Opinion
20-P-1338
03-31-2022
COMMONWEALTH v. Clinton E. JENNINGS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of trafficking in heroin and cocaine. He now appeals, arguing (1) that the evidence was insufficient to support a theory of constructive possession and (2) that the prosecutor made improper comments during closing arguments. Because we conclude that the evidence was sufficient and that the closing comments were proper, we affirm.
Background. A jury could have found the following facts. On September 19, 2017, police lawfully entered the premises in Pittsfield in search of narcotics and narcotics paraphernalia. Before entering, the officers knocked and announced their presence and listened for a response inside the home. They heard nothing. As a result, police used a battering ram to open the door.
The doorway opened into the living room, where the police observed the defendant, standing alone in the middle of the room near a glass coffee table. Items on the table included money, drug packaging materials, a digital scale covered in powdery residue, a clear plastic bag of cocaine, and packaged heroin in a cardboard box. Behind the coffee table was an ottoman, which police noticed had an impression, as if someone had just been sitting on it. Police watched as the ottoman began to reform to its original shape.
Police described the table as a "drug work station."
Additional drug packaging materials, packaged heroin, and money were scattered on a nearby couch. And on the floor, within arm's reach of the ottoman, police found more packaged drugs and a purse. When police inspected the purse's contents, they discovered bulk packaged cocaine and heroin.
Police continued their search of the home and identified three other individuals: the apartment tenant, Keri McIntosh, and one other woman. Police found the other woman in the bathroom and McIntosh and the tenant in an upstairs bedroom. The apartment was rented only to the tenant, though she often allowed friends over. The defendant and McIntosh, who were in a romantic relationship at the time, were the tenant's guests. Evidence of their repeated presence in the home included a document that police found in the kitchen drawer with the defendant's name, photograph, date of birth, and social security number, and a poster in the bedroom that read "Swag and KK, us forever, forever love, could take over the world, and our love." The defendant's nickname was Swag, and McIntosh's nickname was KK.
At the defendant's trial, held in January 2020, the Commonwealth relied on the theory of constructive possession. The defendant, in contrast, denied having knowledge of the drugs altogether. McIntosh took the stand to provide critical testimony supporting this theory. She testified that the drugs belonged to her and that the defendant was unaware of their presence in the home. She claimed the defendant never saw the drugs in the living room because he entered the home through a side door that led into the kitchen and the upstairs stairwell. The defendant went upstairs immediately upon entering the home, where he stayed until the police arrived. According to McIntosh, the defendant ran downstairs when the police knocked on the door without knowing that drugs were in the living room. Despite this alternative version of events, the jury found the defendant guilty on both counts, and he timely appealed.
Discussion. 1. Sufficiency of the evidence. The defendant first argues that the evidence was insufficient to show that he constructively possessed the drugs in the apartment, and therefore, the judge's denial of his motion for a required finding of not guilty was error.
In evaluating the defendant's sufficiency argument, we view the evidence, including all reasonable inferences from the evidence, in the light most favorable to the Commonwealth and ask whether, based on such evidence, any rational juror could find the essential elements of constructive possession beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
To prove constructive possession, the Commonwealth must demonstrate that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control" over the substances at issue. Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Though "the elements of constructive possession may be proven entirely by reasonable inferences from circumstantial evidence ... mere presence in the area of contraband, without more, is insufficient" (citation omitted). Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846 (2010). "Rather, ‘[o]ther incriminating evidence’ is necessary to ‘tip the scale in favor of sufficiency.’ " Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013), quoting Brzezinski, supra at 410. "A ‘particular link’ of the defendant to the contraband, or at least to the area where the contraband is found, must be established." Hamilton, supra, quoting Commonwealth v. Boria, 440 Mass. 416, 420 (2003).
Here, the Commonwealth presented sufficient evidence linking the defendant to the contraband and the area where the contraband was found. The Commonwealth's evidence supported the position that the defendant was using the living room as a drug packaging station when police arrived at the home and that he had no time to flee the area. The evidence supporting this theory included the following: the defendant's presence next to the coffee table utilized as a drug processing station; the imprint on the ottoman behind the table suggesting that the defendant had just been sitting on it processing drugs since no one else was found in this area; that police located the three other occupants in different rooms; and finally, that police heard nothing after knocking on the door, suggesting that the other occupants could not have run from the living room before the police forcibly opened the door. Contrary to the defendant's contention, there was ample circumstantial evidence beyond his mere presence in the living room to support the conviction.
