NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-131
COMMONWEALTH
vs.
ROBERT L. ADAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Robert L. Adams, pleaded guilty in District
Court to possession with intent to distribute a class A
substance, G. L. c. 94C, § 32 (a), and possession with intent to
distribute a class B substance, G. L. c. 94C, § 32A (a). The
plea judge imposed one-year concurrent sentences, suspended for
one year. On January 11, 2023, a notice of probation violation
issued, charging the defendant with distribution of a class B
substance, subsequent offense, in violation of G. L. c. 94C,
§ 32A (b). After a hearing on March 27, 2023, a second judge
(hearing judge) found the defendant in violation and revoked his
probation. We affirm. 1. Proof of the probation violation. The defendant claims
that the hearing judge abused his discretion in finding the
defendant in violation of his probation because there was
insufficient evidence to show that the defendant distributed
cocaine. "The Commonwealth must prove a violation of probation
by a preponderance of the evidence." Commonwealth v. Bukin, 467
Mass. 516, 520 (2014). "A determination whether a violation of
probation has occurred lies within the discretion of the hearing
judge." Id. at 519-520. We review an order revoking probation
for abuse of discretion to determine "whether the record
discloses sufficient reliable evidence to warrant the findings
by the judge that [the defendant] had violated the specified
conditions of his probation." Commonwealth v. Morse, 50 Mass.
App. Ct. 582, 594 (2000). Accord Commonwealth v. Jarrett, 491
Mass. 437, 440 (2023).
Here, the Commonwealth presented sufficient evidence that
the defendant committed the offense of distribution of a class B
substance, in violation of G. L. c. 94C, § 32A (a). "To
establish a probation violation based on a criminal offense, the
Commonwealth must prove each element of the offense by a
preponderance of the evidence." Commonwealth v. Gelin, 494
Mass. 777, 784 (2024). To prove distribution of a class B
substance, the Commonwealth must prove: (1) the identity of the
2 substance in question as a controlled substance, cocaine;
(2) distribution by the defendant; and (3) that the defendant
distributed the controlled substance knowingly or
intentionally." Commonwealth v. Ortiz, 466 Mass. 475, 480
(2013).
At the probation revocation hearing, a member of the Quincy
police department's drug control unit testified that, while
driving an unmarked vehicle on the evening of January 5, 2023,
he began to surveil a black Lexus owned by a person with a
history of drug crimes. After notifying other members of the
drug control unit, the officer watched the driver manipulate a
cell phone and pull into a parking lot. The officer then
watched a man, later identified as the defendant, walk to the
driver-side window of the Lexus, reach into the window, and pull
his hand out. The officer got out of his vehicle and approached
the defendant, whom he recognized from an earlier investigation
for cocaine distribution in which cocaine and fentanyl were
recovered from the defendant. This time, after the officer
introduced himself, the defendant opened his jacket and said, "I
don't have anything on me. You can search me." After the
officer asked his colleagues by radio to stop the Lexus, he
received a transmission that they had recovered from its driver
a plastic bag containing a white rock-like substance. The
3 officer searched the defendant and found two separate folds of
cash, one containing $150 and the other $1600. At the drug unit
office, the officer examined the plastic bag and determined that
its contents were consistent with $150 worth of cocaine. He was
present as another officer field-tested the contents of the
plastic bag and found the presumptive presence of cocaine. The
State police crime laboratory later certified that the bag
contained 1.52 grams of cocaine.
This evidence was sufficient to support a determination, by
a preponderance of the evidence, that the defendant knowingly
distributed cocaine. See Jarrett, 491 Mass. at 445. Although
the officer did not see an exchange of money for drugs, he had a
reasonable belief, based on his training and experience in the
drug control unit, that he witnessed a street-level drug
transaction. See, e.g., Commonwealth v. Sanders, 90 Mass. App.
Ct. 660, 662-663 (2016) (crediting officer's testimony about "a
common method of selling drugs . . . in the form of 'car meets,'
wherein a buyer would arrive via a vehicle, use a cellular
telephone (cell phone) to contact a seller, and then arrange an
in-person transaction at the vehicle"). The subsequent recovery
of a plastic bag containing cocaine from the driver and two
folds of cash from the defendant provided additional evidence
that a drug transaction had occurred. The officer also
4 testified, based on his training and experience, that the fold
of $150 in cash found on the defendant was equivalent to the
value of the cocaine seized from the driver. See, e.g.,
Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 177-179 (2009)
(where officer testified that cocaine was commonly sold in
twenty-dollar denominations, twenty-dollar bill found in one of
defendant's pockets and large amount of cash in another was
sufficient circumstantial evidence that defendant sold cocaine
even though "no witness observed a hand-to-hand drug transfer").
