Opinion
No. 15–P–757.
05-26-2016
COMMONWEALTH v. Andre HARRIOT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a Superior Court jury of assault by means of a dangerous weapon; resisting arrest; possession of cocaine with intent to distribute and possession of marijuana with intent to distribute, both as subsequent offenses, and each coupled with a school zone violation; possession of a firearm without a license and with one prior serious drug offense (armed career criminal); and possession of a loaded firearm. The defendant asserts a myriad of errors.
The defendant waived his right to a jury trial with respect to the subsequent offense and armed career criminal portions of the indictments, which were tried before a judge.
We conclude that the charges arising from the encounter with the police were improperly joined for trial with the narcotics charges. Because of the misjoinder and other errors affecting the defendant's assault and firearms convictions, we reverse the judgments and set aside those verdicts. As the defendant's convictions of the narcotics charges rested on insufficient evidence, those judgments are reversed, the verdicts are set aside, and judgments are to enter for the defendant. We therefore do not address the defendant's contentions regarding his school zone convictions—these judgments are also reversed, the verdicts are set aside, and judgments shall enter for the defendant. We affirm the judgment regarding the charge of resisting arrest.
Background. On May 18, 2010, around 1:30 P.M., officers of the Worcester police vice squad were conducting surveillance wearing plainclothes and in unmarked cars in the area of Mason Street and May Street in Worcester. Officer Mike Hanlon had been monitoring a black Mercedes sport utility vehicle (SUV) for five minutes when he saw a passenger exit the car. The passenger, later identified as the defendant, was a tall, dark-skinned man with a beard. He stood next to the SUV and looked up and down the street. After about five minutes, a Chrysler Pacifica SUV pulled up and parked immediately behind where Hanlon was stationed. When the defendant saw the Chrysler arrive, he reentered the Mercedes.
We recite the facts as the jury could have found them.
The defendant then exited the Mercedes again and walked over to the Chrysler, spoke with the driver briefly through the driver's side window, and entered the front passenger side. Hanlon requested that Officer Dana Randall, also of the vice squad, follow the Chrysler as it pulled away from the curb. Randall tailed the Chrysler as it drove to West Oberlin Street, dropped off an individual, and then returned to Mason Street. The entire trip took only two minutes or so.
Back on Mason Street, the driver of the Chrysler and the defendant both exited that car and went to the Mercedes, whose driver had remained in the car throughout. Once the defendant was in the front passenger seat of the Mercedes and the driver of the Chrysler was in its back seat, the Mercedes drove away.
Randall radioed for a marked cruiser to stop the Mercedes. Officer Joseph Azzarone, a uniformed officer from the Worcester police operations division, activated the lights and sirens on his cruiser. He encountered the Mercedes coming down King Street toward his cruiser. The Mercedes abruptly swerved to its left in an apparent attempt to reverse its direction. Azzarone swerved to his right to block it, bringing the Mercedes to a stop. Randall came up from behind the Mercedes in an unmarked car.
As he was getting out of his cruiser, Azzarone saw the defendant emerge from the front passenger side of the Mercedes and take a gun with a black barrel out of his waistband. Azzarone drew his own weapon and ordered the defendant to stop. He also yelled “gun” three times to alert other officers.
The defendant, still holding the gun, turned around towards Randall. Randall identified himself as a Worcester police officer, drew his weapon, and ordered the defendant to drop his gun. The defendant momentarily raised or swung his gun in Randall's direction so that it was pointing at him. He then lowered the gun, ran back around the Mercedes towards Azzarone, and fled up King Street toward Chandler Street while still holding the gun. Officer Azzarone pursued the defendant, staying on Chandler Street as the defendant ran behind buildings, through a small parking lot, and over a dumpster onto Bellevue Street. The defendant went over a fence and another dumpster toward Bancroft Street before Azzarone lost sight of him. According to Azzarone, the defendant had the gun in his hand the entire time as he ran.
After the defendant disappeared, Azzarone and other officers continued searching the area for him. In a yard immediately next to one of the dumpsters the defendant had climbed over before Azzarone lost sight of him, officers discovered a black handgun. It appeared to be the same handgun Azzarone had seen the defendant holding earlier.
The defendant was later seen entering a clothing store on Chandler Street close to the area where he had initially fled from police. He then entered the rear door of an adjacent barber shop. The barber, Jeffrey Cordero, testified that the defendant was sweating profusely, breathing heavily, and coughing. The defendant first asked Cordero to simply line up his goatee, to separate it from his beard. While Cordero was working on him, the defendant got up from the chair periodically to cough vigorously. After the goatee work, the defendant briefly left the barber shop. He then returned and asked Cordero to “take everything off,” meaning he wanted a clean shave and haircut. Cordero cut his hair and shaved what had been a “thick, full beard.” Cordero later identified the defendant based on a photographic array administered by the police.
The officers on scene arrested one of the other occupants of the Mercedes and processed the car for latent fingerprints. Fingerprints from the passenger's side front door handle of the Mercedes were later determined to match those of the defendant. Investigators were unable to recover any usable fingerprints or sufficient deoxyribonucleic acid (DNA) from the firearm to make any comparisons. At some point on May 18, Randall's supervisor showed him a photograph of the defendant that Randall immediately recognized to be the armed suspect he had encountered at the black Mercedes on King Street.
