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Appeals Court of Massachusetts.



Decided: March 22, 2021

By the Court (Green, C.J., Desmond & Lemire, JJ.1)


A Superior Court jury convicted the defendant, Adrian Garcia, of trafficking in cocaine, eighteen to thirty-six grams, in violation of G. L. c. 94C, § 32E (b), and possession with intent to distribute a class B substance, fentanyl, in violation of G. L. c. 94C, § 32A (a). The defendant appeals, claiming that (1) testimony from a booking officer violated his Federal and State constitutional rights against self-incrimination; and (2) the evidence was insufficient to prove that he intended to distribute fentanyl. We affirm.

Background. The jury reasonably could have found that between the late evening of December 23 and early morning of December 24, 2016, the defendant was drinking at the Brahmin, a restaurant and bar located in the Back Bay section of Boston (bar). He purchased numerous drinks for himself and other bar patrons throughout the evening. At one point, the defendant asked his waitress if she would like to be tipped in cash or in cocaine. The waitress stated that she wanted cash, and informed management about what had happened.

Around 1 a.m., the bar's general manager Paul McAvoy and assistant general manager Paul Reardon reported to the front of the bar because the defendant, who was being asked to leave, wanted to speak with the general manager. The defendant told McAvoy that he felt he was being “asked to leave for an unjust reason.” McAvoy told the defendant that he had to leave the premises or he would call the police. Once outside, the defendant began yelling at McAvoy and Reardon. The defendant then called the police himself while asking McAvoy for the name and address of the bar.

McAvoy began videotaping the defendant on a cell phone. He observed the defendant throw a white package wrapped in plastic wrap underneath a van, and when the police arrived, he directed officers to the package. Boston Police Officer Eliot Telisnor retrieved the package, and the defendant was subsequently placed under arrest.

At the station, the defendant acted erratically during the booking process. He was uncooperative when police tried to take his photograph and fingerprints. In response to the standard set of booking questions asked by Officer Ismael Almeida, the defendant declined to answer whether he went to school or was employed. A search of the defendant resulted in the recovery of $1,300 in loose cash and a cell phone from his person.

Forensic testing confirmed that the package recovered from underneath the van contained 35.21 grams of cocaine and fifteen fentanyl pills marked as oxycodone. Sergeant Detective William Feeney opined that the amount of contraband found in the package combined with the cash and cell phone recovered from the defendant during booking was consistent with an intent to distribute rather than personal use. We will set forth additional facts as necessary.

Discussion. 1. Booking question testimony. The defendant first claims that testimony by Officer Almeida relating to his refusal to answer a booking question violated his constitutional rights against self-incrimination.2 We disagree.

It is axiomatic that a defendant's postarrest silence may not be used against him. Commonwealth v. Ye, 52 Mass. App. Ct. 390, 396, S.C., 441 Mass. 1010 (2001). The defendant challenges the following portion of Officer Almeida's direct examination:

Q.: “Did you go through the standard set of questions with [the defendant] to obtain some -- the biographical information, pursuant to the standard booking procedure?”

A.: “The best -- as best I could.”

Q.: “Okay. And why is that?”

A.: “[The defendant's] behavior I would call erratic at best.”

Q.: “Okay. Did you try to ask him about the question about whether or not he went to school or was employed?”

A.: “Yes.”

Q.: “Did you get an answer?”

A.: “No.”

Q.: “Okay. So he didn't affirmatively tell you that he had a job?”

A.: “No, he was -- he was all over the place.”

The defendant argues that this testimony improperly swayed the jury into believing that the cash found on his person came from drug dealing. Assuming, without deciding, that this testimony was improper, see Commonwealth v. Woods, 419 Mass. 366, 373-374 (1995), no harm or substantial risk of a miscarriage of justice resulted from its admission. “As the reviewing court, we must assess the record as a whole to determine the probable impact of the improper comments and evidence on the jury.” Commonwealth v. Mahdi, 388 Mass. 679, 696 (1983). Looking at the record as a whole, the fleeting reference to the defendant's employment status was “not likely to influence, or even to seize the attention of the jury.” Commonwealth v. Cunneen, 389 Mass. 216, 224 (1983). Reading the testimony in context, it was presented as evidence of the defendant's erratic behavior during the booking process instead of evidence that he obtained money through drug dealing. The testimony was not referenced again at trial,3 and the Commonwealth's case was quite strong. Under these circumstances, a new trial is not required. See Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 23-24 (1991) (officer's testimony that defendant “refused to answer ․ any questions” during booking and reference to defendant's prior arrest record, while improper, did not require new trial).

2. Sufficiency of the evidence. The defendant also claims that the judge erroneously denied his motion for a required finding of not guilty because the evidence was insufficient to prove that he intended to distribute the fifteen fentanyl pills. We disagree.

“When reviewing the denial of a motion for a required finding of not guilty, ‘we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Ross, supra, quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).

The defendant focuses his argument on whether the Commonwealth proved his intention to distribute the fentanyl pills. “A person's ․ intent ․ is a matter of fact, which may not be susceptible of proof by direct evidence.” Commonwealth v. Richardson, 479 Mass. 344, 360 (2018), quoting Commonwealth v. Ellis, 356 Mass. 574, 578-579 (1970). Factors relevant to proving intent to distribute include the amount of money found on the defendant's person, the amount of drugs recovered, the manner in which the drugs are packaged, and opinion testimony from an expert witness. See Commonwealth v. Sepheus, 468 Mass. 160, 164-169 (2014).

In the light most favorable to the Commonwealth, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant intended to distribute the fentanyl pills. The defendant offered to tip his waitress in cocaine instead of cash, evidencing a willingness to distribute other contraband in his possession. He possessed fifteen fentanyl pills marked as oxycodone, which, according to Sergeant Detective Feeney, was consistent with an intent to distribute because a personal user would ordinarily purchase between three and six pills. See Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457 (2006). The pills were packaged together with more than thirty-five grams of cocaine. The defendant possessed a cell phone and $1,300 in loose cash. See Sepheus, 468 Mass. at 166. Finally, Reardon testified that once the defendant left the bar, he exclaimed that he was part of a “cartel” and “that police wouldn't pick him up because he didn't have any finger prints.” See Commonwealth v. Ridge, 37 Mass. App. Ct. 943, 945 (1994) (defendant's comments probative of intent to distribute). Considering the record as a whole, we conclude that the evidence of intent to distribute was sufficient.

Judgments affirmed.


2.   The parties dispute the standard by which we review this claim -- harmless error or substantial risk of a miscarriage of justice. Under either standard, however, we conclude that the result would be the same.

3.   During closing argument, defense counsel explained to the jury that no evidence was presented as to where the cash found on the defendant came from or the denominations of the bills.

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