Opinion
14-P-237
08-14-2015
COMMONWEALTH v. TROY M. MONTEIRO.
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
After a jury trial in Superior Court, the defendant was convicted of several drug and firearm offenses. The defendant moved for a required finding of not guilty, which was denied. He subsequently filed a motion to set aside the verdict, which was also denied. He now appeals. We reverse.
The convictions included conspiracy to distribute cocaine, conspiracy to distribute heroin, two counts of possession with intent to distribute cocaine, possession with intent to distribute heroin, use of a firearm in the commission of a felony, possession of a firearm without a firearm identification card, possession of ammunition without a firearm identification card, and receiving stolen property. The trial was bifurcated and in the second part, which was jury-waived, the judge found the defendant guilty of subsequent offenses for both counts of possession with intent to distribute cocaine and for possession with intent to manufacture, distribute or dispense heroin. He also found him guilty of being an armed career criminal.
When we review a denial of a required finding of not guilty, we view the evidence in the light most favorable to the prosecution, and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Kelly, 470 Mass. 682, 693 (2015), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). See also Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004).
The Commonwealth proceeded on a theory of constructive possession, thereby requiring proof of the defendant's knowledge of the contraband, coupled with his ability and intention to exercise dominion and control over it. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Proof of knowledge may be "established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1003 (2015), quoting from Brzezinski, supra. Here, even when viewing the evidence in the light most favorable to the Commonwealth, such knowledge was not demonstrated beyond a reasonable doubt.
The contraband included cocaine, heroin, drug paraphernalia, a gun, and ammunition. The gun was under the bed, within the frame. It was discovered after the police removed the mattress and box spring. The detective testified that the underside of the bed appeared to be used as storage, for items including backpacks, storage bins, and a key board. The gun could not be tested for fingerprints.
The evidence at trial was that the defendant was found in his girlfriend's family's home; there was no evidence that he had stayed there before. After searching the room, police recovered heroin, 6.83 grams of cocaine, drug paraphernalia, a firearm, and ammunition. There was no contraband in plain view, and the only items connecting the defendant to the apartment were his identification card, an undetermined amount of cash, and two cellular telephones (which were not definitively proven to be his), which were found on the night stand on the left side of the bed. Cf. Commonwealth v. Boria, 440 Mass. 416, 420 (2003), quoting from Commonwealth v. Pratt, 407 Mass. 674, 652 (1990) ("Contraband found in proximity to a defendant's personal effects may provide a link between a defendant and the contraband, if other evidence shows that 'the defendant has a particular relationship' to that location within the apartment"); Brzezinski, supra at 409-410 (sufficient evidence of constructive possession where defendant was located in his own residence where contraband was recovered, drugs were in plain view, $550 was recovered from the defendant's person, and the defendant ran into closet containing contraband when police entered). Moreover, although the defendant was lying on the floor next to the bed, presence alone is not enough to show constructive possession. See Sespedes, 442 Mass. at 102.
A digital scale was found in the top drawer of the nightstand. A plastic bag containing a white powdery substance was in the second drawer of the nightstand. The drawer also contained female clothing. A plastic bag containing four smaller bags containing white powder, and three bags containing tan powder, was found inside the pocket of a woman's jack in the closet. There was a purse on the right nightstand which contained a Dig-U-Weigh stand.
All that was in plain view was a box of glad plastic baggies and there were several bottles of Inositol, a white powder used as a dietary supplement, in the bathroom.
Furthermore, the cases relied on by the Commonwealth in claiming that there was sufficient evidence to prove constructive possession, are inapposite. In Dagraca-Teixeira, 471 Mass. at 1003, there was significant evidence linking the defendants to the apartment where the drugs were found, including their presence and personal documents (such as birth certificates and a baptismal certificate) in the bedrooms containing contraband, and one defendant possessed a key to the bedroom where contraband was recovered. Likewise in Pratt, supra, police recovered a significant amount of the defendant's personal effects from the residence where she lived which allowed the inference that the defendant constructively possessed the contraband. In both cases, the documents recovered are items typically stored in one's home, whereas here, the document recovered, namely the identification card, is typically carried on one's person.
In sum, the instant case is more similar to Sespedes, supra at 101, where there was no evidence indicating any long term presence by the defendant in the room with contraband. Here, as in Sespedes, the Commonwealth failed to introduce sufficient evidence that the defendant knew of the drugs and gun hidden in the drawers, closet, or under the bed. Id. at 100. All the Commonwealth demonstrated was that the defendant was found on the floor next to the bed, and his identification, phones, and money were on the nightstand in the room where the contraband was stored. Further, the contraband was not in plain view, "so that knowledge may be inferred." Id. at 100.
Contrast Brzezinski, 405 Mass. at 410; Pratt, 407 Mass. 652. "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." Suspedes, supra at 102.
There was also insufficient evidence to prove the conspiracy offenses, which require evidence "tending to show that [the defendant] made an agreement" with someone else to sell drugs. Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 562 (1998). Here, the Commonwealth did not present any evidence as to any agreement and the defendant's mere presence in the company of someone possessing contraband, without knowledge of that possession, is not enough to support the convictions. See Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 566 (1980).
Judgments reversed.
Verdicts and findings set aside.
Judgments for defendant.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 14, 2015.