It is not clear how this photograph was selected for presentation to Randall.
Later that same day, around 8 P.M. or 9 P.M., Officers Terrence Cahill and James Guittar were provided with a photograph of the suspect from the incident with Officer Randall earlier in the day, and were directed to go to 27 Jefferson Street in Worcester. Cahill and Guittar established a surveillance position on Arlington Street about 150 to 200 feet away from the house. After a little while, Cahill observed the defendant exit from the side door of 27 Jefferson out onto the driveway, walk towards the end of the driveway, and then turn around to walk back into the house. About ten minutes later, the defendant exited from the side door again and entered a waiting black Lincoln livery vehicle. Immediately prior to seeing the defendant leave to enter the Lincoln, Cahill saw a light go out in the apartment that was either in, or adjacent to, the living room. Officers ultimately stopped the livery vehicle and, after a struggle, arrested the defendant.
It is not clear how the police tracked the defendant to this address.
After the defendant was arrested, Officer Jon Kachadoorian returned to 27 Jefferson Street in time to see a gray Honda Element pull up and drop off an individual, later identified as Akeem Harriot. Akeem entered the first-floor apartment through the same rear side door the defendant had used earlier in the evening. Kachadoorian and Officer Jeff Carlson approached the side door, noting a strong odor of marijuana. After an interaction with Akeem, the officers began searching 27 Jefferson for anyone else who might have been inside.
Where other parties share the same last name as the defendant, we refer to them by their first names to avoid confusion.
During their sweep of the apartment, officers observed in plain view multiple bags of marijuana (weighing a combined total of more than 220 grams) and cocaine (weighing a combined total of more than three grams), a scale, rubber gloves, and a package of Ziploc bags. In addition, officers recovered approximately $4,750 in cash. Kevin Harriot arrived at 27 Jefferson while the officers were still present conducting their search.
Other narcotics and firearm evidence, as well as personal items and paperwork of the defendant, were suppressed prior to trial on the basis that Akeem's written consent to search beyond the protective sweep was not the product of free will.
Although the seizure of the cash was suppressed, the trial judge allowed the Commonwealth to elicit testimony about it after concluding that the defendant had opened the door on cross-examination of the Commonwealth's narcotics expert. The defendant does not challenge on appeal the admission of this evidence.
Discussion. 1. Severance. The defendant contends that the joinder of the assault incident on King Street with the drug charges from Jefferson Street was prejudicial and that his motions to sever were improperly denied. “[T]he decision whether to join offenses for trial is a matter left to the sound discretion of the judge, and will not be reversed unless there has been a clear abuse of discretion.” Commonwealth v. Pillai, 445 Mass. 175, 179–180 (2005) (citations and quotations omitted). We therefore review the decision on a motion to sever to determine whether the judge made “a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.” Commonwealth v. Johnson, 473 Mass. 594, 602 (2016), quoting from Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015). “[T]o prevail on a claim of misjoinder, the defendant ‘bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.’ “ Pillai, supra at 180, quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).
a. Unrelated offenses. For purposes of joinder, offenses are related “if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.” Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979). In determining whether offenses are related, judges consider if the evidence in its totality shows a common scheme and pattern of operation, including factors such as “factual similarities” and “closeness of time and space.” Pillai, supra.
The defendant first moved to sever in November, 2011, nearly one year before trial. While we do not entirely endorse the motion judge's rationale, we are satisfied that she did not abuse her discretion in denying the motion. The motion judge concluded, in part, that “the King Street incident might provide additional incriminating evidence that [the defendant] knew of the drugs and exercised control over them.” On this view, the defendant's conduct at or near King Street might plausibly have suggested street-level drug sales. As we discuss infra, where the Commonwealth was proceeding against the defendant on a theory of constructive possession of the narcotics found at 27 Jefferson Street, it needed to establish a “plus” factor beyond the defendant's mere presence at the apartment where drugs were later found. See Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 149 (1999) (“Presence alone where unlawful drugs are found, it is well settled, is not enough from which to infer either possession of the drugs or participation in the unlawful venture to distribute them.... There needs to be a ‘plus' factor, i.e., incriminating evidence of something other than presence”).
The defendant's participation in narcotics activity the very same day and within hours of his returning to an apartment that was used as part of a drug operation would, if proved by competent evidence before the jury, be a relevant and permissible plus factor. Such evidence would not have been impermissible propensity evidence but relevant evidence that was probative on subsidiary questions of the defendant's knowledge, intent, plan, and course of conduct with respect to the drugs recovered. See Pillai, supra at 180–181, quoting from Gaynor, supra (“[E]vidence of other criminal conduct may not be used to prove the propensity of the defendant to commit the charged offense, ... but it may be admissible for other purposes, such as ‘to show a common scheme or pattern of operation’ ”); Velasquez supra at 153 (method of operation of defendant's stashing drugs in basement and dealing from apartment in the same building “was probative, not of propensity, but of method and operation” and “it was within the discretion of the judge to admit it”); Mass. G. Evid. § 404(b)(2) (2016). Specifically, competent evidence that the defendant had engaged in street-level drug dealing several hours earlier would support the Commonwealth's theory that 27 Jefferson Street was not just a stash house but his stash house.
