Opinion
13-P-1797
10-28-2015
COMMONWEALTH v. DARRES EDMONDS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order revoking his probation based upon the alleged commission of a new offense, i.e., distribution of cocaine., Specifically, the defendant argues that the revocation judge erred in finding that the Commonwealth proved, by a preponderance of the evidence, that the substance that the defendant allegedly handed to the undercover officer was, in fact, "crack" cocaine.
The defendant also appealed from the order denying his motion for new trial, which was consolidated with the present appeal. However, the defendant waived in his reply brief any argument regarding that order.
The defendant also contends that his conviction of unlawful possession of ammunition (count 7) must be vacated because it is duplicative of his conviction of carrying a loaded firearm (count 5). To the extent the defendant failed to raise this argument in a motion for postconviction relief, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Negron, 462 Mass. 102, 108 (2012); Commonwealth v. Bolden, 470 Mass. 274, 280 n.4 (2014). "It is well established that duplicative convictions pose such a risk, even where the punishments are imposed concurrently." Bolden, supra.
The Commonwealth concedes that Commonwealth v. Johnson, 461 Mass. 44, 54 (2011), controls, and that count 7 should be dismissed. We agree.
Background. On March 4, 2009, the defendant pleaded guilty in the Superior Court to one count of assault by means of a dangerous weapon (count 2), two counts of assault and battery by means of a dangerous weapon (counts 3 and 4), one count of carrying a loaded firearm (count 5), one count of unlawfully carrying a firearm (count 6), and one count of unlawful possession of ammunition (count 7). The judge sentenced the defendant to concurrent sentences of three to four years in State prison on counts 2, 3, 6, and 7, and to two years of probation to be served from and after the State prison sentence on counts 4 and 5. The defendant's sentence was revised at the request of the Department of Correction; on April 16, 2009, the sentence on count 7 was revoked and revised to two years of probation, from and after the State prison sentence. The defendant's probation commenced on March 29, 2011.
Count 1, which charged armed assault with intent to murder, was dismissed.
On July 21, 2011, a criminal complaint issued, charging the defendant with distribution of cocaine, following the defendant's arrest on the prior day after he allegedly conducted a hand-to-hand drug transaction with an undercover police officer. On that same day, a notice of surrender and hearing issued to the defendant for an alleged probation violation.
On August 3, 2011, a Superior Court judge held a probation revocation hearing, at which the sole witness was Worcester police Officer Michael Hanlon, the undercover officer with whom the defendant allegedly conducted the hand-to-hand drug transaction. At the conclusion of the hearing, the judge made the following findings.
"[B]ased on the testimony of Officer Hanlon, which I credit, I find that in July of this year, information came to his attention about someone known as 'Dee' who was selling crack cocaine.The judge sentenced the defendant to six to eight years in State prison on count 4 (assault and battery by means of a dangerous weapon), and to two years of probation from and after on counts 5 and 7 (carrying a loaded firearm and unlawful possession of ammunition). The defendant now appeals.
"Officer Hanlon, in his capacity as a Worcester police officer, undertook an investigation, contacted this individual by using a cellphone number given to him by a confidential informant.
"The cellphone was answered by a male who acknowledged he was Dee, and an arrangement was made for the sale of crack cocaine at a location chosen by Dee, which turns out to be in the Oread Street area.
"Officer Hanlon, in an undercover capacity, met this individual, who he identified and I find was the defendant before me.
"In exchange for eighty dollars in United States currency, the defendant handed the officer four rocks of crack cocaine, and was thereafter arrested.
"The commission of this crime is in direct violation of the terms and conditions of his probation. Accordingly, I find the defendant has violated his probation."
Standard of review. "The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). "A proposition is proved by a preponderance of the evidence 'if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.'" Ibid., quoting from Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940). On appeal, "[t]he question is whether the record discloses evidence sufficient to warrant the finding by the judge that [the defendant] had violated [a] condition of his probation." Commonwealth v. Tate, 34 Mass. App. Ct. 446, 449-450 (1993).
