DocketNumber: No. 11-P-1568
Citation Numbers: 83 Mass. App. Ct. 406, 984 N.E.2d 861, 2013 WL 932186, 2013 Mass. App. LEXIS 42
Judges: Kafker
Filed Date: 3/13/2013
Status: Precedential
Modified Date: 10/18/2024
A judge of the Superior Court set aside jury verdicts on various drug offenses as well as a subsequent offender finding, concluding that there was insufficient evidence that the defendant constructively possessed the cocaine found in her apartment. On the Commonwealth’s appeal, we conclude that the evidence was sufficient to establish constructive possession. None of the other issues raised by the defendant in her cross appeal warrants disturbing the jury verdicts and finding. We therefore reverse the judge’s order and reinstate the jury verdicts, the subsequent offender finding, and the judgments.
1. Background. On February 1, 2008, the defendant was indicted for possession of cocaine with intent to distribute, second or subsequent offense, in violation of G. L. c. 94C, § 32A(c) and (d), and for doing so in a school zone, in violation of G. L. c. 94C, § 32J. She made a motion to suppress evidence, not currently before this court, which was denied. After obtaining new counsel, she moved to dismiss the indictment based on purportedly prejudicial evidence presented to the grand jury, and moved to suppress evidence for violation of the search warrant particularity requirement. Both motions were denied. After the jury returned guilty verdicts,
We summarize the evidence at trial in the light most favorable to the Commonwealth. See Commonwealth v. Escalera, 462 Mass. 636, 649 (2012), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On December 11, 2007, at approximately 10:00 p.m., officers from the Brockton police department and the State police executed a search warrant for an apartment on the third floor of 109 Green Street in Brockton. The officers knocked and announced themselves, and after five or ten seconds State Trooper Erik Telford forced the door open with a battering ram. Inside, the officers found the defendant on the living room couch and her codefendant, David Nelson,
The apartment was very small, consisting of a living room with a closet and kitchenette, a small hallway, one small bedroom, and a bathroom. The living room was approximately eight feet by twelve feet. In the living room were a couch, a coffee table about three feet long, a chair, an end table, and a television. The bedroom was smaller than the living room and contained a bed, a dresser, and plastic shelving. The apartment was cluttered, with trash and clothing, and in disarray.
Brockton police Detective Robert Diliddo found and seized two cellular telephones (phones) and a digital scale on the coffee table.
Officers also seized $110 in cash, in smaller denomination bills, from the bedroom; a box of Glad-brand plastic bags from the end table in the living room; and a BB gun from the living room closet. Telford observed women’s clothing, women’s perfume, and women’s lotions in the bedroom, but did not observe any men’s clothing there. At booking, both the defendant and Nelson gave 109 Green Street, apartment 3, as their address.
Brockton police Detective Thomas Keating testified as an expert for the Commonwealth, over the defendant’s objection. He testified that crack cocaine is frequently packaged in sandwich bags. Keating also testified that money found along with crack cocaine is indicative of drug distribution and may be the proceeds from drug sales. He found the discovery of a scale significant, stating, “I never saw an addict buy crack cocaine and weigh it unless they’re buying it to sell it.”
Neither codefendant testified. The defendant’s counsel argued chiefly that the drugs were not hers; Nelson’s defense was personal use.
2. Commonwealth’s appeal, a. Standard of review. The defendant asserts that we should defer to the trial judge’s ruling and review the trial judge’s allowance of the rule 25(b)(2) motion for abuse of discretion, citing Commonwealth v. Cobb, 399 Mass. 191, 192 (1987), and Commonwealth v. Woodward, 427 Mass. 659, 668 (1998). She misunderstands the context of Cobb and Woodward.
A rule 25(b)(2) motion may seek any or all of three forms of relief: a new trial, a finding of not guilty, or a reduction of the verdict to a lesser included offense. See Commonwealth v. Keough, 385 Mass. 314, 317-318 (1982).
However, a motion seeking a finding of not guilty due to insufficient evidence stands on different footing. The sufficiency of the evidence is a question of law because the judge must take the evidence in the light most favorable to the Commonwealth rather than weighing it independently. See Commonwealth v. Torres, 24 Mass. App. Ct. 317, 321-324 (1987); Commonwealth v. Walker, 68 Mass. App. Ct. 194, 197-198 (2007). See also Smith, Criminal Practice and Procedure § 36.21 (3d ed. 2007). Therefore, “the judge does not properly exercise discretion concerning the weight or integrity of the evidence, but instead must assess the legal sufficiency of the evidence by the standard set out in Commonwealth v. Latimore, 378 Mass. [at] 677.” Commonwealth v. Doucette, 408 Mass. 454, 456 (1990). We thus determine the legal question of sufficiency without deference to the trial judge’s ruling. See ibid.