The defendant renewed his motion to sever after the completion of empanelment on the second day of trial, September 7, 2012. Between the motion judge's decision on severance and the defendant's renewed motion, the Commonwealth agreed to prohibit the prosecution from telling the jury why the Mercedes, of which the defendant was a passenger, was stopped in the first place, or to explicitly suggest that drugs were involved. Thus, when the trial judge summarily denied the defendant's renewed motion to sever, the trial judge was in a materially different position than the motion judge.
Once the King Street incident had been stripped of any tendency to prove the defendant's method of operation in street-level narcotics distribution, the gun and drug charges were no longer even colorably “related offenses” under rule 9 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979). The trial judge erred in concluding that the King Street incident was related to the Jefferson Street incident for purposes of joinder, ostensibly simply because the incidents occurred on the same day. See Commonwealth v.. Blow, 362 Mass. 196, 200–201 (1972) (Offenses not necessarily related just because they occurred on same day by same defendant). As the Commonwealth had disavowed any intention to portray the defendant's conduct precipitating the King Street stop as consistent with street-level drug dealing, the firearm and assault charges were “entirely distinct” from the narcotics charges. Commonwealth v. Spray, 467 Mass. 456, 469 (2014). See Commonwealth v. Green, 52 Mass.App.Ct. 98, 102 (2001).
Moreover, because the testimony of the officers involved in the King Street incident was no longer relevant to the Jefferson Street charges, it would not have been admissible in any trial of those charges alone. See Pillai, 445 Mass. at 180 (“[T]he propriety of joining offenses for a single trial often turns on whether evidence of the other offenses would be admissible in separate trials on each offense”). The judicial economy promoted where the same witnesses will testify to the facts underlying both charges was also thereby rendered a nonissue. Contrast Commonwealth v. Clarke, 418 Mass. 207, 217 (1994).
The Commonwealth contends that the evidence concerning the defendant's use of the firearm was itself probative of the constructive possession charges. “[T]he frequent association of guns with drug dealing ... has been noted in appellate decisions .” Commonwealth v. Va Meng Joe, 40 Mass.App.Ct. 499, 510 n. 13 (1996), S.C., 425 Mass. 99 (1997). However, there is no automatic connection between possession of a firearm and narcotics activity. Rather, each case must be determined on its own facts. See, e.g., Commonwealth v. Cannon, 449 Mass. 462, 470–471 (2007) (concluding there was sufficient evidence for jury to infer defendant's knowledge that coventurer in drug-related robbery was armed based on fact-intensive analysis). Indeed, courts have rejected the automatic connection between narcotics and firearms even where the evidentiary threshold is mere reasonable suspicion. See Commonwealth v. Dagraca–Teixeira, 471 Mass. 1002, 1004 n. 3 (2015) ( “[E]vidence of illegal drug activity does not necessarily warrant a conclusion—even under a reasonable suspicion or probable cause standard—that illegal weapons are present”). See also Commonwealth v. Washington, 449 Mass. 476, 482–483 (2007) (acknowledging cases that have noted connection between drugs and guns but declining “to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes”); Commonwealth v. Gomes, 453 Mass. 506, 512–513 (2009).
In any event, even if we were willing to accept the argument that the presence of narcotics is a strong indicator of the presence of firearms because of the dangers inherent in drug dealing, that does not mean that the reverse is also true. The Commonwealth has not suggested any basis in authority for the argument that the presence of guns is a good indicator of narcotics activity or probative of constructive possession of the drugs at 27 Jefferson Street. Considering that gun ownership is itself not illegal, such an argument has almost no logical heft.
Nor has the Commonwealth shown how evidence from King Street would be admissible to prove the motive to commit the Jefferson Street offenses, or vice versa. The Commonwealth's reliance on Commonwealth v. Cotto, 52 Mass.App.Ct. 225, 231 (2001), and Commonwealth v. Rushworth, 60 Mass.App.Ct. 145, 147–148 (2003), is misplaced. Joinder was proper in Cotto because the defendant confessed to breaking and entering and arson in the course of a subsequent kidnapping and assault, and both sets of crimes arose from his motive to exact revenge on an individual associated with both victims. In Rushworth, the crimes the defendant committed against one victim were the direct result of allegations that he had previously sexually assaulted that victim's daughter, and so all of the offenses arose out of a course of criminal conduct or series of criminal episodes and the jury would have learned about the other crimes regardless of the sequence in which the indictments were tried.
The defendant's activities on Jefferson Street and King Street did not arise out of one another or reference one another in any comparable way. While it is conceivable that the defendant may have fled from police on King Street because he was afraid that his arrest there would lead the police back to his stash house on Jefferson Street, the Commonwealth failed to even establish that the defendant lived at Jefferson Street or that he would have believed that the police would follow him there. Plus, the simple fact that he was a convicted felon in possession of a firearm at the time of the stop provided ample reason for him to run from Azzarone and Randall without resorting to speculation about his connection to the drugs at 27 Jefferson Street. In any event, the probative value of such speculation in proving possession of the narcotics would not be sufficient to outweigh the risk of unfair prejudice the defendant would face from the jury's hearing about his other bad acts on King Street. See Commonwealth v. Crayton, 470 Mass. 228, 249 n. 27 (2014) ; Mass. G. Evid. § 404(b)(2) (2016).
