Opinion
18-P-1205
09-16-2019
COMMONWEALTH v. David WOODWORTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of possession of cocaine with intent to distribute, see G. L. c. 94C, § 32A, and possession of oxycodone, see G. L. c. 94C, § 34. On appeal, he contends that (1) there was no probable cause to support the issuance of a search warrant for his house; (2) evidence at trial of his offer, during the search, to contact his supplier and set up a drug buy was unduly prejudicial; (3) his statements to the police during the search were involuntary; and (4) the Commonwealth did not adduce sufficient evidence to support his convictions. We affirm.
The trial judge found the defendant guilty of the subsequent offense portions of the indictments.
Discussion. 1. Search warrant. A search warrant may issue upon a finding of probable cause that "the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). A warrant may issue for a multiunit building if the warrant application shows "all the building's subunits are available to building occupants." Commonwealth v. Erickson, 14 Mass. App. Ct. 501, 504 (1982).
Our review on the four corners of the warrant is de novo. Commonwealth v. Tapia, 463 Mass. 721, 725 (2012). However, we read applications for warrants as a whole and draw all reasonable inferences in considering whether probable cause was established. See Commonwealth v. Donahue, 430 Mass. 710, 712 (2000), and cases collected.
The defendant asserts that the search warrant, which authorized the search of a two-unit residence at 40 Flint Street in Lynn, lacked probable cause to believe that drugs could be found in the left-hand unit, where the defendant claims he resided. We disagree.
Despite its two-unit configuration, records showed that the defendant, his brother, and others treated both units as one household. The utilities were in the defendant's mother's name only and showed one account for both units. In addition, both the defendant and his brother had Registry of Motor Vehicles and board of probation records, in which they each listed the 40 Flint Street address without specifying a particular unit for either of them. See Commonwealth v. Dew, 443 Mass. 620, 625-626 (2005) (search warrant for entire multiunit dwelling appropriate when all residents related, they treated it as single compound, and police reasonably believed defendant had access to all units).
Furthermore, the application supported a reasonable inference that the two brothers were working together to sell drugs. The application indicated that a confidential informant told the police that the defendant headed the drug distribution operation emanating from 40 Flint Street and, in the two controlled buys arranged by the confidential informant calling the defendant's cell phone, the defendant told the informant "that he would be sending his brother to deliver the cocaine," and the brother then delivered it. The brother was also seen exiting and entering the home. On this basis, the police reasonably could believe that both brothers were involved in distributing the drugs and that they would conceal the contraband wherever in the house either of them resided or had access. Cf. United States v. Ross, 456 U.S. 798, 820 (1982) (search warrant allows search of fixed premises wherever "object of the search may be found"). It was reasonable to infer that drugs could be found any place to which either of the two had access. Id. Accordingly, we discern no error in the determination of probable cause to believe that drugs and drug evidence could be stored anywhere in the two-family residence.
The defendant attacked the veracity of the confidential informant at oral argument but did not do so in his brief. Although we need not address this issue, see Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629-1630 (2019), we note that the controlled buys, see Commonwealth v. Perez, 87 Mass. App. Ct. 278, 281 (2015), and the facts that the police knew the confidential informant's name, date of birth, address, and telephone number all support the confidential informant's veracity, see Commonwealth v. Costa, 448 Mass. 510, 515-516 (2007).
2. Subsequent bad act. The defendant challenges the judge's admission of his offer to police, in exchange for leniency, to contact his supplier. He contends that this was improper subsequent bad act evidence that should have been excluded. We disagree.
Contrary to the defendant's assertions, the Commonwealth did not offer this evidence to show the defendant's propensity for criminality but rather for its probative value of establishing the defendant's knowledge of the drugs and his intent to distribute them. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) (so long as not substantially more unfairly prejudicial than probative, other bad act evidence admissible to show "absence of mistake or accident ... [or] intent").
