, at pages 12 through 19, we affirm the conviction.
Judgment affirmed.
By the Court (Rapoza, C. J., Smith & Vuono, JJ.),