Opinion
No. 11–P–1783.
2013-04-10
COMMONWEALTH v. Jose RODRIGUEZ (and five companion cases ).
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendants, Jose Rodriguez, Jose Cosme, and Maria Cosme, guilty of trafficking in cocaine, and committing the offense in a school zone. Rodriguez's motion for new trial was denied. All three defendants appeal.
Defendant Jose Rodriguez argues on appeal that the judge erred in (1) not granting his motion for a required finding of not guilty due to the insufficiency of the evidence, (2) admitting a photocopy of a label listing seven mail recipients taped to the mailbox at 75 McKnight Street in Springfield, and (3) excluding an electricity bill addressed to him at 89 Cambridge Street.
Defendant Jose Cosme argues, similar to Rodriguez, error in (1) not granting his motion for a required finding of not guilty, and (2) allowing in evidence both the mailbox label and two shipping labels addressed to him from the same address in Puerto Rico from which the cocaine was sent. Lastly, defendant Maria Cosme argues on appeal that the judge erred in (1) denying her motion for severance, and (2) denying her request for a mistrial due to the untimely disclosure of discovery.
The evidence was offered to show that mail was being sent from Puerto Rico to the defendant at 75 McKnight Street in the months preceding Inspector Daily's cocaine delivery. The judge's offer of a limiting instruction was rejected.
Given the similarity of name with Jose, we refer to her by her first name. No disrespect is intended.
Facts. In November, 2009, Postal Inspector Bryon Daily obtained a search warrant for a package being shipped from a fictitious address in Puerto Rico to Jose Rodriguez at 75 McKnight Street in Springfield. The Springfield address was identified during an ongoing investigation of drug contraband coming out of Puerto Rico. There had been several packages from Puerto Rico sent to that address.
Inside the package, Inspector Daily found “peanut shells for packing” and a box of baby wipes, which appeared to have already been opened and closed with tape. The baby wipes container housed four separate bundles of cocaine, weighing 489.45 grams of cocaine, with a street value of about $22,000 to $25,000.
Daily contacted State and Federal drug enforcement officers to coordinate the delivery of the parcel. On November 14, with police officers on surveillance, Daily, dressed as a postal worker, took the package to 75 McKnight Street, where he either knocked or rang the doorbell. After a few minutes, Maria answered it. Although she spoke “broken” English, she and Daily understood one another. Daily informed Maria that he had a package for Jose Rodriguez, to which she replied, “[I] was expecting a package and [I will] sign for the parcel delivery.” Maria signed a form acknowledging receipt and took it inside with her.
About fifteen minutes after the delivery, the police entered the apartment. As they entered, they found Maria and her boyfriend, Angel Pagan, on a mattress in the converted living room. They also found two children, a toddler and an older child about twelve to fourteen years old, sleeping in the room adjacent to the living room on the second floor. The officers continued their search and found Rodriguez and Cosme in the rear bedroom.
While the layout of the apartment is somewhat unclear, it appears that it had two floors and a basement. On the first floor, the living room had been converted into a bedroom with an air mattress on the floor and clothing. On the second floor, there was a living room area, a children's bedroom, a kitchen, and through the kitchen a door leading into a basement. At the rear of the apartment on the second floor was the bedroom where Cosme and Rodriguez were found.
Charges against Pagan were dismissed.
Discovered in the search of that rear bedroom were (a) on a shelf in the room, an empty white baby wipes container with a pink top, which was identical to the one containing the cocaine that was found in the basement; (b) on the same shelf, “blow outs,” a digital scale, and an envelope containing a January, 2009, H & R Block application for credit addressed to Jose Orlando Rodriguez at 11 Faremont Street and 89 Cambridge Street; (c) a MassHealth card in Jose Cosme's name in between the mattresses; (d) a second scale underneath the bed; (e) a letter addressed to Jose Rodriguez at 75 McKnight Street in a suitcase on the floor; (f) in the pocket of a jacket hanging behind the door, a U.S. passport, a social security card, and a credit card in the name of Jose Cosme, and a letter from the Executive Office of Health and Human Services Office of Medicaid addressed to Jose Rodriguez at 75 McKnight Street; and (g) another letter addressed to Jose Rodriguez at 75 McKnight Street. There was no paperwork in the bedroom naming anyone other than defendants Rodriguez and Cosme.
