DocketNumber: No. 18-P-253
Citation Numbers: 121 N.E.3d 1205, 95 Mass. App. Ct. 265
Judges: Englander, Green, Shin
Filed Date: 5/8/2019
Status: Precedential
Modified Date: 7/24/2022
*265The defendant was convicted by a jury of possession of cocaine based on a theory of constructive possession, and the issue before us is the sufficiency of the proof. The cocaine was found in the glove compartment of a car in which the defendant was the driver and sole occupant, after the defendant was pulled over for a traffic violation. The car was not registered to the defendant, and the cocaine was viewed by the police officer only because, after he asked the defendant for his license and the vehicle registration, the defendant opened the glove compartment to look for the registration. The totality of the evidence was not sufficient to find that the defendant had previous knowledge of the cocaine beyond a reasonable doubt, and we accordingly reverse.
*266Background. Based on the evidence at trial, the jury could have reasonably found the following. In the early morning of September 18, 2016, the defendant was driving a Honda automobile on a street in Lowell. The Honda strayed into the opposite travel lane, almost striking a police vehicle being driven by Officer Jerome Moore. Officer Moore thereafter stopped the Honda and approached the defendant. Officer Moore testified as follows:
Q .: "Now, when you encountered the [d]efendant, did you ask him about the driving?"
A .: "I did."
Q .: "And what did he say?"
A .: "He said he didn't know what I was talking about, and that he had just replaced the axles in his car."
*1207Q .: "And did you ask him for his license or registration?"
A .: "I did."
Q .: "And what did he do when you asked him that?"
A .: "He opened up the glove box, to grab the registration."
Q .: "And while he was opening up the glove box, did you see anything in the glove box?"
A .: "Yes."
Q .: "And what was that?"
A .: "It was a bag, a fairly small bag of white powdery substance, sitting on the top of all the paperwork."
Q .: "And at that point, what did it appear to be?" ...
A .: "It appeared to be cocaine."
Q .: "And after you saw that bag, did you ask the [d]efendant about it?"
A .: "I -- I did."
Q .: "And what did he say?"
A .: "He didn't say anything. He started putting papers over it, so I couldn't see it."
Q .: "And at this point, what did you do?"
*267A .: "I -- I ordered him out of the vehicle."
Subsequent searches of the Honda also revealed a digital scale and an unfired nine millimeter round in the glove compartment, and a nine millimeter pistol located under the passenger seat.
On cross-examination Officer Moore testified that the defendant pulled over without incident, that the defendant complied with his instructions, and that the defendant did not appear agitated or "to be concealing anything." The officer also confirmed that he did not ask the defendant to open the glove compartment, but rather the defendant did so "in response to [the officer's] question to produce the registration."
The car was not registered to the defendant, but to one Francesca Rosario, who resided on "Pine Street," presumably in Lowell. The defendant had a different address, on Cork Street. The prosecution introduced no additional evidence that linked the defendant to any of the items in the car.
The defendant was arrested and charged with carrying a firearm without a license, possession of ammunition without a firearm identification card, and possession of a class B drug with intent to distribute.
Discussion. The test for sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact *1208could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore,
As the cases recognize, a sufficiency of the evidence evaluation for constructive possession is necessarily fact-specific, and turns on the totality of the evidence. Albano,
In this case the Commonwealth cites three particular aspects of the evidence: first, the defendant was the driver and sole occupant of the car; second, the defendant stated that he had just replaced the axles in "his" car; and third, after the officer asked about the bag of "white powdery substance" in the glove compartment, the defendant acted evasively by trying to cover the bag with papers.
Under the case law, this evidence does not suffice to establish constructive possession.
*1209First, the fact that the defendant was the driver and sole occupant of a car in which contraband was found, where the contraband was not in plain view, is not by itself sufficient. Almeida,
The Commonwealth suggests that in this case the calculus is different, because unlike in Almeida, here the defendant indicated that he was the "owner" and "caretaker" of the car. We do not find the distinction persuasive here. The car was not registered to the defendant, but to a woman with a different address than his, and as to whom there was no evidence of any connection. As a factual matter, the Commonwealth rests its ownership or caretaker contention entirely on Officer Moore's testimony that when first pulled over, the defendant stated that he had just replaced the axles in "his" car. But while the defendant's replacement of the axles on the car may show that his connection to the car was more than transient, it falls short of showing the sort of exclusive or primary control that would warrant a conclusion that he necessarily had knowledge of the contents of the glove compartment. This is especially so given the presence of car seats and a child's toy, and the absence of evidence that the defendant had children.
The only additional fact the Commonwealth can rely on is the defendant's effort to conceal the bag of cocaine under some papers, after the defendant opened the glove compartment and after Officer Moore asked him about the bag. The Commonwealth urges that this is "evasive behavior" of the type relied on in the cases as a sufficient plus factor, but we do not agree. Here the defendant's actions did not provide sufficient evidence of knowledge of the cocaine in advance of when the cocaine was revealed by opening the glove compartment. To the contrary, there was no evidence of any action by the defendant that showed knowledge in advance -- no agitation, no furtiveness, and no effort to conceal. Notably, it was the defendant himself who exposed the cocaine by choosing to look in the glove compartment -- he was not directed to do so. In these circumstances we do not think the defendant's action in attempting to cover the cocaine *1210with paper, after the officer pointed it out, suffices to tip the scales. The defendant reacted to seeing the cocaine at the same time the officer did; the defendant's actions in these circumstances do not give rise to a reasonable inference, sufficient to support guilt beyond a reasonable doubt, that the defendant had knowledge of the cocaine beforehand.
Our conclusion in this regard is bolstered by the court's reasoning in Alicea. There the defendant also was the sole occupant of a car that did not belong to him, and he was stopped for a traffic violation. Alicea,
*271On these facts the Alicea court first noted that the defendant's behavior after the trooper found the package and showed it to him, although "relevant," would not have been sufficient evidence to establish constructive possession: "[w]e find little support for a finding that the defendant knew of the concealed heroin from ... his reaction when the first trooper showed the package to him." Alicea, at 387,
This case is not Alicea, as it lacks any evidence of "agitation" or "change in demeanor" before the drugs were located. Id. at 387-388,
The conviction of possession of cocaine must be reversed. We are not unmindful that the jury reached a contrary conclusion, but it is inherent in a sufficiency of the evidence review that, on rare occasions, a jury verdict will be set aside. Jackson,
Accordingly, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
So ordered.
The Commonwealth does not suggest that the pistol was in plain view. It was discovered during the inventory search of the car.
The Commonwealth points out that, after the officer advised the defendant that he would be charged with drug trafficking, the defendant swore at the officer. We do not consider this evidence probative of the possession charge.
As we have observed, the evidence indicated that the defendant did not own the car, as it was registered to someone else. Moreover, even if the defendant had used a possessive pronoun to describe the car (e.g., "my car"), such a statement still would have been ambiguous, in context, as to whether the defendant was stating that he owned the car, or merely that he was driving it.
We do not mean to imply that any and all actions by the defendant after contraband is identified would be insufficient to establish constructive possession. Each set of facts must be reviewed in totality. Certainly some post-discovery conduct -- such as flight or false statements -- could be highly relevant evidence of guilt. Commonwealth v. Sabetti,