The same reasoning applies to the Commonwealth's argument that the defendant's flight from the motor vehicle stop shows consciousness of guilt that is probative of his possession of narcotics. Assuming that he was indeed the armed suspect on King Street, his behavior in the aftermath of the stop is highly indicative of consciousness of guilt with respect to the firearm offenses because he presumably fled and then altered his appearance to avoid being apprehended and charged with firearm offenses. It says nothing of his guilty mind with respect to drugs found in an apartment that, from all that appears from the evidence at trial, he did not visit until later in the day. His resisting arrest later in the day adds nothing to the Commonwealth's theory on this point. Again, the most that could be said on behalf of the Commonwealth's theory is that the defendant initially fled not only to avoid gun charges but also to avoid the more intensive investigation into his life that might result, including the search of 27 Jefferson Street, where he might have lived. But, again, this is far too speculative. The consciousness of guilt cases cited by the Commonwealth are inapposite as they all involve defensive conduct at the premises where narcotics were found or flight from justice on the drug charges, not flight from, or evasive maneuvers at, the scene of a separate crime. See Commonwealth v. Gonzalez, 42 Mass.App.Ct. 235, 238–240 (1997) ; Velasquez, 48 Mass.App.Ct. at 150.
b. Prejudice. “A defendant claiming that two or more offenses have been joined improperly for trial bears the burden of demonstrating prejudice from misjoinder.” Spray, 467 Mass. at 469. Not all instances of improper joinder result in reversible prejudice. See, e.g., Green, 52 Mass.App.Ct. at 102–103 (no prejudice from misjoinder in bench trial because there was “reason to believe both that the judge was capable of avoiding the impermissible cross-use of evidence and that he actually did so,” because judge acquitted defendant of some assault-related charges). Indeed, acquittals on some charges are often used to establish that the defendant was not prejudiced by joinder. See Commonwealth v. Delaney, 425 Mass. 587, 595 (1997) ; Commonwealth v. Gray, 465 Mass. 330, 337 (2013) ; Spray, supra.
“[D]iscernment by the factfinder in assessing the evidence, is a strong indication that a misjoinder of offenses has not resulted in any actual prejudice to the defendant,” Green, supra at 103; no such discernment was present here where the jury convicted the defendant of all counts. Unlike Green, the evidence on the narcotics charges was not particularly strong. In fact, as we discuss infra, that evidence was legally insufficient. The Commonwealth's case on the assault and firearm charges, although significantly stronger, suffered from other problems. The likelihood that the prejudicial spillover flowed in both directions (from King Street to Jefferson Street and vice versa) is therefore too troubling to ignore.
The Commonwealth has not pointed to any effort by the judge to minimize this risk of prejudice. Although the defendant ordinarily “must show that any prejudice from joinder was beyond the curative power of the judge's limiting instructions,” Commonwealth v. Allison, 434 Mass. 671, 679 (2001), the trial judge's final charge here did not include any instruction—even a generic one about considering each indictment separately—that might have limited the seepage or spillover from the different sets of offenses. Nor has the Commonwealth pointed to any other actions taken by the trial judge at any point in the trial that would have mitigated the potential prejudice the defendant faced from the failure to sever. Because there was no explicit warning against consideration of the offenses for propensity purposes, the jury were free to reach the impermissible conclusion that the defendant was likely a bad guy with drugs on Jefferson Street because he was a bad guy with a gun on King Street, and vice versa.
“Whether the joinder of the charges resulted in undue prejudice ‘turns, in large measure, on whether evidence of the defendant's other offenses would have been admissible at a separate trial on each set of indictments.’ “ Cotto, 52 Mass.App.Ct. at 231, quoting from Commonwealth v. Wilson, 427 Mass. 336, 346 (1998). Cf. Commonwealth v. Gagnon, 45 Mass.App.Ct. 584, 591 (1998) (“An important means of evaluating whether the defendant was unfairly prejudiced by spillover evidence is to ask whether the evidence concerning one victim would have been allowed in a separate trial concerning the other victim”). As we have already noted, absent a narcotics context for the King Street stop, evidence of the two sets of offenses would not have been cross-admissible at separate trials.
In sum, we are persuaded that the jury likely were influenced by the accumulating effect of evidence from what are properly viewed as unrelated offenses. But the prejudicial effect is not evenly distributed across all indictments.
i. Narcotics charges. We have little doubt that the trial of the narcotics charges was prejudiced by joinder, a conclusion reinforced by the independently reversible paucity of evidence on those charges that we discuss infra.
ii. Firearm and assault charges. The case for reversibly prejudicial misjoinder is closer on the firearm offenses because, as the defendant conceded at oral argument, the Commonwealth's evidence was stronger on these charges. Indeed, while the defendant maintained at oral argument that the prejudice runs both ways, the thrust of his misjoinder argument was that the prejudicial spillover flowed from the gun charges to the drug charges. Still, we cannot definitively say “that the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445 (1983).
