Opinion
10-P-672
12-02-2011
COMMONWEALTH v. DONTA HOOD.
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, Donta Hood, appeals from his convictions of possession of cocaine with intent to distribute and the order denying his motion for new trial. On appeal, the defendant asserts error due to insufficiency of evidence, the judge's refusal to give the jury a missing witness instruction, violation of the defendant's Sixth Amendment right under the United States Constitution to confrontation, and ineffective assistance of trial counsel. We affirm.
Specifically, the defendant was convicted of three counts: unlawful possession of cocaine with intent to distribute, G. L. c. 94C, § 32A; unlawful possession of cocaine with intent to distribute in a school zone, G. L. c. 94C, § 32J; and unlawful possession of cocaine with intent to distribute -- subsequent offense, G. L. c. 94C, § 32A(d).
Background. From the evidence at trial the jury could have found the following. Brockton police Officers Thomas Hyland and Brian Donahue were conducting routine patrol duties in uniform and in a marked cruiser when they observed an individual, later identified as Wesley Williams, wandering on foot around a filling station property in the early morning hours. The officers observed Williams approach at least two unidentified individuals and converse briefly with them. Afterward, the officers saw the defendant arrive at the station on his bicycle. Williams approached the defendant, and the defendant gestured for them to go behind a fence separating the station from a private residential property.
The record conflicts as to how many conversations Williams had with various individuals at the station. For purposes of our analysis, the discrepancy is irrelevant.
Unable to see Williams and the defendant behind the fence, the officers moved their cruiser to the front of the residential property, left their cruiser, and approached the residence's driveway. When Williams saw the officers, he raised his hands. Meanwhile, the defendant fled. Both officers took off after the defendant. During the chase, Officer Hyland observed the defendant jettison something near a gutter by the residence. After the officers caught the defendant, they retraced their steps. Brockton police Sergeant Mark Celia, an officer who arrived to provide back-up support, found a clear plastic bag containing twenty-one individually wrapped packages of what appeared to be cocaine. Near the fence where the officers had observed Williams and the defendant, Officer Donahue found two individually wrapped packages of what he believed to be crack cocaine. Subsequently, during the defendant's booking, Officer Hyland found $118 and a cellular telephone on the defendant's person.
Discussion. Insufficiency of evidence. The defendant contends that the evidence is insufficient to establish the element of possession. Our review is informed by the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). While much of the evidence can be characterized as circumstantial, it was sufficient for the jury to find beyond a reasonable doubt that the defendant possessed the cocaine. '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). See Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392- 393 (1999) (defendant observed throwing plastic bag over fence; plastic bag containing eighteen hits recovered afterward).
The case of Commonwealth v. Rodriguez, 456 Mass. 578 (2010), is unavailing to the defendant. There, the Supreme Judicial Court held that narcotics discarded by a third party did not permit the jury to find that the defendant had possession of the discarded contraband at a prior point in time. Id. at 582-585. The drugs that the defendant himself discarded, as in this case, carried sufficient evidentiary weight. See id. at 585-590.
Lack of missing witness instruction. There was no error in the judge's refusal to provide the missing witness instruction requested by the defendant. Williams, a putative drug purchaser, was not 'friendly to, or at least not hostilely disposed toward' the Commonwealth. Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992). There was simply no basis to conclude that the Commonwealth 'wilfully attempted to withhold or conceal significant evidence.' Commonwealth v. Richardson, 429 Mass. 182, 183 (1999) (citation omitted).
Right to confrontation. The Commonwealth introduced the drug certificate in evidence in strict compliance with Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532 (2009). The fact that the drugs also were tested by another chemist at the State laboratory is irrelevant in these circumstances. The chemist who testified at trial conducted the test memorialized by the certificate, prepared the certificate, signed it, and was cross-examined.
Ineffective assistance of counsel. On appeal the defendant asserts that counsel was ineffective in failing to make numerous motions. However, as in Commonwealth v. Saferian, 366 Mass. 89, 99 (1974), the 'checklist of the . . . motions that could theoretically have been made but were passed over' is unavailing because the defendant 'points to no particular motion that would have been of value' to his case.
We find that this case fails to satisfy the second prong of Saferian. As an example, the defendant asserts that trial counsel's failure to move to suppress the drugs found along his flight path constitutes ineffective assistance. However, the 'precise moment of seizure [is] critical' in determining the likely success of a suppression motion. Commonwealth v. Barros, 435 Mass. 171, 173 (2001). Here, the seizure occurred after the defendant took flight. See Commonwealth v. Battle, 365 Mass. 472, 475 (1974) ('On seeing two persons run . . . in apparent response to an approaching police vehicle, the police had the right -- if not the duty -- to conduct further visual investigation').
We find that the defendant's reliance on Commonwealth v. Pena, 31 Mass. App. Ct. 201, 206-207 (1991), is misplaced. Unlike in Pena, Officers Hyland and Donahue were dressed in full police uniforms. The defendant fled in response to the approach of clearly recognizable police officers.
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To the extent that we do not address the defendant's other arguments regarding ineffective assistance of counsel, 'they 'have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),