Accordingly, the hearing judge did not abuse his discretion in
concluding that the defendant violated his probation by
distributing a class B substance on January 5, 2023.
2. Reliance on limited hearsay testimony. The defendant
contends that the hearing judge erred in allowing the officer to
testify about what the other members of the drug control unit
recovered from the driver of the Lexus. After the prosecutor
asked the officer "what, if anything, occurred" after the driver
was stopped, the defendant objected on hearsay grounds. The
judge allowed the officer to provide limited testimony about
what he learned by radio transmission, stating, "don't forget,
this is probation surrender, so there's a little bit more leeway
here." The officer testified that he learned that the officers
5 recovered the plastic bag; the judge did not allow him to
testify about what the driver told the officers.
Although "standard evidentiary rules do not apply to
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-131
COMMONWEALTH
vs.
ROBERT L. ADAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Robert L. Adams, pleaded guilty in District
Court to possession with intent to distribute a class A
substance, G. L. c. 94C, § 32 (a), and possession with intent to
distribute a class B substance, G. L. c. 94C, § 32A (a). The
plea judge imposed one-year concurrent sentences, suspended for
one year. On January 11, 2023, a notice of probation violation
issued, charging the defendant with distribution of a class B
substance, subsequent offense, in violation of G. L. c. 94C,
§ 32A (b). After a hearing on March 27, 2023, a second judge
(hearing judge) found the defendant in violation and revoked his
probation. We affirm. 1. Proof of the probation violation. The defendant claims
that the hearing judge abused his discretion in finding the
defendant in violation of his probation because there was
insufficient evidence to show that the defendant distributed
cocaine. "The Commonwealth must prove a violation of probation
by a preponderance of the evidence." Commonwealth v. Bukin, 467
Mass. 516, 520 (2014). "A determination whether a violation of
probation has occurred lies within the discretion of the hearing
judge." Id. at 519-520. We review an order revoking probation
for abuse of discretion to determine "whether the record
discloses sufficient reliable evidence to warrant the findings
by the judge that [the defendant] had violated the specified
conditions of his probation." Commonwealth v. Morse, 50 Mass.
App. Ct. 582, 594 (2000). Accord Commonwealth v. Jarrett, 491
Mass. 437, 440 (2023).
Here, the Commonwealth presented sufficient evidence that
the defendant committed the offense of distribution of a class B
substance, in violation of G. L. c. 94C, § 32A (a). "To
establish a probation violation based on a criminal offense, the
Commonwealth must prove each element of the offense by a
preponderance of the evidence." Commonwealth v. Gelin, 494
Mass. 777, 784 (2024). To prove distribution of a class B
substance, the Commonwealth must prove: (1) the identity of the
2 substance in question as a controlled substance, cocaine;
(2) distribution by the defendant; and (3) that the defendant
distributed the controlled substance knowingly or
intentionally." Commonwealth v. Ortiz, 466 Mass. 475, 480
(2013).
At the probation revocation hearing, a member of the Quincy
police department's drug control unit testified that, while
driving an unmarked vehicle on the evening of January 5, 2023,
he began to surveil a black Lexus owned by a person with a
history of drug crimes. After notifying other members of the
drug control unit, the officer watched the driver manipulate a
cell phone and pull into a parking lot. The officer then
watched a man, later identified as the defendant, walk to the
driver-side window of the Lexus, reach into the window, and pull
his hand out. The officer got out of his vehicle and approached
the defendant, whom he recognized from an earlier investigation
for cocaine distribution in which cocaine and fentanyl were
recovered from the defendant. This time, after the officer
introduced himself, the defendant opened his jacket and said, "I
don't have anything on me. You can search me." After the
officer asked his colleagues by radio to stop the Lexus, he
received a transmission that they had recovered from its driver
a plastic bag containing a white rock-like substance. The
3 officer searched the defendant and found two separate folds of
cash, one containing $150 and the other $1600. At the drug unit
office, the officer examined the plastic bag and determined that
its contents were consistent with $150 worth of cocaine. He was
present as another officer field-tested the contents of the
plastic bag and found the presumptive presence of cocaine. The
State police crime laboratory later certified that the bag
contained 1.52 grams of cocaine.
This evidence was sufficient to support a determination, by
a preponderance of the evidence, that the defendant knowingly
distributed cocaine. See Jarrett, 491 Mass. at 445. Although
the officer did not see an exchange of money for drugs, he had a
reasonable belief, based on his training and experience in the
drug control unit, that he witnessed a street-level drug
transaction. See, e.g., Commonwealth v. Sanders, 90 Mass. App.