Although the prejudice on this aspect of the misjoinder is arguably a close call, the failure to sever was not the only claimed error affecting these charges. Focusing just on two of the additional claimed errors that relate to identification—a comment by one of the Commonwealth's latent fingerprint analysts and the identification by Officer Randall—supports the conclusion that reversal is prudent.
iii. Improper fingerprint testimony. The testimony of the forensic latent fingerprint analyst Janis Bianculli of the Worcester police department—comparing prints lifted from the front passenger side door handle of the Mercedes with the defendant's prints—presents another factor that undermines our confidence in the integrity of the firearm and assault convictions. In explaining her methodology and, in particular, why she does not need a minimum number of points of comparison, Bianculli testified on redirect examination that “in your mind, you have to be 100 per cent sure that that is enough for you to call it as a match. So there is not a number of points....” The defendant objected, and the judge overruled the objection. This was error.
Despite the Commonwealth's attempts to reframe this testimony, which it concedes was “inartful” and “better left unsaid,” it is likely that the jurors would have been left with the impression that the witness only identifies matches when she is one hundred percent sure and, consequently, that where she identified a match in this case, she must have been one hundred percent sure. This kind of testimony is prohibited, and it should not have been presented to the jury here. See Commonwealth v. Gambora, 457 Mass. 715, 729 n. 22 (2010) ; Commonwealth v. Joyner, 467 Mass. 176, 184 n. 11 (2014).
We need not, and do not, decide whether this testimony would be sufficiently prejudicial on its own to require reversal, but only that it is one of a series of legal errors that undercut the defendant's identification defense, the cumulative weight of which require reversal. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985) (combination of unpreserved and individually insufficiently prejudicial errors presents substantial risk of miscarriage of justice requiring reversal).
2. Suggestive identification. “Under art. 12 of the Massachusetts Declaration of Rights, an out-of-court eyewitness identification is not admissible where the defendant proves by a preponderance of the evidence, considering the totality of the circumstances, that the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.” Commonwealth v. Walker, 460 Mass. 590, 599 (2011). “If a defendant sustains his burden of showing that a given identification was unnecessarily suggestive, then the Commonwealth may not introduce a subsequent identification by the same witness absent clear and convincing evidence that the subsequent identification had an independent source and was not merely the product of the prior suggestive confrontation.” Commonwealth v. Watson, 455 Mass. 246, 254–255 (2009).
“Although one-on-one confrontations are not per se excludable, they are disfavored because of their inherently suggestive nature.” Commonwealth v. Johnson, 420 Mass. 458, 461 (1995). For the first time on appeal, the defendant challenges Randall's out-of-court identification when his supervisor showed him a single photograph. We review for a substantial risk of miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293–296 (2002). “Whether an identification procedure is ‘unnecessarily’ or ‘impermissibly’ suggestive ... involves inquiry whether good reason exists for the police to use a one-on-one identification procedure ... and whether the police avoided any ‘special elements of unfairness, indicating a desire on the part of the police to “stack the deck” against the defendant.’ “ Commonwealth v. Martinez, 67 Mass.App.Ct. 788, 792 (2006) (citations omitted). See Commonwealth v. Leaster, 395 Mass. 96, 103 (1985) ; Commonwealth v. Sylvia, 57 Mass.App.Ct. 66, 68–69 (2003).
The limited record here does not establish whether the identification by Officer Randall was impermissibly suggestive. We need not, and do not, decide that question now. However, we note that we are troubled by the potentially cumulative effect of an arguably suggestive identification by an eyewitness victim where the defense on the firearm and assault charges was misidentification and where that defense may have already been prejudiced by the improperly joined narcotics charges (in which there was no doubt as to identification) and the implication in Bianculli's testimony that she was absolutely certain of the fingerprint match. “Since mistaken identifications are probably the greatest cause of erroneous convictions, we must require the fairest identification procedures available under the circumstances. With the stakes so high, due process does not permit second best.” Johnson, supra at 465, quoting from Wright v. United States, 404 F.2d 1256, 1262 (D.C.Cir.1968) (Bazelon, J., dissenting).
At trial, Randall suggested that police officers participating in identification procedures are subject to different standards than civilians. But, “that it was a police officer, rather than a lay person, who was shown an unnecessarily suggestive photograph does not, of course, trump overarching constitutional protections.” Martinez, 67 Mass.App.Ct. at 800 n. 4 (Berry, J., concurring).
3. Resisting arrest. Because the charge of resisting arrest already inevitably implies a prior underlying arrestable offense, and because there was no question of misidentification on this count (and barely any effort to mount a defense to this charge at trial), we are satisfied that the misjoinder did not prejudice the defendant's trial on the resisting arrest charge.
In light of our conclusion that all but one of the judgments must be reversed where the defendant was prejudiced by the joinder for trial of unrelated offenses, we need not address many of the defendant's remaining contentions regarding the conduct of that trial. However, we must address the defendant's contentions regarding the sufficiency of the evidence underlying the reversals in order to determine whether he may be retried on the indictments. See Commonwealth v. Hanson, 79 Mass.App.Ct. 233, 234 (2011) (“If evidence, when considered in totality, is sufficient, even where a conviction is reversed on appeal because of the erroneous introduction of a certain piece or pieces of evidence, a retrial is not barred by principles of double jeopardy”).
