Opinion
21-P-598
06-08-2022
COMMONWEALTH v. JEFF MAINGRETTE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 2 3.0
The defendant appeals from an order of a District Court judge finding him in violation of his probation, contending that the finding was based solely on unreliable hearsay. We affirm.
Background.
On February 25, 2020, the defendant admitted to sufficient facts on a charge of operating under the influence of intoxicating liquor. As relevant here, the judge continued the case without a finding (CWOF) and placed the defendant on probation until February 25, 2021. Among other things, the order of probation conditions required the defendant to comply with all state laws. On November 9, 2020, the probation department issued a notice of probation violation and hearing to the defendant. The notice alleged that the defendant committed a new criminal offense (possession of a class B substance with intent to distribute), failed to pay certain fees, and failed to verify his address. At the revocation hearing, a probation officer recited the police report filed in connection with the defendant's new arrest into the record and the report was admitted into evidence. There was no other evidence presented.
Neither party objected to proceeding without the testimony of the police officer.
According to the police report, on November 7, 2020, the Everett police received a report of an unconscious man in a car. Upon arrival, police officers found the defendant unconscious in the driver's seat of a car, with the keys in the ignition. Initially the officers were unable to wake the defendant by knocking on the window, opening the car door, and shaking the defendant. After about thirty seconds of a sternum rub, the defendant regained consciousness. Although not fully alert, the defendant did not believe that he had been unconscious, but rather that he had been using an application on his cell phone when the police arrived. The defendant stepped out of the car at the request of ambulance personnel who had arrived on the scene. As the defendant did so, a police officer saw a clear plastic bag of pills, tied off at the top, on the floor of the car in front of the driver's seat. The pills, which totaled seventy-eight, were in multiple colors with various markings, and were listed in the report as oxycodone. The police officers also found a roll of cash totaling $240 in the defendant's left pocket, which was separate from other cash found in his right pocket.
There were thirty-five blue pills marked "M and 30," twenty white pills marked "RP and 30," one yellow pill marked "T 189," four blue pills marked "U24," nine blue pills marked "A 51," and nine blue pills marked "224." The police report also listed the pills as "DRUGS/NARCOTI" and "OTHER DEPRESSA."
The judge found the defendant violated his probation by having committed a new offense. He found that the hearsay statements in the police report were substantially trustworthy and demonstrably reliable. The judge vacated the CWOF, entered a guilty finding, and sentenced the defendant to a suspended sentence. This appeal followed.
Discussion.
We review an order revoking probation for an abuse of discretion, Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014), and to determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the probationer] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass.App.Ct. 582, 594 (2000). Because a revocation hearing is not a criminal prosecution, requiring "the full panoply of constitutional protections," Commonwealth v. Purling, 407 Mass. 108, 112 (1990), "[h]earsay evidence that is substantially reliable may serve as the basis for finding a probation violation, and a determination of substantial reliability obviates what would otherwise be the defendant's due process right to confront the witnesses against him." Commonwealth v. Costa, 99 Mass.App.Ct. 435, 438 (2021) .
Here, the defendant was charged with a new criminal offense. This alone is enough to prove, by a preponderance of the evidence, that the defendant violated the conditions of his probation. See Bukin, 467 Mass. at 520. The defendant argues, however, that the Commonwealth's evidence failed to prove that the pills recovered by the police were oxycodone. Specifically he contends that a single conclusory statement in the police report was not substantially reliable to satisfy the Commonwealth's burden. For the reasons that follow, we conclude that the judge acted within his discretion in finding that the hearsay evidence was sufficiently reliable, even if the pills were not necessarily oxycodone.
The police officers received a report of an unconscious man in a car, a fact corroborated by their personal observations of the defendant, and their efforts to wake him. See Purling, 407 Mass. at 121. On the floor on the driver's side of the car, where the defendant was located, the police observed a clear plastic bag of assorted pills. From this evidence, the judge could permissibly infer that the defendant was suffering from a drug overdose, see Commonwealth v. Bouley, 93 Mass.App.Ct. 709, 712-713 (2018), as inferences "need only be reasonable and possible," not "necessary or inescapable" (citation omitted). Commonwealth v. White, 452 Mass. 133, 136 (2008). "Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence." Commonwealth v. Paine, 86 Mass.App.Ct. 432, 435 (2014), quoting Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). Here, the quantity, packaging, coloring, and markings of the pills, in combination with the separate and distinct roll of cash found in the defendant's pocket, permitted the judge to infer that the defendant possessed a controlled substance with the intent to distribute it. See Commonwealth v. Kennedy, 426 Mass. 703, 706 (1988) ("The pattern of street-level drug sales . . . is not so obscure or remote from the common knowledge of a District Court judge that she could not supplement with her own inferences the officer's [statements] concerning his inferential process in identifying . . . the [evidence] as a drug sale"). Compare Commonwealth v. Alisha A., 56 Mass.App.Ct. 311, 313-315 (2002) (sufficient evidence that pills were controlled substance included pills' color and markings), with Commonwealth v. Perez, 76 Mass.App.Ct. 439, 443-444 (2010) (evidence insufficient where no objective criteria as to controlled substance where police testified substance seized "appeared" to be cocaine). And the location and number of pills found in a clear plastic bag -- and not in prescription bottles -- is similarly indicative of illegal drug possession with intent to distribute. See Commonwealth v. Ortiz, 431 Mass. 134, 139-140 (2000). Finally, the roll of cash that was separated from the other money located in the defendant's pockets is also indicative of drug distribution. See Commonwealth v. Ormond O., 92 Mass.App.Ct. 233, 238-239 (2017) (folds of money indicative of drug trade activity).
Viewing the evidence cumulatively, the judge did not abuse his discretion in concluding that the police report contained substantially reliable evidence that the pills were a controlled substance, even if the pills were not necessarily oxycodone, and therefore finding that the Commonwealth met its burden to establish, by a preponderance of the evidence, that the defendant violated the terms of his probation by committing a new offense.
We note that in these circumstances, we do not see how the precise nature of the controlled substance affected the judge's ultimate disposition. The defendant has not requested a remand for consideration of the disposition, in the event that we conclude, as we do, that the judge could have properly found that the defendant committed a new offense, even if that offense did not necessarily involve oxycodone. Cf. Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008).
Order revoking probation and imposing sentence affirmed.
The panelists are listed in order of seniority.