Ct. 660, 662-663 (2016) (crediting officer's testimony about "a
common method of selling drugs . . . in the form of 'car meets,'
wherein a buyer would arrive via a vehicle, use a cellular
telephone (cell phone) to contact a seller, and then arrange an
in-person transaction at the vehicle"). The subsequent recovery
of a plastic bag containing cocaine from the driver and two
folds of cash from the defendant provided additional evidence
that a drug transaction had occurred. The officer also
4 testified, based on his training and experience, that the fold
of $150 in cash found on the defendant was equivalent to the
value of the cocaine seized from the driver. See, e.g.,
Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 177-179 (2009)
(where officer testified that cocaine was commonly sold in
twenty-dollar denominations, twenty-dollar bill found in one of
defendant's pockets and large amount of cash in another was
sufficient circumstantial evidence that defendant sold cocaine
even though "no witness observed a hand-to-hand drug transfer").
Accordingly, the hearing judge did not abuse his discretion in
concluding that the defendant violated his probation by
distributing a class B substance on January 5, 2023.
2. Reliance on limited hearsay testimony. The defendant
contends that the hearing judge erred in allowing the officer to
testify about what the other members of the drug control unit
recovered from the driver of the Lexus. After the prosecutor
asked the officer "what, if anything, occurred" after the driver
was stopped, the defendant objected on hearsay grounds. The
judge allowed the officer to provide limited testimony about
what he learned by radio transmission, stating, "don't forget,
this is probation surrender, so there's a little bit more leeway
here." The officer testified that he learned that the officers
5 recovered the plastic bag; the judge did not allow him to
testify about what the driver told the officers.
Although "standard evidentiary rules do not apply to
probation revocation hearings," a finding of a probation
violation must be based on reliable evidence. Commonwealth v.
Durling, 407 Mass. 108, 117 (1990). "A judge may rely on
hearsay evidence at a probation violation hearing where the
evidence has substantial indicia of reliability." Commonwealth
v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019). In assessing
whether hearsay is substantially reliable, the judge may
consider:
"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."
Commonwealth v. Costa, 490 Mass. 118, 124 (2022), quoting
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). "There is
no requirement that hearsay satisfy all the above criteria to be
trustworthy and reliable." Commonwealth v. Patton, 458 Mass.
119, 133 (2010).
When a "judge relies on hearsay evidence in finding a
violation of probation, the judge should set forth in writing or
6 on the record why the judge found the hearsay evidence to be
reliable." Hartfield, 474 Mass. at 485. See Commonwealth v.
Grant G., 96 Mass. App. Ct. 721, 725 (2019); Rules 6(c) and 7 of
the District/Municipal Court Rules for Probation Violation
Proceedings (2015). Here, the judge did not make an explicit
determination of reliability with respect to this particular
testimony, which would have been the better practice.
Nevertheless, we can infer an implicit determination based on
his explanation that "this is a probation surrender," as well as
his rulings limiting the officer's testimony to what was
recovered from the driver. See Commonwealth v. Nunez, 446 Mass.
54, 59 & n.6 (2006) (statement that "[t]his is a probation
surrender hearing" can be interpreted as "an implicit
determination that the hearsay is reliable," even though it is
advisable "for such a finding to be stated on the record").
The admission of this testimony did not violate the
defendant's due process rights. See Costa, 490 Mass. at 126.
Most of the officer's testimony was based on his personal
knowledge and direct observation, but he also testified that he
was in radio contact with the other members of the drug control
unit. The limited hearsay testimony allowed by the judge
concerned a specific fact within the other officers' personal
knowledge -- their recovery of the plastic bag from the driver.
7 This fact was supported by other unobjected-to details about the
stop of the Lexus, including the location of the stop and the
identity of the driver. That the plastic bag contained a white
rock-like substance was corroborated by the officer's testimony
that he personally examined the bag at the drug unit office,
believed it was consistent with $150 worth of cocaine, and
watched as another officer conducted a field test that found the
presence of cocaine. Accordingly, even though the judge should
have stated in writing or on the record why he found this
limited hearsay testimony to be reliable, Hartfield, 474 Mass.
at 485, he did not err or abuse his discretion in allowing the
testimony or in determining that a probation violation occurred.
See Bukin, 467 Mass. at 520-521.
Order revoking probation and imposing sentence affirmed.
By the Court (Henry, Smyth & Toone, JJ.1),
Clerk
Entered: April 16, 2025.
1 The panelists are listed in order of seniority.