4. Constructive possession. The defendant contends that the evidence at trial was insufficient to prove that he constructively possessed the narcotics located in the apartment at 27 Jefferson Street. We agree.
a. Jefferson Street. “Proof of constructive possession requires the Commonwealth to show ‘knowledge coupled with the ability and intention to exercise dominion and control.’ “ Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting from Commonwealth v. Boria, 440 Mass. 416, 418 (2003). The evidence was sufficient to show the defendant's presence, but little more. Although two men with the same last name as the defendant were later seen in the same apartment, the Commonwealth failed to prove that the defendant had “more than [a] casual connection with the apartment.” Velasquez, 48 Mass.App.Ct. at 150. “[P]resence in an area where contraband is found alone cannot show the requisite knowledge, power, or intention to exercise control over the contraband. Living in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is not enough to prove constructive possession.” Boria, supra at 418–419 (citations and quotations omitted). For example, in Boria, the evidence was insufficient to support the Commonwealth's theory of constructive possession where the defendant was found sitting on the floor of the living room in which cocaine was found hidden in a videocassette recorder and various items used to process cocaine were found in the kitchen, apparently on the counter. Id. at 417 & n. 4. Even though the defendant admitted that she lived in the apartment and some of her personal effects were found in the living room, “there was no evidence linking her to the cocaine or related paraphernalia,” which were found in common areas. Id. at 420.
For example, the evidence showed that the utilities at 27 Jefferson Street, apartment 1, were in the name of Akeem Harriot. Pill bottles located on the living room coffee table and admitted in evidence were in the name of Kevin Harriot.
Both at trial and on appeal, the Commonwealth devoted substantial effort to demonstrate that the defendant had been in the living room of the apartment where drugs and drug distribution paraphernalia were found in plain view later that same evening. However, even assuming both that the defendant was in the lit living room and that the drugs were already out in plain view at the time he was there, that would only prove presence and knowledge or awareness and “mere presence in the apartment with knowledge that drugs are present is not enough to show constructive possession.” Gonzalez, 452 Mass. at 147. In Gonzalez, there was an inference that the drugs had been in plain view immediately prior to officers' entry. But this was far from the only evidence. The court reasoned that the “sparse furnishings and barricades suggest that the apartment was primarily used for drug transactions, they also suggest that all of those present were involved in the activity, not simply aware of it.” Id. at 148. Moreover, “unusually large amounts of cash” were found in the possession of the defendants, which “additionally support[ed] a finding that they were partners in the enterprise, and in constructive possession of the drugs.” Ibid.
In contrast, the defendant here was not found in possession of large sums of money and there is no indication that 27 Jefferson Street was primarily used for drug transactions. See Velasquez, supra (heavy volume of visits of short duration and barricade established that apartment was “drug trading post”). That the defendant appeared free to come and go from 27 Jefferson Street is also not sufficient. Cf. Commonwealth v. Sespedes, 442 Mass. 95, 101 (2004) (“The ability to exercise control over the premises and the defendant's brief presence in them is insufficient, at least in this case, to imply constructive possession of the hidden contraband”).
The evidence of the defendant's constructive possession has many of the same weaknesses highlighted by the court in Commonwealth v. Booker, 31 Mass.App.Ct. 435, 437–439 & n. 4 (1991). In Booker, the court concluded that there was insufficient evidence of the defendant's constructive possession of cocaine where “the police found no incriminating evidence on her person: the only connection between her and the cache was its presence in her apartment,” to the extent it even was her apartment. She shared it with at least one other person, someone else had access to the apartment prior to the discovery of contraband, the defendant was not present in the apartment at the time of the discovery, she evinced no consciousness of guilt nor carried any suspect paraphernalia or large amounts of cash, and narcotics were found in the common area living room. That analysis is equally applicable here. Contrast Velasquez, 48 Mass.App.Ct. at 150.
In sum, the Commonwealth failed to supplement its presence argument with other sufficient, competent, and incriminating evidence. At the end of the day, when viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the evidence and inferences showed “only the defendant's presence where contraband was found, at most, allowing the reasonable inference of awareness” and did not “tip the scale in favor of sufficiency to show an ability and intent to control the drugs.” Boria, 440 Mass. at 421, quoting from Commonwealth v. Brezinski, 405 Mass. 401, 409–410 (1989). “To permit the defendant to be convicted on such evidence comes perilously close to endorsing guilt by presence at the scene of contraband, a concept we have disavowed.” Sespedes, supra at 102.
Not only is mere presence in a residence insufficient on its own, even presence in a confined area like an automobile where the defendant is observed to be sitting “within inches” of the contraband is insufficient on its own, but “presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.” Commonwealth v. Cullity, 470 Mass. 1022, 1023–1024 (2015), quoting from Commonwealth v. Romero, 464 Mass. 648, 653 (2013).
b. King Street as “plus” factor. The Commonwealth contends that the defendant's conduct leading up to and culminating in the King Street incident, viewed in the light most favorable to the Commonwealth, proves that the defendant had been engaged in street-level drug activity earlier in the day and that, when confronted by police, he fled and undertook measures to evade detection and capture.
