Opinion
18-P-402
09-05-2019
COMMONWEALTH v. RICKEY E. EDWARDS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Rickey E. Edwards, appeals from his convictions, after a trial by jury, of possession with intent to distribute marijuana and a park zone violation. See G. L. c. 94C, §§ 32C (a), and 32J. On appeal, the defendant challenges the judge's pretrial ruling amending the complaint, the admission of prior bad act evidence, the sufficiency of the evidence at trial, and the judge's failure to instruct the jury that proof of a park zone violation under G. L. c. 94C, § 32J, requires that the defendant had knowledge that he was within a park zone. We affirm.
The case against the defendant arises out of the execution of a search warrant on September 18, 2015, for a home located at 15 Fuller Street in Everett. The single family residence consists of two floors and a basement. On that date, the house was owned by Melissa Gale who had lived there for eleven years. Other residents were Gale's elderly mother, Gale's niece, and a codefendant, Dimitri M. Duvinard. The police found the defendant and another male sitting in chairs in a second-floor bedroom. Duvinard was in the same room in a bed with a female. From the room in which the defendant was found, the police seized two digital scales, individually wrapped bags of marijuana, a paper bag in which there was marijuana (located on the floor next to where the defendant sat), mason jars in which marijuana was hidden, sandwich bags and loose cellophane bags, $1,145 in cash, an empty Smith and Wesson firearm magazine, a black firearm carrying case, and packaging consistent with heat-sealed bags. In the other second-floor bedroom, the police seized a .44 caliber handgun containing two rounds, digital scales, a pair of jeans containing marijuana and $700 in cash, the defendant's birth certificate, and a bill with the defendant's name on it.
This panel previously affirmed the convictions of Duvinard in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Duvinard, 95 Mass. App. Ct. 1106 (2019).
The defendant argues that the judge erred by allowing the Commonwealth's pretrial motion to amend the complaint. Count two of the complaint contained a caption that described the offense ("Drug Violation Near School/Park c94C § 32J"). See Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 459, S.C., 430 Mass. 517 (1999) (caption of charging document may shed light on nature of charge). The body of count two also included language that informed the defendant that the offense charged involved an additional penalty, in the form of a from and after sentence, beyond the penalty charged in count one. However, for reasons that are not explained, the body of count two did not include any language further defining the conduct that constituted the offense. As a result of the amendment, the following language was added to the body of count two: "while in or on, or within one hundred feet of a public park or playground shall be punished by a term of imprisonment."
The complaints against the codefendants charging the same offense contained the complete statement of a § 32J offense.
Under Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979), a judge is authorized to "allow amendment of the form of a complaint or indictment if such amendment would not prejudice the defendant." Although the defendant asserts that he was prejudiced by the amendment, he fails to provide a basis for his claim. There is no confusion about what crime the defendant was charged with in count two because the application for a criminal complaint states that he "was charged with possession with intent Class D, park zone violation (Fuller St Park)." We agree with the Commonwealth that the amendment was one of form and not of substance because neither the charge nor the potential penalty faced by the defendant changed as a result of the amendment.
The judge did not abuse his discretion by allowing the Commonwealth's pretrial motion in limine to admit prior bad acts in the form of officer testimony and surveillance photographs indicating that the defendant engaged in drug distribution activities at 15 Fuller Street during the month prior to the execution of the search warrant. The evidence had significant probative value with regard to the defendant's knowledge of the presence of drugs and his intent to distribute them, which were the central issues in the case. See Commonwealth v. Gollman, 436 Mass. 111, 114-115 (2002). When prior bad act evidence close in time to the date of the offense bears directly on the central issues in a case, the value of admitting it is not outweighed by the danger of unfair prejudice. See Commonwealth v. Caine, 366 Mass. 366, 371 (1974).
There is furthermore no substantial risk of a miscarriage of justice because the judge's detailed instruction on the limited use that the jury could make of the prior bad act evidence was not given until the final instructions. The defendant did not request a contemporaneous instruction, and one is not mandatory. We presume that juries follow judges' instructions. See Commonwealth v. Chubbock, 384 Mass. 746, 753 (1981).
With regard to the sufficiency of the evidence, the defendant argues that the Commonwealth's case, which was based on the theory of constructive possession, failed because the defendant did not live at 15 Fuller Street and because the marijuana found during the execution of the warrant was not found on his person or in his backpack. In order to prove that the defendant had constructive possession of the marijuana, the Commonwealth was required to prove that the defendant had knowledge of the presence of the marijuana along with both the ability and the intention to exercise control over it. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). There was evidence that the defendant was a frequent visitor to 15 Fuller Street and that he possessed and smoked marijuana with the two codefendants while in the upstairs bedroom. He was observed on two occasions within one month of his arrest engaging in what police witnesses described as drug distribution activities outside 15 Fuller Street. When the search warrant was executed, the defendant was in the bedroom where the majority of the marijuana was found and was in close proximity to some of it. In the other bedroom in which marijuana was found, the police found the defendant's birth certificate and other personal papers purporting to belong to him. Detective James Hyde of the Somerville Police Department, who was at the time on assignment with the Federal Drug Enforcement Administration, testified that the marijuana and other items such as digital scales and packaging material found at 15 Fuller Street were more consistent with the distribution of marijuana than with personal use. This evidence taken together supplied the jury with an ample basis for a finding that the defendant had constructive possession of the marijuana found at 15 Fuller Street. See, e.g., Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986).
The defendant's final argument is that, as a result of a 2018 amendment to G. L. c. 94C, § 32J, the Commonwealth was required to prove that the defendant had actual knowledge that his drug distribution offense was committed within one hundred feet of the Fuller Street Park. Because the judge did not instruct the jury on the requirement of actual knowledge, the defendant contends that his conviction under § 32J must be reversed. This issue is currently pending before the Supreme Judicial Court. See Commonwealth vs. Matta, Supreme Judicial Ct., No. 12693. This panel considered this question in the appeal of a codefendant in this matter, see note 1, supra, and concluded there, as we do in this case, that even if the Matta case is decided as the defendant maintains it should be, he will not reap any benefit from it because we can say with confidence that if the jury had been instructed that the Commonwealth had to prove actual knowledge, the evidence would have compelled the jury to find that the defendant was aware that his illegal activities were within one hundred feet of the park that was only fifty-three feet away from the front steps of 15 Fuller Street. See Commonwealth v. Azar, 435 Mass. 675, 688 (2002); Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 412 (2019).
Judgments affirmed.
By the Court (Hanlon, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 5, 2019.