COMMONWEALTH v. CALLAZO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction of distribution of a class A substance (heroin) in violation of G. L. c. 94C, § 32 (a). His only argument is that the evidence was insufficient to support the conviction. We affirm.

Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), the jury could have found the following. On November 28, 2012, two police officers in plain clothes were conducting surveillance in an unmarked car parked across the street from the Green Street subway station in the Jamaica Plain section of Boston. They observed a man, Neil Connolly, standing outside of the station. He looked around sporadically and rapidly in all directions, looked at passing traffic, paced in and out of the station, sometimes looked intently out of the windows of the station, made several quick telephone calls, and manipulated his cell phone in a manner consistent with text messaging. He received a telephone call and walked away from the station. One of the officers, Charles Moore, followed Connolly on foot; the other, Frank Colon, followed Connolly in the vehicle. Connolly stayed on the cell phone and continued looking around as he walked. As he walked down Oakdale Street, the officers saw a man later identified as the defendant walking in the opposite direction. Once Connolly saw the defendant, he hung up the cell phone and continued walking in his direction. Connolly and the defendant greeted each other, shook hands, and had a brief conversation. Connolly then reversed direction and started walking back toward the station, the direction in which the defendant had been walking, slightly behind him.

They walked together for a few blocks. Near the corner of Gordon Street and Elm Street, Colon testified that he saw Connolly hand the defendant an object. The defendant “received it with his right hand, looked at it, put it in his pocket, and when he withdrew his hand from his pocket he then handed something back to ․ Connolly.” Connolly received it, looked at it briefly, and put in his front right pants pocket. Connolly and the defendant separated without shaking hands or waving goodbye.

The police stopped Connolly and eventually searched him, finding two bags of tan powder in his front right pants pocket. The bags contained a combined 0.56 grams of heroin. A detective, who also had been conducting surveillance of the defendant and Connolly approached the defendant, ordered him to stop, read him his Miranda rights, and placed him under arrest. In searching the defendant during booking at the police station, the police found eighty dollars folded in the front pocket of the defendant's pants, and two cell phones.

Officer Robert England testified as an expert regarding drug distribution in Boston. He testified that the most common method of distribution is through a “delivery service.” He testified that after waiting for a seller, a buyer would have the drugs delivered to him by the seller. The buyer and the seller might walk around the block together. The transaction itself would take only seconds. He testified that heroin is often packaged in the corner of a baggie, twisted up, and that a single baggie could be forty or fifty dollars. He specified, “You're not buying it by the weight, you're buying it by the price.”

This evidence of Connolly's behavior, consistent with being a purchaser of drugs from a drug delivery service, his engaging in an apparent transaction with the defendant, his receipt of something from the defendant that he placed in the right front pocket of his pants, and the discovery of the heroin in that pocket, more than sufficed to support the defendant's conviction. The defendant points out that only one of the police officers testified to witnessing the transaction, but it was of course for the jury to assess that witness's credibility. The defendant also argues that the amount of money in his pocket was not consistent with the price of the amount of heroin found on Connolly, citing England's testimony that approximately one-half of one gram of heroin would cost approximately fifty dollars. We disagree, but even if it were, as the defendant suggests, more than the amount that would have been expected solely from the sale of the heroin found on Connolly, that does not render the evidence taken as a whole insufficient to support the conviction.

Judgment affirmed.