Constructive possession “may be inferred from circumstantial evidence which, in terms of practical experience of the conduct of human beings, points to such a finding.” Commonwealth v. Brown, 34 Mass.App.Ct. 222, 225 (1993), quoting from Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618–619 (1990). The jury did hear evidence of behavior of the defendant that was arguably consistent with a street-level drug deal in the form of Officer Randall's objected-to testimony that Officer Hanlon advised him “that he had witnessed a—what he believed to be a narcotics transaction.” But we are satisfied that no rational juror could conclude beyond a reasonable doubt, based on one officer's statement that another officer believed he had seen a drug deal on King Street, that the defendant constructively possessed the drugs found in the Jefferson Street residence six hours later.
The defendant challenges the admission of this testimony on appeal, and we agree that the defendant's objection should have been sustained as the testimony was hearsay that violated the pretrial order that issued after the Commonwealth agreed without qualification not to elicit this very testimony.
Even if we assume arguendo that Randall's conclusory testimony could tip the balance in favor of sufficiency, the question would remain whether the defendant can be retried on the narcotics charges. See Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992), quoting from Commonwealth v. Brouillet, 389 Mass. 605, 608 (1993) (double jeopardy “does not automatically bar retrial ‘where an insufficiency of evidence appeared only when material held ... to have been erroneously admitted [on appeal] was notionally removed from case’ ”). Given that the Commonwealth was ordered in limine, and had previously agreed, not to introduce the only shred of evidence that even arguably supports the jury's verdict, it would not be appropriate under DiBenedetto, supra at 46 n. 14, to permit the Commonwealth an opportunity to “fill[ ] the gap in its proof” created by removal of that shred.
5. Sufficiency of firearm evidence. We are satisfied that the evidence on the firearm convictions was sufficient to permit retrial.
a. License. The defendant contends that where he was convicted of carrying an unlicensed firearm, the Commonwealth was required to prove the absence of a license beyond a reasonable doubt . The defendant's argument ignores the settled law in Massachusetts, recently reaffirmed by the Supreme Judicial Court in Commonwealth v. Allen, 474 Mass. 162, 174 (2016), that a “defendant [bears] the burden of producing evidence that he [has] a license.” Furthermore, “a defendant charged with a possessory firearms offense” who wants to raise his own license as a defense “must, prior to trial, provide notice of intent to raise the defense of license, see Mass.R.Crim.P. 14(b)(3), [as appearing in 442 Mass. 1518 (2004),] and must produce ‘some evidence’ of license at trial before the burden shifts to the Commonwealth to prove the absence of the defendant's license beyond a reasonable doubt.” Commonwealth v. Humphries, 465 Mass. 762, 767 (2013). See Allen, supra, quoting from Commonwealth v. Norris, 462 Mass. 132, 145 (2012) (“We have addressed this issue on several occasions, and consistently reaffirmed ‘that under Massachusetts law, licensure is an affirmative defense, not an element of the crime’ ”). “Given the absence of notice pursuant to rule 14, the Commonwealth had no burden to prove the absence of a license beyond a reasonable doubt, and the defendant's failure to comply with the notice requirement is fatal to his claim.” Humphries, supra at 771, citing Commonwealth v. O'Connell, 438 Mass. 658, 665 (2003) .
We do not dwell on the defendant's contention that where the gun was found on the ground, the Commonwealth was somehow required to produce evidence of a third party's license. The Commonwealth proceeded on the theory that the defendant himself actually possessed the firearm, not that he was a joint venturer with someone who did. The defendant's reliance on this aspect of Commonwealth v. Humphries, 465 Mass. 762, 767–769 (2013), is therefore misplaced.
We agree with the Commonwealth that the defendant's citations to Alleyne v. United States, 570 U.S. 1 (2013), are inapposite as there is no question of judicial fact finding (outside the jury-waived subsequent offense proceeding) that increased the defendant's minimum sentence.
b. Possession. We reject the defendant's argument that the evidence of his possession of the firearm found on the ground in his path of flight was insufficient. Viewed in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 676–677, testimony by Officers Azzarone and Randall that they personally observed the defendant in possession of a firearm and that the firearm recovered from the area near the Bellevue Street dumpster was the same as the one they had seen the defendant carrying, together with the recovery of that firearm in the defendant's path of flight (as confirmed by the K9 unit that tracked past the area where the firearm was recovered), was sufficient evidence of possession. See Commonwealth v. Arroyo, 442 Mass. 135, 140 (2004) ; Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012).
6. Other issues likely to recur at retrial. We now briefly address remaining defense claims that may recur at a new trial. See id. at 833–834.
“The parties have briefed a number of issues not likely to recur or not likely to recur in the same context at retrial. We therefore do not discuss those issues.” DiBenedetto, 414 Mass. at 45 n. 13.
a. Identification evidence. Regarding the in-court identification of the defendant by Officer Hanlon, we note that, as the Commonwealth conceded at oral argument, any retrial would likely be subject to the new rule announced in Crayton, 470 Mass. at 241–242 (“The new rule we declare today shall apply prospectively to trials that commence after issuance of this opinion, and shall apply only to in-court identifications of the defendant by eyewitnesses who were present during the commission of the crime” [emphasis supplied] ). The same would therefore be true of other cases marking changes in the evolving jurisprudence on eyewitness identifications. See Commonwealth v. Collins, 470 Mass. 255, 265 (2014) ; Commonwealth v. Gomes, 470 Mass. 352, 375–377 (2015) ; Commonwealth v. Bastaldo, 472 Mass. 16, 18 (2015).