b. Sufficiency of the evidence. As the cocaine was not found on the defendant’s person, she was tried on a theory of constructive possession.* **
In this case, the jury could reasonably infer the defendant’s awareness of the cocaine and ability and intent to exercise dominion and control over it. In the light most favorable to the Commonwealth, the evidence supported an inference of the defendant’s awareness of the cocaine. The cocaine was found on a table right in front of her. Although the table was cluttered, the cocaine was not concealed. See Boria, 440 Mass. at 417, 421 (presence where contraband was found permitted reason
The more difficult issue, then, is whether there was sufficient evidence of the defendant’s ability and intent to exercise dominion and control over the cocaine. As stated earlier, the cocaine was located on the table in front of her when officers entered the apartment. We also consider it significant that the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to establish that the defendant was the primary occupant of the apartment. See Brown, 34 Mass. App. Ct. at 225, 227 (“there was obviously sufficient evidence” to convict codefendant of possession of cocaine with intent to distribute because “[t]he apartment was [codefendant’s] place; it was full of his personal papers,” and he was “the person who controlled the apartment”). Cf. Commonwealth v. Charlton, supra at 303. The defendant here gave the apartment as her address at booking. See id. at 302-303. She was there at a late hour of the night in a state of undress. See Commonwealth v. Rodriquez, 16 Mass. App. Ct. 944, 945-946 (1983). Cf. Commonwealth v. Arias, 29 Mass. App. Ct. 613, 615, 619 (1990), S.C., 410 Mass. 1005 (1991). The sole bedroom contained only women’s items, and the police retrieved clothing for her from it, giving rise to a reasonable inference that it was hers. See Commonwealth v. Rarick, 23 Mass. App. Ct. at 913; Commonwealth v. Clarke, 44 Mass. App. Ct. at 505-506.
Finally, there was no evidence establishing that another person in the apartment, rather than the defendant, was the person
As for intent to distribute, there was sufficient evidence based on the quantity of the cocaine; the expert testimony regarding the differences between distributors and users of cocaine; and the presence of plastic bags, a cellular phone, a BB gun, and most particularly, a digital scale. We therefore reverse the order entering findings of not guilty.
a. Motion to dismiss. The defendant moved to dismiss the indictment on the basis that improper evidence was presented to the grand jury. See generally Commonwealth v. O’Dell, 392 Mass. 445 (1984). Specifically, Diliddo testified at the grand jury that the police were investigating drug sales at 109 Green Street, apartment 3, and that Telford had a confidential informant who knew that the defendant and Nelson were selling drugs at that apartment. The defendant contends that this information constituted prior bad acts and that it was irrelevant because she was not charged with distribution of drugs, only possession with intent to distribute. See Commonwealth v. Vinnie, 428 Mass. 161, 174-175, cert. denied, 525 U.S. 1007 (1998). However, this limited testimony was probative of the defendant’s intent to distribute, and the defendant has not shown that it was either false or misleading. See Commonwealth v. Brien, 19 Mass. App. Ct. 914, 914 (1984); Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 299 (2012). Cf. Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986). Seeking an indictment for possession with intent to distribute rather than distribution was within “the discretion of the prosecuting authority to decide what charge the government will bring.” Commonwealth v. Rose, 54 Mass. App. Ct. 919, 919 (2002). Cf. Commonwealth v. Gordon, 410 Mass. 498, 500-501 (1991). The motion to dismiss was properly denied.
b. Motion to suppress. The defendant argues that her motion to suppress based on the warrant particularity requirement should have been allowed. See generally Commonwealth v. Balicki, 436 Mass. 1, 7-8 (2002); G. L. c. 276, § 2. When he applied for the search warrant, Diliddo believed that there were three apartments at 109 Green Street, and therefore sought and secured a warrant for “109 Green St, Brockton Ma, third floor apartment.” In fact, there were nine apartments in that building, three on each floor. The warrant could therefore have been read as permitting a search of any of three apartments.
c. “Knock and announce” rule. After Telford testified at trial that he had waited five or ten seconds between announcing his presence and forcing the door open, the defendant made an objection based on the “knock and announce” rule, and now argues that suppression of the fruits of the search was warranted on this basis. See generally Commonwealth v. Santiago, 452 Mass. 573, 574-575 (2008). The defendant did not file a timely motion to suppress, and indeed never filed a motion to suppress on this basis. See Mass.R.Crim.P. 13(a), (d), as appearing in 442 Mass. 1517 (2004). She requested no specific relief from the trial judge.*
d. Expert testimony. Finally, the defendant argues that the trial judge erred in permitting Keating to testify beyond his expertise and vouch for his own credibility. The defendant filed a motion in limine to prevent Keating from testifying “that a theoretical drug ‘buyer’ would not purchase multiple bags of cocaine and instead purchase said substances in bulk,” relying on Commonwealth v. Little, 453 Mass. 766 (2009), which criticized an “imprecise economic argument” made by Keating as “likely beyond his expertise as a narcotics investigator.” Id. at 771. The trial judge allowed the motion to the extent that Keating’s testimony related to the behavior of hypothetical buyers rather than his own experiences and observations, but indicated she could not completely address the issue in the abstract. However, although the defendant objected to Keating’s qualification as an expert (which she does not contest on appeal), she did not object to any of the specific statements that she now challenges, and so we review Keating’s testimony for error creating a substantial risk of a miscarriage of justice. See id. at 770.
