Opinion
No. 11–P–1694.
2013-06-14
COMMONWEALTH v. Heather TETREAULT.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant and a codefendant, Paul Hitchcock, were convicted of distribution of cocaine following a jury-waived trial.
On appeal, the defendant contends that the motion judge erred by denying her motion to suppress evidence (marked bills) seized during a warrantless stop of Hitchcock's automobile. The defendant was a passenger in the car and the Commonwealth relied on evidence seized from the car to establish the defendant's guilt. She also claims that the judge erred in finding her guilty based on a theory of joint venture when, she alleges, the Commonwealth tried her as a principal, and that the evidence was insufficient. Last, she argues that it was error to deny her motion to sever. We affirm. Discussion. 1. Motion to suppress. We summarize the facts found by the motion judge after an evidentiary hearing. On the evening of May 10, 2007, officers assigned to the Blackstone Valley Regional Drug Task Force arranged to make an undercover purchase of cocaine with the assistance of a known informant.
In a subsequent proceeding before the same judge, the defendant pleaded guilty to a related conspiracy charge. On appeal, the defendant raises no issue as to this conviction. Hitchcock's conviction was affirmed by this court in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Hitchcock, 81 Mass.App.Ct. 1124 (2012).
The informant contacted his supplier and asked him to bring the cocaine to a bar located in Mendon. Soon thereafter, Hitchcock drove into the parking lot. At about the same time, the informant received a telephone call, after which he stated to the officers that his friend (the supplier) had arrived. The officers then watched the informant, to whom they had given $750 in marked bills (the buy money), walk over to Hitchcock's car and enter the backseat. A short time later, the informant returned to the bar and delivered what he described as “high powered” cocaine to one of the officers.
In the months preceding May 10, 2007, that same informant had facilitated additional controlled purchases of cocaine. Although the judge found that Hitchcock had supplied cocaine to the informant during an undercover transaction that had occurred on February 17, 2007, there was no evidence that the defendant was involved in any criminal activity on that date. Because we conclude that the police had sufficient probable cause to stop Hitchcock's vehicle and arrest him and the defendant based on the events of May 10, 2007, alone, it is not necessary to recount the details of the entire investigation.
Meanwhile, other officers maintained surveillance of Hitchcock's car. After following the vehicle for a mile or so, the officers signaled for the car to pull over. When the officers approached, Hitchcock, who was in the driver's seat, appeared to be deleting information from his cellular phone. The defendant was sitting in the passenger seat holding what turned out to be $700 of the buy money in her hand. However, in response to a question from an officer, the defendant stated that she had just cashed a check. After the defendant and Hitchcock were removed from the car, another $50 worth of the buy money was found on the driver's seat.
On the basis of these facts, the judge found that there was probable cause to stop the vehicle and arrest the occupants of the car. The defendant challenges this conclusion, claiming that the police lacked probable cause and, as a result, her motion to suppress should have been allowed.
“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 the car and arrest Hitchcock and 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), cert. denied, 446 U.S. 955 (1980). Here, the police were warranted in believing that one of the occupants of the car had just delivered cocaine to the informant in exchange for $750. As noted, the car arrived as expected and its occupants permitted the informant to get into the car for a brief time. Immediately afterward, the informant gave what was purported to be “high powered” cocaine to the police. See Commonwealth v. Washington, 449 Mass. 476, 481 (2007) (probable cause to stop car and arrest occupants where officers believed that “the defendants had just engaged in an illegal drug transaction”). At a minimum, these facts provided probable cause to stop the car to search for the buy money. Once the officers observed the buy money in the hands of the defendant, they had probable cause to believe that she had participated in the offense. Accordingly, we discern no error in the denial of the defendant's motion to suppress.
2. Joint venture and sufficiency of the evidence. For the first time on appeal, the defendant argues that the judge erred by convicting her based on a theory of joint venture when that theory was not set forth in the indictment, or, allegedly, relied upon by the Commonwealth at trial. Passing on whether the point has been adequately preserved, the argument fails for two reasons: first, there is no requirement that the Commonwealth's theory of guilt be specified in the indictment. See Commonwealth v. Lopes, 455 Mass. 147, 169–170 (2009). Second, as the Commonwealth correctly notes in its brief, following the Supreme Judicial Court's decision in Commonwealth v. Zanetti, 454 Mass. 449 (2009), the Commonwealth is not required to prove whether a defendant has committed a crime as a principal or as a joint venturer; rather, the Commonwealth must only demonstrate that the defendant “knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Id. at 468.
The defendant also argues that, notwithstanding the theory of guilt, the evidence was insufficient to support her conviction. To prove the defendant's conviction of distributing cocaine in violation of G.L. c. 94C, § 32A, the Commonwealth had to prove three essential elements beyond a reasonable doubt: (1) the substance in question was cocaine; (2) the defendant (alone or with others) 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).
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671 (1979), 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 transaction that occurred in the car between Hitchcock, the defendant, and the informant, there was abundant circumstantial evidence from which the judge, as trier of fact, could have reasonably inferred that such a transaction had occurred.
First, the police observed the informant enter the vehicle for the express purpose of procuring cocaine. Second, the defendant had $700 of the buy money in her hand, and then provided a false statement as to the source of the money. Contrary to the defendant's assertion, that statement permitted the trial judge to draw an inference of consciousness of guilt. See Commonwealth v. Toney, 385 Mass. 575, 584 n. 4 (1982).
Thus, the evidence permitted a rational trier of fact to find beyond a reasonable doubt that the defendant either alone or with Hitchcock 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 the defendant's statements regarding the source of the marked money.
3. Motion to sever. The defendant claims that the judge erred in denying her motion to sever. Although the record discloses that the motion was withdrawn prior to trial, Mass.R.Crim.P. 9(d)(1), 378 Mass. 860 (1979), permits a judge to grant severance of defendants upon her own motion if a joint trial is not in the best interests of justice. Thus, we do not consider the issue waived as the Commonwealth contends. Instead, we review the record to determine whether the judge abused her discretion by not ordering severance sua sponte. Because we conclude that the defendant has not demonstrated that a joint trial deprived her of a fair trial in any respect, there was no abuse of discretion. See Commonwealth v.. Mahoney, 406 Mass. 843, 848–849 (1990). Contrast Commonwealth v. Moran, 387 Mass. 644, 659 (1982).
We are not persuaded that the defendant was prejudiced by evidence that Hitchcock had been involved in a prior drug transaction, as it was clear that the defendant had not been involved in any alleged criminal activity other than what was alleged to have occurred on May 10, 2007. Nor do we agree that Hitchcock generally asserted that the defendant was guilty while he was not. To the contrary, the defenses in this case were compatible: both Hitchcock and the defendant essentially maintained that the Commonwealth had failed to prove that a drug sale had taken place. Lastly, there is no merit to the defendant's argument that a joint trial made it likely that the judge reached a “compromise verdict.”
Judgment affirmed.