Discussion. The defendant argues that the Commonwealth failed to prove by a preponderance of the evidence that the defendant distributed crack cocaine because the evidence at the probation revocation hearing was insufficient to demonstrate that the substance that the defendant sold to Officer Hanlon was, in fact, crack cocaine. Officer Hanlon had sufficient experience on the vice squad with conducting drug investigations and undercover buys, and sufficient training in drug detection and drug investigations, to render an opinion that the "white rock-like substance" contained inside the bags obtained from his hand-to-hand drug transaction was indeed crack cocaine.
Additional circumstantial evidence of the hand-to-hand transaction and the defendant's subsequent behavior further bolster Officer Hanlon's opinion. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) ("Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence"). Officer Hanlon testified that his confidential informant informed him of a person named Dee selling crack cocaine on Oread Street in Worcester, and provided Hanlon with a telephone number at which he could reach Dee. Hanlon further testified that, after reaching Dee at the telephone number provided and asking him for an "80," Dee handed him "four individually packaged white rock-like substance[s]" in exchange for eighty dollars.
Furthermore, the defendant's actions as the police approached to arrest him indicate that he engaged in a drug transaction. More specifically, Officer Hanlon testified that, as the arresting officers approached the defendant, he loudly yelled, "Fuck," shattered his telephone into several pieces by throwing it to the pavement, and upon being handcuffed, stated, "I'm assuming I'm under arrest for some drug-related charges." Such circumstantial evidence of the defendant's actions, the recounted hand-to-hand drug transaction, coupled with Officer Hanlon's opinion, based on his training and experience, that the four white rock-like substances were indeed crack cocaine, are sufficient to demonstrate by a preponderance of the evidence that the defendant distributed crack cocaine.
The defendant attempts to evade this conclusion through a multifold challenge to the judge's consideration of certain evidence at the probation revocation hearing to support his conclusion that the white rock-like substance was in fact crack cocaine. First, the defendant argues that Officer Hanlon's opinion that the substance was crack cocaine holds no probative value because the revocation judge did not specifically find that Hanlon was qualified to identify the substance as crack cocaine. See ibid. ("The trial judge will first have to make a finding that any police . . . witness's experience with a drug would or would not permit him to give an opinion as to what drug a particular substance was"). Second, the defendant argues that the circumstantial evidence of the defendant's behavior at the time of his arrest affords little probative value to the issue of the true identity of the substance that was exchanged. See Commonwealth v. King, 461 Mass. 354, 360 (2012) ("[T]his evidence [of the defendant's behavior] leads to the conclusion that the defendant took part in what appeared to be a drug transaction but does not go to whether the substance was, in fact, cocaine").
Both lines of argument fail to persuade. The former fails because the revocation judge's findings demonstrate that he impliedly found Officer Hanlon's testimony regarding his training and experience sufficient to afford weight to his opinion that the white rock-like substance was, in fact, crack cocaine, and as discussed supra, we agree. The latter fails because the case law upon which the argument rests deals with far more stringent standards of proof than at issue here. See Dawson, 399 Mass. at 467 (beyond a reasonable doubt standard employed at trial). See also King, 461 Mass. at 361 (harmless beyond a reasonable doubt employed when determining effect of admission of erroneous drug certificate). The defendant has failed to identify, nor are we aware of, any precedential cases that apply those respective principles to circumstances where a lower burden of proof is imposed, and we see no need to extend those principles to such situations. As such, the defendant has not met his burden of demonstrating that this evidence is insufficient to support a finding by a preponderance of the evidence that the defendant committed the offense, which is all that is required at a probation revocation hearing. See Hill, 52 Mass. App. Ct. at 154.
Conclusion. The judgment on count 7 of indictment 07-1377 (unlawful possession of ammunition) is vacated, the plea on that charge is set aside, and that count of the indictment is to be dismissed. See note 2, supra. The order denying the defendant's motion for new trial is affirmed. The order revoking probation is affirmed, but the order imposing sentence is vacated and the case is remanded for resentencing.
So ordered.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 28, 2015.