Opinion
13-P-165
06-19-2014
COMMONWEALTH v. JASON DAGRACA-TEIXEIRA (and five companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendants were convicted of possession of heroin, unlawful possession of a firearm, and unlawful possession of ammunition. On appeal, both defendants claim the evidence supporting their convictions was insufficient, and defendant Adilson Teixeira (Adilson) claims the prosecutor's closing argument was improper. We affirm.
The judge allowed motions for a required finding of not guilty on the charge of conspiracy to violate the drug laws, and the jury acquitted the defendants of possession of heroin with an intent to distribute.
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1. Possession of heroin. Both defendants claim there was insufficient evidence to support their convictions of possession of heroin. We disagree. Defendant Jason Dagraca-Teixeira (Jason) had a key to the first bedroom where both heroin and his baptismal certificate were found, and he arrived at the apartment during the search; similarly, Adilson was present during the search, and in the second bedroom his birth certificate was found on a table, next to heroin and cash. See Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 505-506 (1998) (defendant's birth certificate found near contraband in bedroom). Contrast Commonwealth v. Brown, 34 Mass. App. Ct. 222, 226-227 (1993) (contraband not found in bedroom where defendant's belongings were kept). These facts establish a sufficient connection to the room for purposes of constructive possession. See Commonwealth v. Pratt, 407 Mass. 647, 652 (1990) ('When contraband is found in a dwelling shared by a defendant and one or more other persons, a finder of fact may properly infer that the defendant is in possession of the contraband . . . from evidence that the contraband was found in proximity to personal effects of the defendant in areas of the dwelling, such as a bedroom or closet, to which other evidence indicates the defendant has a particular relationship'), quoting from Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986). 2. Possession of firearms and ammunition. Both defendants also claim the evidence is insufficient to establish their constructive possession of the firearms and ammunition. Although a closer question than the constructive possession of the heroin, we nonetheless disagree. The firearms and ammunition were found concealed in an attic space in the hallway, directly above the two bedrooms, which were linked (as described supra) to the defendants. The attic space where the contraband was discovered is only accessible from inside the apartment. Given the evidence supporting the inference that the defendants lived in the bedrooms in question, that status 'indicates 'more than mere presence." Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991), quoting from Commonwealth v. Arias, 29 Mass. App. Ct. 613, 616 (1990), S. C., 410 Mass. 1005 (1991). Indeed, the weapons being concealed as they were permitted the jury to find that they were not placed there by any person casually passing by the bedrooms, but instead by someone, likely an occupant, who was well acquainted with the premises.
The permissibility of an inference of knowledge coupled with the ability to exercise dominion and control is often informed by the location of the contraband in question. Here, the incriminating link to the defendants was in the nearby bedrooms adjacent to the hallway attic space. The reach of such a link 'should not be limited, in the interest of line-drawing, by the walls of the place' where the guns were found, but by experience and common sense. Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 239 (1997). See id. at 237 (defendant's ability to exercise control over contraband 'apparent from his right of access' to common porch adjacent to apartment linked to defendant). Moreover, the inference of the defendants' awareness of the guns is more compelling where the guns were concealed within the apartment, rather than outside. Id. at 240. See Commonwealth v. Montanez, 410 Mass. 290, 305-306 (1991) (drugs in ceiling in common hallway outside defendant's apartment sufficiently linked to defendant). The fact that it is possible that another occupant of the apartment may have hidden the guns in the attic space does not inform our inquiry. 'The Latimore standard does not require that the Commonwealth entirely eliminate the possibility that someone other than the defendant[s] could have committed the crime.' Id. at 306. However, unlike in Commonwealth v. Brown, supra at 225-226, and Commonwealth v. Boria, 440 Mass. 416, 420-421 (2003), here there was no evidence establishing that another person in the apartment was linked in any way to the criminal activity discovered therein. See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 412- 413 (2013). There was sufficient evidence to permit the jury to conclude that the defendants constructively possessed the firearms and ammunition.
3. Closing argument. Adilson claims for the first time on appeal that by referring to the Commonwealth's witnesses as police officers, the prosecutor improperly vouched for their testimony, and thereby created a substantial risk of a miscarriage of justice. We disagree. While the prosecutor did refer to the Commonwealth's witnesses as police officers, that characterization was proper. At no point in his closing argument did the prosecutor argue that the jury should believe the witnesses' testimony because of their positions as police officers.
Adilson also contends for the first time on appeal that the prosecutor argued facts not in evidence when he told the jury the police officers did not know the defendants. While there was no direct evidence of this, we fail to see how this created a substantial risk of a miscarriage of justice. The remark did not address any critical issue in the case. The judge instructed the jury that arguments are not evidence. Finally, telling the jury that the police did not know the defendants implies that the defendants did not have a criminal background, which inures to their benefit.
Judgments affirmed.
By the Court (Green, Meade & Sullivan, JJ.),