Opinion
16-P-226
04-10-2017
COMMONWEALTH v. Harvest B. CICCOTELLI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a District Court jury of possession of a class A substance, arguing that evidence of his possession was insufficient. We affirm.
The defendant also was found responsible for speeding, but he makes no argument on appeal regarding this disposition.
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Background. Based on the evidence at trial, the jury could have found the following facts. On August 26, 2013, Marion police Officer Daryl Lawrence observed a vehicle traveling fifty-five miles per hour in a forty mile per hour zone. Lawrence activated the blue lights on his cruiser and followed the vehicle as it gained speed and entered Interstate 195. Once Lawrence was behind the car, he activated his siren. The vehicle moved into the passing lane and Lawrence activated the siren again. The vehicle moved back into the right-hand travel lane. Lawrence attempted to stop the vehicle again by activating his siren, but the vehicle maintained a speed of sixty-five miles per hour. Finally, about five to eight minutes later, the vehicle pulled over.
The defendant was the driver and sole occupant. He "appeared to be nervous" and confused, and he told Lawrence that he did not know why he didn't pull over. Lawrence observed a cotton ball on the floor of the vehicle, which, through his training and experience, he knows is used by intravenous drug users as a filter. After telling Lawrence that there were no drugs or weapons in the vehicle, the defendant consented to a search. From the center console, Lawrence recovered new and used syringes, a scale with a powdery substance on it, and spoons with residue and burn marks on the bottom. Marion police Officer Alisha Crosby, who was assisting Lawrence, recovered from the back seat of the vehicle a backpack containing a brown powdery substance and a "kit" full of needles, spoons, and baggies of a powdery substance. The backpack had no name on it. The vehicle, which the defendant stated belonged to his girl friend, was towed to the Marion police department. Testing revealed that the substance recovered from the backpack contained heroin.
Discussion. The defendant challenges the sufficiency of the Commonwealth's evidence of possession. "In reviewing this claim, 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. Oberle, 476 Mass. 539, 547 (2017), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The Commonwealth proceeded on a theory of constructive possession, which requires proof of "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "Proximity to contraband and knowledge of its location do not establish constructive possession unless combined with other indicia to permit an inference of control over the substances." Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995).
Here, there was evidence that the defendant did not pull over when Lawrence first activated his blue lights. Instead, he entered a highway and, without slowing down, twice switched lanes with Lawrence right behind him using short bursts of his siren. The defendant's delay of five to eight minutes before stopping "could be considered by the jury as an indication of consciousness of guilt," Commonwealth v. Pratt, 407 Mass. 647, 652 n.7 (1990), and his knowledge of the contraband located in the vehicle could be inferred from the cotton ball's location at his feet. See Commonwealth v. Daley, 423 Mass. 747, 752 (1996). While a cotton ball itself is not contraband, Lawrence knew, based on his training and experience, that it is used while injecting illicit substances. See Pratt, supra at 650 n.4 ("A spoon often is used to heat heroin," while "[a] cotton swab often is used to strain the heroin"). Drug paraphernalia was located in the center console at the defendant's right arm, the backpack was in the rear passenger seat within the defendant's reach, the defendant failed to stop, and he was nervous and confused when approached by Lawrence. From this evidence, the jury reasonably could infer that the defendant took five to eight minutes to hide the contraband, missing the cotton ball, after observing Lawrence behind him. "An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable."' Commonwealth v. Merola, 405 Mass. 529, 533 (1989), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
While we agree that the evidence in this case is not overwhelming, "[p]ossession need not be exclusive," Commonwealth v. Watson, 36 Mass. App. Ct. 252, 259 (1994), and the question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, supra, quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). We are satisfied that the standard was met in this case.
There is no merit to the defendant's claim that the prosecutor misstated the evidence, creating a substantial risk of a miscarriage of justice. The prosecutor argued that there was no evidence that the backpack belonged to someone other than the defendant. However, in response to defense counsel's question on cross-examination, "[w]ho did the backpack belong to?," Lawrence testified that he did not "recall her first name, but it was [one of the] Gianellie's." Where this is the only evidence of the backpack's owner—Crosby testified that the backpack had no name on it and there was no evidence of the backpack's contents, other than the contraband—we cannot agree that "the prosecutor exceeded the scope of proper argument by misstating important aspects of the testimony beyond inferences that might reasonably have been drawn from the evidence, and thereby committed error." Commonwealth v. Coren, 437 Mass. 723, 731 (2002). Defense counsel's failure to object to the closing "provide[s] some guidance" that he did not consider the statement "prejudicial in the circumstances," Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987), and the judge's instructions to the jury, that, "if your memory of the testimony differs from the attorneys when they were arguing before you a few moments ago, you are to follow your own recollection," was sufficient to cure any potential error. See id. at 522-523.
Judgments affirmed.