Even assuming there was sufficient evidence to show the defendant possessed the drugs on the table and the couch, the defendant argues there was insufficient evidence to establish his possession of the bulk drugs in the purse -- which comprised the majority of the narcotics in the case. We disagree. Given the defendant's presence in the living room, the proximity of the purse to the coffee table, which served as a drug packaging station, and the evidence suggesting that someone had been in the middle of packaging drugs when police arrived, a reasonable jury could find that the defendant had knowledge of and was actively exercising dominion and control over the bulk narcotics.
2. The prosecutor's closing arguments. The defendant also challenges two comments made by the prosecutor during closing argument. We consider comments made during closing argument "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Shanley, 455 Mass. 752, 773 (2010), quoting Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). In their closing arguments, prosecutors are authorized to state the evidence in terms favorable to the Commonwealth. See Commonwealth v. Anderson, 411 Mass. 279, 286 (1991). In doing so, they are "entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Such inferences "need only be reasonable and possible." Roy, supra. However, a prosecutor may not "misstate evidence or refer to facts not in evidence." Commonwealth v. Goddard, 476 Mass. 443, 449 (2017).
First, the defendant alleges that the prosecutor misstated the evidence when he argued that the defendant and McIntosh worked together to fabricate her testimony. Because the defendant timely objected to the remarks, we review for prejudicial error. Commonwealth v. Cole, 473 Mass. 317, 333 (2015). On cross-examination, the Commonwealth elicited evidence from McIntosh challenging her version of events that the drugs belonged to her alone and that the defendant had no knowledge of them. Such evidence included an admission that she still loved the defendant; that she spoke to the defendant around thirteen times within the ten-day period leading up to the trial; that they went over the facts of the case during many of these calls; and that she was not employed during the period she claims to have spent $1,400 on drugs. This evidence was sufficient to support the Commonwealth's closing comments that McIntosh's story was improbable and that she was lying to protect someone she cared about. The prosecutor did not misstate the evidence but rather asked the jury to draw a reasonable and possible inference from it.
After challenging McIntosh's version of events, the prosecutor stated:
"[T]hey worked out all of the details of this story ... It was a story concocted for you over two years of thinking about the case, of looking at the facts, of looking at the weaknesses of their case and trying to put together a story that made sense to you. Well, it doesn't make sense, ladies and gentlemen, for all the reasons that I just told you."
The Commonwealth also elicited evidence that McIntosh's friend only required her to pay for half of the drugs upfront despite knowing she was a drug user, selling $5,000 worth of drugs to her for $1,400.
Second, the defendant alleges that the prosecutor misstated the evidence when he suggested that the electronic scale police found in the living room was on when they entered the home. The defendant contends this fact lent critical support to the conclusion that he was interrupted while processing drugs at the time of the search. We review for a substantial risk of a miscarriage of justice as the defendant did not object to the prosecutor's comments. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The prosecutor stated:
"So we go in, we take that first establishing shot and pay careful attention to Commonwealth's Exhibit 2. That's that establishing shot. Look very carefully at what you see around that room. The workstation is right down in front of us. And, the scale that's on that workstation is still on. It's still lit up, if you look at the photograph. The scale is still on."
And later on:
"So, in summation, might I submit to you what really happened that day inside the room. Mr. Jennings was seated at that table. He was packaging up some drugs. He had -- He heard the knock, ‘Police,’ and he did what every single one of us would have done when you're startled -- it doesn't matter -- knock -- the police knocked on the door. Picture anything, when you're startled, what is the very first thing that you do, you freeze. You assess the situation. You involuntarily freeze. So, what's going on in his head right now? Maybe, is that really the police? Is someone messing with me? Is it the police? Knock, knock, knock, ‘Police.’ The second knock comes. Now he looks down. There's a lot of drugs in front of him at that work table. The scale is still on. There's heroin right there in front of the ottoman ..."
The evidence officer testified at trial that the first thing he did upon entering the home was take photographs of the living room. One of these "establishing shots" showed that the scale was on. From this evidence, it was reasonable for the prosecutor to ask the jury to infer that the scale appeared in that condition when the police made entry. After showing the jury the establishing shots, the Commonwealth showed the jury a series of close-up shots. The evidence officer could not recall how much time elapsed between the initial establishing shots and the close-up shots. One of these photographs depicted the scale, and this time the evidence officer testified that another officer had turned it on to ensure that it was functioning. Contrary to the defendant's claims, the fact that the police turned the scale on to take a close-up photograph is not inconsistent with the possibility that it was on when the police entered the home and does not render the prosecutor's interpretation of the evidence a misstatement. There was no error.
Judgments affirmed.