Opinion
22-P-286
01-04-2023
COMMONWEALTH v. KEVIN TERRERO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kevin Terrero, pleaded guilty in Superior Court to armed assault with the intent to murder, G. L. c. 265, § 18 (b); aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c0 (i); carrying a firearm as an armed career criminal, G. L. c. 269, § 10G (a.); carrying a dangerous weapon as a subsequent offense, G. L. c. 269, § 10 (b), (d); and discharging a firearm within five hundred feet of a building, G. L. c. 269, § 12E. The plea judge imposed fifteen years of probation on the armed assault and committed sentences on the other charges. After he was released, the defendant was found in violation of his probation, and a different judge imposed a State prison sentence. The defendant now appeals from the judge's order revoking his probation. Concluding that the violation judge acted within her discretion in finding the 911 call was substantially reliable and that that there was adequate evidence of constructive possession of a firearm to support the finding of a probation violation, we affirm.
1. Substantial reliability of hearsay.
To determine whether hearsay evidence bears "substantial indicia of reliability," a judge may consider several nonexclusive factors "on the question of trustworthiness and reliability." Commonwealth v. Patton, 458 Mass. 119, 132 (2010), quoting Commonwealth v. Purling, 407 Mass. 108, 118 (1990) . We review the judge's assessment for an abuse of discretion. See Commonwealth v. Ogarro, 95 Mass.App.Ct. 662, 668 (2019).
Here, the violation judge acted within her discretion in finding that the statements in the 911 call were substantially reliable. First, the caller's statements were supported by her direct observation of the defendant in the hotel parking lot. See Ogarro, 95 Mass.App.Ct. at 669. Second, the statements were made close in time to when the caller observed the defendant. See Patton, 458 Mass. at 121-122; Commonwealth v. Nunez, 446 Mass. 54, 59 (2006).
We have listened to the 911 call, which was admitted as an exhibit at the probation violation hearing.
Third, the caller's statements were specific and factually detailed. The caller described the defendant's physical appearance, including his hairstyle, tattoos, and clothing. She also described the make, model, and color of the defendant's motor vehicle and indicated that it had Virginia license plates. See Patton, 458 Mass. at 134 (statement "contain[ing] specific factual details" supported finding of substantially reliable hearsay). Fourth, the statements in the 911 call were corroborated by the police sergeant's observations when he arrived on scene. See Nunez, 446 Mass. at 56, 59; Commonwealth v. Henderson, 82 Mass.App.Ct. 674, 677-678 (2012) . Accordingly, the violation judge acted within her discretion in concluding that the statements in the 911 call were substantially reliable.
In any event, the judge stated that she "[did] not rely[] solely on the statements in the 911 call for [her] findings and rulings." See Commonwealth v. Leopold L., 96 Mass.App.Ct. 796, 802 (2020) ("this is not a case where probation revocation rested entirely on hearsay; indeed, the principal investigating officer testified at the hearing").
2. Constructive possession of the firearm.
At a probation violation hearing, "[t]he Commonwealth must prove a violation of probation by a preponderance of the evidence." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). Here, the primary violation found was unlawful possession of a firearm, established on a theory of constructive possession. "To establish constructive possession, the Commonwealth must prove a defendant's (a) knowledge of the contraband; (b) ability to control it; and (c) intention to exercise control over it." Commonwealth v. Crapps, 84 Mass.App.Ct. 442, 444 (2013). "Proof of possession of [contraband] may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Although the presence of contraband in the same automobile as the defendant is insufficient by itself to prove possession beyond a reasonable doubt, "[p]resence in the same vehicle supplemented by other incriminating evidence . . . may suffice to show knowledge or intent to control." Commonwealth v. Sinforoso, 434 Mass. 320, 327 (2001), quoting Commonwealth v. Garcia, 409 Mass. 675, 687 (1991) .
Here, the Commonwealth presented adequate evidence that the defendant constructively possessed the firearm recovered from the glovebox. See Commonwealth v. Summers, 93 Mass.App.Ct. 260, 262 (2018). A police sergeant testified that, when he arrived on scene, the defendant was "standing next to the Dodge. ... at the passenger side door with the door open," in close proximity to the glovebox. See Id. at 261, 263 ("The backpack [containing a firearm] was a mere two to three feet from the defendant, well within his reach").
When the sergeant approached the Dodge, the defendant closed the passenger side door and began to walk away, suggesting that he knew the firearm was there. Cf. Commonwealth v. Morris, 465 Mass. 733, 738-739 (2013) (inference of "consciousness of guilt" when defendant fled). Upon opening the glovebox, the sergeant discovered a firearm concealed in a sock under an envelope addressed to the defendant. See Commonwealth v. Boria, 440 Mass. 416, 420 (2003) ("Contraband found in proximity to a defendant's personal effects may provide a link between a defendant and the contraband"). Cf. Commonwealth v. Delarosa, 50 Mass.App.Ct. 623, 628 (2000) (no evidence suggesting "a personal connection between the defendant and the room in which the stash was located").
Without saying anything, the sergeant placed the firearm, still concealed in the sock, on the front passenger seat. When the officer then started to arrest the defendant, the defendant spontaneously stated, "that's not even mine." Cf. Commonwealth v. Santana, 95 Mass.App.Ct. 265, 270 (2019) (no reasonable inference "that the defendant had knowledge of the cocaine . . . . [where] [t]he defendant reacted to seeing the cocaine at the same time the officer did"). Although a different officer testified that the defendant disclaimed ownership of the gun only after he was advised that the firearm had been found, the judge was free to credit the sergeant's testimony. See Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50 (2002) ("Assessing the weight and credibility of the evidence was within the judge's exclusive province"). In sum, there was adequate evidence to support the violation judge's finding by a preponderance of the evidence that the defendant violated the terms of his probation.
Order revoking probation affirmed.
Wolohojian, Ditkoff & Walsh, JJ.
The panelists are listed in order of seniority.