Opinion
10-P-1597
02-28-2012
COMMONWEALTH v. DARNELL SUMLIN.
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 in Superior Court, the defendant, Darnell Sumlin, was convicted of trafficking in cocaine, possession of cocaine with intent to distribute, and committing a controlled substances violation in a school zone. He appeals, arguing that the evidence was insufficient to support his conviction of trafficking and also that certain expert testimony wrongfully was admitted, creating a substantial risk of a miscarriage of justice. We affirm.
The jury heard evidence that the defendant was arrested when the Berkshire County drug task force executed a search warrant in North Adams. On his person was $1,622 in cash and an unmarked Howard Johnson Hotel (hotel) key. A bag containing fifteen rocks of cocaine 'had to be cut out of the pocket [of his shorts].' The codefendant had eighteen pieces of crack cocaine in his underwear; it was of similar packaging and purity to the cocaine seized from the defendant.
Officers then sought a search warrant for the hotel in nearby Williamstown. They learned that the defendant and his codefendant had rented room 102 at the hotel and that, thereafter, the codefendant had rented, in his name alone, a second room, room 107, for a party of two. A photocopy of the defendant's driver's license, and only the defendant's driver's license, was held by the hotel as the identification given for the latter room. In addition, the address that the codefendant gave when renting room 107 was 2162 Rayer, Bronx, New York; the address that the police recovered from their database for the defendant was 2172 Ryer Street, also in the Bronx. Finally, while the police never used the key seized from the defendant to open the hotel room, no key was seized from the codefendant.
In a safe in room 107, the officers found bags containing a total of approximately 135 grams of cocaine and $17,020 in cash, mostly in $20 bills. Also, on one of the two beds in the room, they found '[m]ultiple money orders with Darnell Sumlin's name on it.' One of the money orders indicated that 'Darnell Sumlin' had transferred money at the Big Y, on Veteran's Memorial Drive in North Adams, to Bernadette Graves, of the Bronx. A backpack on a chair in the room contained rubber bands similar to those found with the money in the safe.
John LeClair, a North Adams police officer, who was experienced in drug investigations and who had been a member of the Berkshire County drug task force since 1999, testified, without objection, that money orders, or money transfers, were 'a way of getting the money away from the locations. They will send it to family, friends, wives, husbands. It's a way of pulling away any connection back to the money for investigations or for also in case people are robbed.' On cross-examination, LeClair agreed with defense counsel that Bernadette Graves was the defendant's mother, and that the money order was only for one hundred dollars, a small percentage of the total amount of money recovered.
The defendant first argues that the evidence was insufficient to link him to the cocaine and money found in the safe and necessary to sustain the trafficking charge; in his view, he was therefore entitled to a judgment of acquittal on the trafficking charge. We disagree.
''Proof of constructive possession requires the Commonwealth to show 'knowledge coupled with the ability and intention to exercise dominion and control.'' Commonwealth v. Boria, 440 Mass 416, 418 (2003), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). 'Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom.' Commonwealth v. Brzezinski, supra, quoting Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). 'Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.' Commonwealth v. Arias, 29 Mass. App. Ct. [613, 618 (1990), S. C., 410 Mass. 1005 (1991)], quoting Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976). 'While presence in an area where contraband is found 'alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] . . . presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.'' Commonwealth v. Arias, supra, quoting Commonwealth v. Brzezinski, supra at 409, 410.' Commonwealth v. Gonzalez, 452 Mass 142, 146 (2008).
Here, a rational jury could conclude beyond a reasonable doubt that the defendant shared room 107 with his codefendant; that both were involved in the distribution of crack cocaine; and that the defendant had the requisite knowledge, power, and intention to control the contents of the safe, which contained substantial amounts of cash and quantities of cocaine sufficient to sustain a conviction of trafficking.
The defendant also challenges LeClair's testimony regarding the use of money orders in drug trafficking on the ground that it was 'overly prejudicial,' and thus that the error in admission created a substantial risk of a miscarriage of justice. 'It is well established that 'trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases.' Commonwealth v. Miranda, [441 Mass. 783, 793 (2004)], citing Commonwealth v. Johnson, 413 Mass. 598, 604 (19992). The judge's decision to allow this type of evidence 'will be reversed only where the admission constitutes an abuse of discretion or error of law.' Commonwealth v. Johnson, 410 Mass. 199, 202 (1991).' Commonwealth v. Little, 453 Mass. 766, 768-769 (2009). Here, the role of money orders in drug trafficking is likely 'beyond the common store of knowledge of the average juror.' Ibid., quoting from Commonwealth v. Robinson, 43 Mass. App. Ct. 257, 259 (1997). We see no abuse of discretion.
Judgments affirmed.
By the Court (Green, Katzmann & Hanlon, JJ.),