Opinion
No. 11–P–1536.
2012-06-6
COMMONWEALTH v. Juan A. SOTO, Jr.
By the Court (KAFKER, BROWN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Juan A. Soto, Jr., was convicted of one count of possession of cocaine with intent to distribute, in violation of G.L .c. 94C, § 32A( a ).
On appeal, he argues that his motion to suppress evidence should have been granted, that there was insufficient evidence to establish his intent to distribute cocaine, and that he was prejudiced by improper “guilt by association” evidence and related statements in closing argument by the Commonwealth. Because the police officer's actions constituted a reasonable frisk for weapons, the evidence seized (a plastic bag containing cocaine) was admissible. This evidence, in conjunction with other evidence at trial, was sufficient for the jury to infer intent to distribute, and we discern no error in the judge's evidentiary rulings. We therefore affirm. Motion to suppress. An officer frisking an individual for weapons as part of a Terry stop
The complaint also charged the defendant with simple possession of cocaine, in violation of G.L.c. 94C, § 34. As that crime is a lesser included offense of possession with intent to distribute and the charges related to the same act, the simple possession count merged into the conviction for possession with intent to distribute, as reflected on the docket.
typically begins by patting down the individual's outer clothing and then, if he feels something that may be a weapon, investigates further. See Commonwealth v. Torres, 433 Mass. 669, 675 n. 6 (2001), citing Commonwealth v. Silva, 366 Mass. 402, 408 (1974). In this case, the defendant repeatedly reached toward his waistband, despite an officer's orders to stop doing so. In response, the officer lifted up the defendant's shirt and pulled out his waistband to see if he had a knife or gun.
See Terry v. Ohio, 392 U.S. 1 (1968).
Instead, he saw a plastic bag in the defendant's underwear that contained cocaine.
The defendant does not contest that the officer had the reasonable suspicion necessary to justify a protective patfrisk.
The defendant argues that Commonwealth v. Flemming, 76 Mass.App.Ct. 632, 637–638 (2010), mandates suppression. However, in Flemming the defendant was cooperative and had his hands in the air. See id. at 638. In contrast, here the defendant repeatedly refused to stop reaching toward his waist. The motion judge (who was also the trial judge) credited the officer's testimony that he feared the defendant had a knife in his waistband, which she noted is “a common place to hide a weapon.” Courts have not required an exterior pat-down where doing so “would have made the situation more dangerous, such as where a defendant's actions suggest that he may be reaching for a weapon.” Id. at 636. See Commonwealth v. Jones, 6 Mass.App.Ct. 942, 942–943 (1978); People v. Superior Court, 15 Cal.App.3d 806, 809–810 (1971). See also Commonwealth v. Va Meng Joe, 40 Mass.App.Ct. 499, 509–511 & n. 14 (1996), S. C., 425 Mass. 99 (1997). Mindful that “an officer engaged in a Terry stop and frisk [need not] evaluate the least [intrusive] available alternative before acting,” Flemming, supra at 637, we hold that the officer's action was not disproportionately intrusive under the circumstances. The judge therefore did not err in denying the motion to suppress.
Sufficiency of the evidence. The defendant concedes that the evidence was sufficient to establish his possession of cocaine, but contends there was insufficient evidence of his intent to distribute it. We must view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Mitchell, 47 Mass.App.Ct. 178, 182 (1999), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Intent to distribute is often inferred from circumstantial evidence. See ibid., citing Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). The defendant was observed going quickly into and out of a building where arrests for drug distribution had recently been made, in the company of an individual who had been at another building known for drug dealing earlier that day. Secreted in the defendant's underwear was a plastic bag containing seventeen smaller bags of cocaine, a manner of packaging that an experienced officer testified was not consistent with his just having purchased the drugs. See Commonwealth v. Clermy, 421 Mass. 325, 331 (1995), and cases cited. The defendant did not have any paraphernalia on his person with which to smoke or consume the cocaine. See Commonwealth v. Dessources, 74 Mass.App.Ct. 232, 239 (2009), S. C., 77 Mass.App.Ct. 1119 (2010). He had fifty-four dollars in cash in his pocket, and more importantly, in his hand was a ten-dollar bill, which the evidence indicated was the typical price of a bag of cocaine. See, e.g., Commonwealth v. Dancy, 75 Mass.App.Ct. 175, 178 (2009). The jury could reasonably have concluded that the defendant was in the middle of a drug transaction or otherwise intended to distribute the cocaine.
Guilt by association. Finally, the defendant asserts that the prosecutor's repeated questioning about and references to “Mr. Garetsky” constituted an attempt improperly to “impugn the defendant's character by insinuating his knowing intimacy with a drug criminal.” Commonwealth v. McCoy, 59 Mass.App.Ct. 284, 289 (2003). However, the evidence relating to Garetsky was relevant to show why the police took notice of the defendant. See Commonwealth v. Perez, 27 Mass.App.Ct. 550, 554 (1989). The judge, in response to the defendant's objections, struck testimony regarding why Garetsky was in that location. The portions of the prosecutor's closing to which the defendant now objects were either based on the evidence or reasonable inferences therefrom, or merely “rhetorical flourish[es] which the jury, using their common sense, would identify as such.” Commonwealth v. Pasteur, 66 Mass.App.Ct. 812, 829 (2006). We discern no error in admitting the evidence, nor any substantial risk of a miscarriage of justice in the unobjected-to closing argument. See Commonwealth v. Martinez, 67 Mass.App.Ct. 788, 796 (2006).
Judgment affirmed.