Keating testified that crack addicts usually do not keep money on their persons because they would spend it on more cocaine, and so the recovery of money suggests that it could be the proceeds from drug sales. He also testified that addicts would likely have drug paraphernalia around because they would consume the cocaine as soon as they got it, and he had never seen an addict weigh crack cocaine unless they were going to sell part of it. These statements were not objected to, and are
Finally, the defendant calls attention to a portion of Keating’s testimony where he described how prosecutors seek his opinion whether he would be prepared to take the stand to testify whether the drugs were for distribution or personal use, and that he would give them his opinion. Keating stated that if he opines that personal use is more likely, the prosecutor typically does not proceed with charges based on intent to distribute. He further indicated that he has only testified that a situation is not indicative of distribution five to ten times out of hundreds of times testifying as an expert in court. The defendant asserts that by this testimony, Keating was improperly vouching for his own credibility. Cf. Commonwealth v. Burgess, 450 Mass. 422, 436 (2008), quoting from Simon v. Solomon, 385 Mass. 91, 105 (1982). Although generally not an appropriate line of inquiry, in this instant case it was a fair response to Nelson’s pointed attack on Keating’s credibility as “the ultimate hired gun” trying to help out his colleagues, which Nelson’s counsel made during
4. Conclusion. There was sufficient evidence to support the defendant’s convictions, and no error requiring reversal of the judgments. The order allowing the defendant’s motion to set aside the verdicts and finding is reversed. The jury verdicts, the judge’s subsequent offender finding, and the judgments shall be reinstated.
So ordered.
The defendant was also convicted at a bench trial on the subsequent offense portion of the indictment.
Nelson’s case is not currently before us.
Diliddo noted that phones have evidentiary value because drug dealers often use them to communicate with their customers.
However, there was no evidence that paperwork bearing the defendant’s name was seized, or that she had a key to the apartment.
Rule 25(b)(2) states in part: “If a verdict of guilty is returned, the judge
The jury were also instructed on joint venture, and they returned general guilty verdicts. The defendant asserts that the conviction can only stand if the evidence was sufficient to convict her both as a principal and as a joint venturer. See Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 779 (2009),
Nelson, of course, was present in the apartment and found, like the defendant, near the drugs in the small apartment. His connections to the apartment, however, were less extensive. The fact that no men’s clothing was observed there suggests that he was not the primary occupant.
Of course, possession may be joint, and the Commonwealth need not exclude the possibility that others may also be in possession of the contraband. See Commonwealth v. Montanez, 410 Mass. 290, 306 (1991); Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 557 (1991); Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 240-241 (1997). But in Boria and Brown, the presence of other culpable individuals, combined with the lack of evidence showing the defendants’ connection to the drugs, made it unreasonable to impute possession to those defendants. Boria, 440 Mass. at 225-227. Brown, 34 Mass. App. Ct. at 419-421. Cf. Commonwealth v. Rivera, supra at 558; Commonwealth v. Cruz, 34 Mass. App. Ct. 619, 621-622 (1993).
See Commonwealth v. Cruz, 34 Mass. App. Ct. 619, 621-622 (1993) (strong evidence tied codefendant, but not defendant, to front bedroom where drugs were found); Commonwealth v. Clarke, 44 Mass. App. Ct. at 506-507 (evidence indicated someone else occupied second bedroom where shotgun was found).
UnIike some of the cases cited by the defendant, the warrant adequately specified the items to be seized, and was merely ambiguous as to the place to be searched. Contrast Commonwealth v. Forish, 61 Mass. App. Ct. 554, 557-561 (2004). Once the correct apartment was determined, the scope of the search was appropriately confined, and there was no prejudice to the defendant. Cf. Commonwealth v. Valerio, 449 Mass. 562, 566-572 (2007).
The defendant requested an opportunity to be heard further. The judge stated that the defendant could raise the issue again outside the hearing of the jury, but she never did.
The officers did not find a firearm in the apartment, but did find a loaded BB gun.
The defendant did object to the following testimony by Keating, which she did not reference in her brief: “For example, like I said, an 8-ball is 3.5 grams. You can purchase that for $150. If you buy a twenty, it’s only $20 and there’s only .2 grams. So you almost have to buy seventeen to eighteen twenties to equal an 8-ball. So you almost have to spend almost double the money if you’re buying twenties and forties than if you would just [buy] the 8-ball.” This testimony is partly cumulative of other statements by Keating and other witnesses. The defendant explored the issue on cross-examination and impeached Keating with a prior occasion on which he had received a discount when making an undercover purchase of multiple smaller bags of crack cocaine. We discern no abuse of discretion in overruling the objection, and no prejudice to the defendant. See Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457-458 (2006).
The one exception was struck on Nelson’s motion.