Officer Williams testified that a “blow out” is a plastic bag with the corner cut off and that, in his experience as a narcotics officer, cut-off portions of plastic bags are used to package cocaine.
Scales play an important role in distributing cocaine. When distributing cocaine, a dealer will produce a scale in order to “ensure that [the client] is getting the right amount for [the] money.”
The basement was also searched, and tucked into an opening in the back of the dryer, a baby wipes container with a pink top identical to the one found in the rear bedroom was recovered. Upon opening the container, the cocaine was discovered.
Sufficiency of the evidence. Under the governing standard, Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979), we review the case to determine whether a rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing reasonable inferences therefrom, could find that each element of the crime was proved beyond a reasonable doubt.
The Commonwealth was required to prove that the defendants had “knowledge coupled with the ability and intention to exercise dominion and control [of the drugs].” Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498 (1984). “Knowledge ‘may be, and generally is, proved by circumstantial evidence; and it may be inferred from a great variety of circumstances.’ “ Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 426–427 (1985), quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 273 (1944). While presence alone in the area where contraband is found is insufficient to demonstrate the requisite knowledge and intent to control the contraband, “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ “ Commonwealth v. Brzezinski, supra at 409–410, quoting from Commonwealth v. Albano, 373 Mass. 132, 133 (1977). “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.” Commonwealth v. Boria, 440 Mass. 416, 419 (2003), quoting from Commonwealth v. Pratt, 407 Mass. 647, 652 (1990).
At trial, the Commonwealth sought to connect both male defendants to 75 McKnight Street. Concerning Rodriguez, evidence was introduced that he was in the rear bedroom of the apartment, and in that bedroom, instrumentalities of the drug trade (many of which were in open view) were scattered throughout the room along with documents, some in close proximity, bearing his name. Additionally, the cocaine package had been addressed to him, and his name, along with many others, was on a label on the front door.
On a shelf in that back bedroom, in the same area next to one of the scales and blow outs, was an envelope containing Rodriguez's personal signed documents. Moreover, a suitcase on the floor contained an October 10, 2009, postmarked envelope addressed to “Jose Rodriguez” at 75 McKnight Street.
There was also sufficient evidence that proved defendant Cosme had more than a casual connection with the apartment. See Commonwealth v. James, 30 Mass.App.Ct. 490, 494 (1991). Not only was he there when the police executed the warrant, but his name was also listed on the mailbox label, and correspondence had been sent to him at that address. In fact, such correspondence included two other packages from the same city and zip code in Puerto Rico, addressed to Cosme at 75 McKnight Street three months prior to the execution of the warrant. Additionally, in the back bedroom, the police officers found Cosme's Massachusetts Health card in between the mattress, his personal papers, and a credit card, social security card, and passport, which were in the pocket of a jacket hanging behind the bedroom door.
There were four mailing labels addressed to 75 McKnight Street. Three of those labels were sent from the same city and zip code in Puerto Rico. The fourth label addressed to Rodriguez originated from a different city in Puerto Rico.
This evidence, taken as a whole, permits inferences that both Rodriguez and Cosme had constructive possession of the cocaine because, “while each additional incriminatory or ‘plus' factor taken alone may vary in terms of persuasive force, ‘when combined ... [they] add up sufficiently to allow a jury to find’ that the scale was tipped in favor of finding constructive possession of cocaine.” Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 325 (2010), quoting from Commonwealth v. Maillet, 54 Mass.App.Ct. 910, 911 (2002). See Commonwealth v. Lee, 2 Mass.App.Ct. 700, 704 (1974) (defendant's papers, including mail addressed to defendant at address, and men's clothing found in the same apartment as the drugs and paraphernalia, supported finding of constructive possession). Hearsay. We now turn to the claims of Cosme and Rodriguez that a mailbox label and shipping labels listing their residence as 75 McKnight Street should not have been admitted.
We realize that the drugs were found in the dryer. However, given the amount of drug paraphernalia in the bedroom, along with the similarity of the baby wipes container in the bedroom and the one containing the drugs, knowledge and constructive possession are permissibly inferable.