Although we have noted some concerns with Officer Randall's identification, this decision should not be construed to categorically bar its introduction at any retrial or to have concluded that it was impermissibly suggestive. See Bastaldo, supra at 32 (“It was the defendant's burden to prove by a preponderance of the evidence that any out-of-court confrontation with the victim was so impermissibly suggestive as to create a substantial likelihood of irreparable misidentification”). We expect that any challenge to the identification procedure employed in Officer Randall's photographic identification of the defendant will now be raised in advance of any retrial and will likely therefore be addressed by a judge on a more developed record, including, as appropriate, consideration of the circumstances surrounding Randall's viewing of the defendant at booking subsequent to his arrest.
The defendant contends that he was prejudiced by the erroneous admission of surveillance footage obtained by the police from a local establishment, John & Son's, because it was used to corroborate identification testimony and to connect him from the Mercedes to the barber shop and to the firearm. We do not now consider the defendant's challenges to the authentication testimony for the footage as we cannot anticipate what evidence the Commonwealth will use in any retrial (for example, the prosecution may decide to call a witness from John & Son's to testify).
b. Fingerprint evidence. The defendant moved in limine to exclude all fingerprint evidence based on the unreliability of latent fingerprint identification theory and the impropriety of individualization based on the four-step methodology of analysis, comparison, evaluation, and verification (ACE–V) in light of a 2009 report by the National Research Council for the National Academy of Sciences (NAS report). Because we expect the Commonwealth will seek to use fingerprint evidence in a potential new trial, we pause briefly to confirm the admissibility of this evidence. As the Supreme Judicial Court explained, “[c]onsistent with the decisions of other courts that have considered the issue since Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1973) ], ... the underlying theory and process of latent fingerprint identification, and the ACE–V methodology in particular, are sufficiently reliable to admit expert opinion testimony regarding the matching of a latent impression with a full fingerprint.” Commonwealth v. Patterson, 445 Mass. 626, 628 (2005).
Although the Supreme Judicial Court has since recognized “that the issues highlighted in the NAS report are important, and deserve consideration,” it noted that the NAS report nonetheless still accepts as plausible the proposition that careful comparison of two impressions can accurately discern whether or not they had a common source. Gambora, 457 Mass. at 727. Thus, the defendant's motion in limine was properly denied where he relied on the NAS report generally, rather than mounting any challenge to the care of the comparison in his case (e.g., the “quality of the prints under examination” and “the training, experience, and skill of the particular fingerprint examiner”) in seeking the exclusion of ACE–V evidence. Id. at 727, 729 n. 22. “[T]he dialogue in the relevant community appears to be a continuing one, see NAS report at 144–145 & n. 37, but [our case law does not] suggest that the existence of the NAS report alone will require the conduct of Daubert–Lanigan [ ] hearings as to the general reliability of expert opinions concerning fingerprint identifications.” Id. at 729 n. 22. See Joyner, 467 Mass. at 181 (“Although further research and developments in the field of forensic fingerprint analysis may provide greater transparency and lead to a reduction in error rates, expert fingerprint testimony based on the ACE–V methodology continues to be admissible provided that the testimony is limited to expression of opinion”); Commonwealth v. Wadlington, 467 Mass. 192, 205 (2014) (“We did not bar the admission of fingerprint identification opinions in our Gambora opinion, which discussed the NAS report at length, and we do not do so here”).
See Daubert, supra; Commonwealth v. Lanigan, 419 Mass. 15 (1994).
c. Consciousness of guilt instruction. In the final charge, the judge instructed the jury that: “Now, you heard evidence suggesting that the defendant may have fled the scene ... before his arrest. If the Commonwealth has proved that the defendant did flee, ... you may consider whether such actions indicate feelings of guilt by the defendant, and whether in turn such feelings of guilt might tend to show actual guilt.” This instruction is improper where, as here, the only contested issue is the identification of the defendant as the fleeing offender. See Bastaldo, 472 Mass. at 33–34.
d. Certified prior conviction. There is no merit to the defendant's contention that the Commonwealth's admission of certified convictions violated his right to confrontation under the Sixth Amendment to the United States Constitution. See Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 7 (2010) ; Commonwealth v. Ellis, 79 Mass.App.Ct. 330, 333 (2011).
Although the defendant claims a violation of art. 12, he cites only to Federal law. In any event, “when the issue involves the relationship between the hearsay rule and its exceptions, on the one hand, and the right to confrontation, on the other hand, ‘the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment.’ “ Commonwealth v. Cole, 473 Mass. 317, 329 (2015), quoting from Commonwealth v. DeOliveira, 447 Mass. 56, 57 n. 1 (2006).
--------
Conclusion. On the charge of resisting arrest, the judgment is affirmed. On the charges of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute and their associated school zone violations, the judgments are reversed, the verdicts are set aside, and judgments shall enter for the defendant. On the charges of assault by means of a dangerous weapon, possession of a firearm without a license, with one prior serious drug offense, and possession of a loaded firearm, the judgments are reversed, and the verdicts are set aside.
So ordered.