COMMONWEALTH v. GASKINS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a Superior Court jury trial, the defendant was convicted of unlawful distribution of cocaine in violation of G. L. c. 94C, § 32A (a). On appeal, he challenges the denial of his motion for a required finding of not guilty. The defendant also claims that the judge erred in denying his motion to dismiss the indictment as a sanction for the destruction of potentially exculpatory evidence. We affirm.

Background. Because the defendant challenges the sufficiency of the evidence, we summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Tavares, 471 Mass. 430, 431 (2015). On August 2, 2017, at approximately 9:15 p.m., a plainclothes Springfield police officer was conducting surveillance of the area around Fort Pleasant Avenue in Springfield. This neighborhood was known to the police as an area with “a lot of drug activity.” The officer's unmarked police cruiser was parked across the street from an apartment building on Fort Pleasant Avenue. A streetlight at the end of the block and light from the interior of neighboring buildings somewhat illuminated the area. The officer had the windows of his cruiser lowered in order to observe the people entering and leaving the building, and his vision was aided by high-powered, low-light binoculars.

From this position, the officer saw the defendant leave the foyer of the apartment building and walk to the sidewalk. The defendant removed a light-colored item from his pocket and manipulated it with his fingers. A man, later identified as Jonathan Strange, approached the defendant. The two men spoke with one another, and the defendant handed something to Strange. After inspecting what he had been handed, Strange then handed something back to the defendant. The entire interaction between Strange and the defendant took fifteen to twenty seconds.²

After Strange walked away, the officer radioed to support officers and directed them to approach Strange. Less than thirty seconds later, uniformed officers stopped Strange and searched him, finding a rock of “crack” cocaine inside a hard plastic cigarette case in his shorts pocket. The uniformed officers communicated this discovery to the officer conducting surveillance, who continued to monitor the defendant as the defendant returned to the foyer of the building. At that point, because the foyer was well lit, the officer identified the light-colored item the defendant had removed from his pocket as a plastic bag. The defendant remained in the building for five minutes, and then came out, walking north on Fort Pleasant Avenue. The officer directed other support officers to place the defendant under arrest. The arresting officers discovered forty-four dollars on the defendant's person.

Discussion. 1. Sufficiency of the evidence. The defendant contends that the Commonwealth presented insufficient evidence to prove beyond a reasonable doubt that he distributed cocaine. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Commonwealth v. Summers, 93 Mass. App. Ct. 260, 262 (2018), quoting Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999). Rather, the relevant “question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (quotation and citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

In distribution cases such as this one, where there is no direct evidence that narcotics were exchanged, we bear in mind that guilt may be established by circumstantial evidence “and that the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable.’ ” Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting Commonwealth v. Longo, 402 Mass. 482, 487 (1988). “[In] certain situations, an illegal drug transaction may be inferred from other circumstances even if what is transferred is not actually seen.” Commonwealth v. Soto, 45 Mass. App. Ct. 109, 112 (1998).

The present case is such a situation. The jury could reasonably infer that the defendant and Strange had engaged in a hand-to-hand drug transaction based on the circumstances surrounding their encounter. Their meeting was brief; immediately after exchanging the items in their hands, the two men separated. Moments later, police recovered cocaine from Strange and cash from the defendant. See Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471 (2018) (indicators of drug transactions include brevity of meeting between suspects, discovery of drugs on alleged buyer, and money found on alleged seller). Additionally, the jury could consider the prior brief interactions between the defendant and others, see note 1, supra, as well as the fact that the neighborhood was known to be one with “a lot of drug activity.” See Commonwealth v. Rivera, 425 Mass. 633, 648-649 (1997).

The defendant contends that the evidence was insufficient, and that “[i]t takes a leap of conjecture to conclude that [the defendant] sold ․ cocaine to Strange.” The defendant points out that no one saw Strange place the cocaine in the cigarette case; that there was no testimony that Strange had no money on his person; and that the relatively small amount of cash on the defendant's person was not shown to relate in any way to the amount or value of the cocaine found on Strange. However, the Commonwealth “need not exclude every hypothesis” in proving its case. Soto, 45 Mass. App. Ct. at 112. “The inferences that the defendant sold the drugs need not be necessary or inescapable so long as it is reasonable and possible” (quotation omitted). Id.

This is not a case where “ ‘choosing among the possible inferences from the evidence presented’ would require a jury ‘to employ conjecture.’ ” Commonwealth v. Tavares, 484 Mass. 650, 655 (2020), quoting Commonwealth v. Croft, 345 Mass. 143, 145 (1962). Contrast Commonwealth v. Rodriguez, 456 Mass. 578, 582-583 (2010) (where defendant and his companion were both arrested with drugs in their possession after unseen interaction with third person, inference that defendant -- rather than third person -- distributed drugs to companion required conjecture); Commonwealth v. Senati, 3 Mass. App. Ct. 304, 306 (1975) (where, after brief meeting, defendant and another person threw drugs to ground upon police approach, and both had cash in their possession, evidence was inconclusive as to which one was seller). Although the record evidence here was concededly slim, we conclude that it was nonetheless sufficient to go to the jury.

