Commonwealth v. Robert L. Adams.

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

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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

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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

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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

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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

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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.

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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.

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