The statements went to the central issue at trial: whether the defendant possessed the drugs that the police found in his apartment, and there is no indication that the Commonwealth unfairly used these statements. Contrast Commonwealth v. Brusgulis, 406 Mass. 501, 505-507 (1990) (admission of prior sex assaults that lacked any unifying signature in trial of particular sex assault unfairly prejudicial). The jury were given a proper limiting instruction. We discern no abuse of discretion.
3. Voluntariness. The defendant next contends that three statements to the police during the search were involuntary and therefore inadmissible. The defendant did not file a pretrial motion to suppress these statements, did not request a voir dire at trial, and does not on appeal claim ineffective assistance of counsel. Accordingly, we review any error for a substantial risk of a miscarriage of justice.
The statements in question are (1) telling police where they could find a digital scale, (2) stating that he was not employed after police discovered a large amount of cash, and (3) offering to cooperate by calling his supplier to order drugs.
"Where the voluntariness of a defendant's statement is a live issue, such that evidence of ‘a substantial claim of involuntariness’ is produced, a trial judge must conduct a voir dire on the question of voluntariness even though no such request has been made by defense counsel." Commonwealth v. Sheriff, 425 Mass. 186, 193 (1997), quoting Commonwealth v. Brady, 380 Mass. 44, 49 (1980). The judge must also instruct the jury that they must find beyond a reasonable doubt that the defendant voluntarily made any admitted statements. Commonwealth v. Kolenovic, 478 Mass. 189, 198-199 (2017).
Here, defense counsel only mentioned the issue in passing during a sidebar conference. Although the judge should have conducted a voir dire and made a ruling on the question of voluntariness, see Commonwealth v. McCauley, 391 Mass. 697, 703-704 (1984), his decision to instruct the jury under the humane practice rule implies that he found the statements to be voluntary. We would "reverse[ ] a conviction because of the absence of a sua sponte inquiry only where there is a claim of involuntariness far more substantial than this." Commonwealth v. Murphy, 426 Mass. 395, 398 (1998). Moreover, the jury were properly instructed on the Commonwealth's burden to prove voluntariness beyond a reasonable doubt, and the jury had ample evidence to find that the defendant spoke voluntarily. The arresting officer testified that he gave the defendant warnings pursuant to Miranda immediately upon entering the house, the defendant was nervous but not extraordinarily so, and he was not under the influence of any drugs or alcohol. The jury were also free to disregard testimony from the defendant's brother that the police threatened to arrest the defendant, his brother, and his mother and to confiscate their house. See Piemonte v. New Boston Garden Corp., 377 Mass. 719, 733 (1979) (fact finder not obliged to accept even uncontroverted evidence). Even if error, there was no substantial risk of a miscarriage of justice.
Miranda v. Arizona, 384 U.S. 436 (1966).
--------
4. Sufficiency. Finally, the defendant contends the evidence did not support a conviction. We are not persuaded.
We review challenges to the sufficiency of the Commonwealth's evidence at trial by viewing it in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Perez, 460 Mass. 683, 702 (2011), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Here, the Commonwealth had to prove that the defendant "knowingly or intelligently" possessed the cocaine and oxycodone found in his apartment, and that he intended to distribute the cocaine. G. L. c. 94C, §§ 32A, 34. Because the defendant did not actually possess the drugs, the Commonwealth had to prove constructive possession, which is "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984).
Although the defendant at first told police that he did not know where the drugs were in his apartment, this statement suggested that he knew they were nearby. The defendant's subsequent offer to contact his supplier for the police evidenced his involvement with drugs. The three scales, the roll of sandwich bags, and the large amount of cash found near the cocaine are also classic indicia of distribution. See Commonwealth v. Vasquez, 456 Mass. 350, 366-367 (2010). Together this evidence sufficiently established the defendant's involvement in drug distribution and the defendant's intent and ability to control the drugs. Evidence that the defendant's brother was also involved does not require a contrary conclusion. "Possession need not be exclusive but may be joint, and such joint possession may be proved by circumstantial evidence." Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974). We discern no error.
Judgments affirmed.