2. Lost or destroyed evidence. On September 6, 2018, the defendant filed a motion to borrow the binoculars used during the surveillance of Fort Pleasant Avenue so that the defense investigators could view the scene as it would have been seen by the officer on the night of the arrest. Although the defendant's investigators had visited the scene and taken photographs of the building and sidewalk, the defense wanted to recreate the view as seen at night with the benefit of the low-light binoculars. The motion was allowed on the same day, and an order issued directing the parties to agree upon a date and time for the defendant's investigators to borrow the binoculars.

The following day, September 7, 2018, the Springfield city forester received a request from the police department to perform tree work on the trees outside the Fort Pleasant Avenue apartment building. In mid-September 2018, the city forester performed the work, trimming back one tree and removing another entirely. Thus, when the defense investigators returned to Fort Pleasant Avenue in October 2018 with the binoculars, they were no longer able to simulate the officer's viewpoint with the use of the binoculars. The investigators took photographs and videos documenting the change, but the decrease in tree cover had altered the lighting conditions around the apartment building. As a result, the defendant filed a motion to dismiss the indictment as a sanction for failing to preserve potentially exculpatory evidence.

On appeal, the defendant claims that the judge erred in denying the motion and that the remedy fashioned by the judge in lieu of dismissal was inadequate to protect his rights. When evidence is lost or destroyed, the defendant bears the initial burden of establishing “a reasonable possibility that the lost or destroyed evidence was in fact exculpatory.” Commonwealth v. Kee, 449 Mass. 550, 554 (2007). If such burden is met, the judge balances “the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant” to determine an appropriate remedy. Id. at 555. “In reviewing the denial of a motion based on the Commonwealth's loss [or destruction] of allegedly exculpatory evidence, we do not disturb the judge's decision absent a clear abuse of discretion.” Id. at 554. See Commonwealth v. Heath, 89 Mass. App. Ct. 328, 339 (2016).

Without making specific findings concerning the exculpatory nature of the lost evidence, the judge determined that there was “some level of culpability on the part of the Commonwealth for the tree cutting,” but not such that the defendant had suffered “irremediable harm.” Specifically, the judge found that because the defendant had photographs and video recordings of the scene both before and after the tree work, the defendant could still make a “plausible argument” that the officer's view was too obstructed to clearly observe the defendant. Defense counsel called the city forester as a witness at trial, making it clear to the jury that the police department had initiated the tree work. See Commonwealth v. Dinkins, 440 Mass. 715, 719 (2004) (testimony that evidence was lost gave defendant “opportunity to plant ․ seeds of doubt in the minds of the jury”). Moreover, the judge instructed the jurors that they could draw an adverse inference against the Commonwealth if they found the explanation for the tree work unsatisfactory. See Kee, 449 Mass. at 557.

We agree with the judge that the defendant was not unduly hampered in pursuing his theory, that the officers could not have observed what they claimed, due to the availability of photographic and video evidence both before and after the tree cutting, and that therefore, dismissal was unwarranted. See Commonwealth v. Perito, 417 Mass. 674, 681 (1994), quoting Commonwealth v. Cinelli, 389 Mass. 197, 219, cert. denied, 464 U.S. 860 (1983) (“Dismissal of indictments is a drastic remedy for official misconduct”). Moreover, the judge's remedy, allowing the defendant to present evidence of the police involvement in the timing of the tree work and crafting jury instructions that addressed the issue, was a reasonable remedy designed to protect the defendant's rights. See Commonwealth v. Harwood, 432 Mass. 290, 302 (2000) (“Absent a clear abuse of discretion, we will not disturb the judge's decision concerning an appropriate remedy” for lost or destroyed evidence).

Judgment affirmed.

FOOTNOTES

2.   The officer testified that he had participated in well over 1,500 drug-related arrests and that the vast majority of them involved hand-to-hand drug transactions. He described a hand-to-hand drug transaction as one where the customer approaches a drug dealer, has a “brief conversation,” and “items are exchanged [in a] quick interaction.” He also testified to having observed the defendant engage in two other quick interactions prior to the interaction with Strange. The night before, the officer observed the defendant in the foyer of his building facing a woman and saw hand movements between the two of them. And the following day, just prior to the incident with Strange, the officer again observed in the foyer the defendant facing a woman and the two engaging in hand movements with each other.