It appears that such evidence is admissible to indicate a connection with a dwelling. In any event, as already documented, there was a host of other evidence connecting both defendants to the apartment. See, e.g., Commonwealth v. Boria, 440 Mass. at 420;Commonwealth v. Gonzalez, 23 Mass.App.Ct. 990, 991 (1987).
Thus, Rodriguez should also have been permitted to offer the electric bill addressed to him at 89 Cambridge Street. However, any error in the omission of this evidence was harmless in light of the totality of the evidence. Furthermore, since other evidence of Rodriguez's ties to 89 Cambridge Street was admitted, there was no prejudice.
Severance. Lastly, we turn to the claims raised by defendant Maria Cosme. The defendant argues that she was prejudiced when Rodriguez's counsel in his opening unexpectedly stated that Rodriguez would testify and, in so doing, would implicate her while exculpating himself. As such, she contends that by denying her motion to sever, the trial judge deprived her of a fair trial.
The relevant statement by Rodriguez's trial counsel was as follows: “Maria Cosme came to the door and she took the package and said, quote, ‘I was waiting for this package.’ Ms. Cosme signed for the package using her own name and brought it into the house. And the evidence in this case will show that she brought the package inside the house, brought it into the kitchen, put it on the kitchen table, opened it up, took out the baby wipes container and went downstairs to the basement of the apartment. She went behind the dryer and put the baby wipes container in a vent right behind the dryer. And all the while Jose Rodriguez, the straw man, slept.”
As Rodriguez, in fact, did not testify, Maria's fears never came to fruition. Additionally, the trial judge gave a pointed limiting instruction.
“[D]uring the opening statements you may have heard one of the attorneys indicate that one of the defendants, Maria Cosme, opened the box, took out the cocaine and hid it in the basement. I can tell you that there was no such evidence introduced. And as I explained to you at the beginning, and I'm explaining it to you now at the end, opening statements are not evidence and you must not consider anything said during the openings or the closings as evidence. The evidence is what you remember that was produced during this trial through witnesses and exhibits, and that's the only thing that you may consider in this case.”
Mistrial. Next, Maria argues that she was prejudiced by the late disclosure of significant investigation notes taken by the Commonwealth's witness.
In order to justify a mistrial where the disclosure of evidence by the prosecution is delayed, “there must be a showing of prejudice by defense counsel and a demonstration of ‘how the granting of a new trial would substantially remedy such prejudice.’ “ Commonwealth v. Costello, 392 Mass. 393, 398 (1984), quoting from Commonwealth v. Cundriff, 382 Mass. 137, 151 (1980), cert. denied, 451 U.S. 973 (1981). When assessing prejudice, “it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant ‘to make effective use of the evidence in preparing and presenting his case.’ “ Commonwealth v. Wilson, 381 Mass. 90, 114 (1980), quoting from Commonwealth v. Adrey, 376 Mass. 747, 755 (1978).
During the trial, prior to the examination of Inspector Daily, the Commonwealth provided Daily's notes to Maria's counsel. Those notes were a review of the events that had taken place the day Daily delivered the package to the defendant. The notes did not contain any mention of the alleged comment made by Maria, “I was expecting that.” Consequently, the defendant argues that had those notes been available earlier, she would have changed her defense strategy.
We start with the observation that Maria has not indicated how in fact her trial strategy would have changed. Regardless, counsel, armed with this information, cross-examined the witness on this very point. See Commonwealth v. Costello, 392 Mass. at 398. Additionally, during the cross-examination of Daily, the defendant was successful in securing his admission that, not only was the statement not in his notes, but he failed to so testify before the grand jury. Counsel not only emphasized these points in her closing, but had the opportunity to re-call Inspector Daily to again inquire.
Obviously, counsel had secured the grand jury information well in advance of trial and was prepared to use it.
The judge observed that counsel had the notes, which she used during cross-examination. The judge also made an offer to have Daily brought back and examined again, if counsel thought more time was needed. The offer was declined.
Judgments affirmed.
Order dated June 23, 2011, denying motion for new trial affirmed.