Opinion
No. 10–P–1960.
2012-05-29
COMMONWEALTH v. Hector JIMENEZ–SIMO (and a companion case ).
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendants Hector Jimenez–Simo and Anthony Reyes were both found guilty of trafficking in cocaine in excess of 200 grams and possession of marijuana based primarily on drugs found within a television set in the back seat of Jimenez–Simo's car. The defendants raise various claims of error. We affirm.
The marijuana convictions were placed on file with the defendants' consent.
At the time of the arrest, Jimenez–Simo was driving the car, while Reyes was the passenger.
1. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we ask whether “viewing the evidence in the light most favorable to the Commonwealth, ‘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 from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (emphasis original). To prove constructive possession of contraband, the Commonwealth must show that the defendant had knowledge of the location of the contraband coupled with ability and intent to exert dominion and control over it. Commonwealth v. Owens, 414 Mass. 595, 607 (1993). The evidence presented that Jimenez–Simo constructively possessed the cocaine found in the television set in his car was strong. Jimenez–Simo had previously been observed making drug transactions from the same car and making countersurveillance maneuvers. A large amount of cash and a “cuff sheet,” a form of accounting typically used by drug dealers, were found in his possession when he was arrested. The apartment in which Jimenez–Simo lived was furnished with surveillance equipment and contained a drug cutting substance. Finally, drug paraphernalia and a safe were found in his bedroom. Based on this evidence, a rational jury could reasonably infer that Jimenez–Simo was in the business of drug dealing and constructively possessed the stash of drugs as a part of that business.
While the case against Reyes was weaker, there was sufficient evidence to convict him as well. Reyes moved into and lived in the same apartment as Jimenez–Simo and was frequently seen in Jimenez–Simo's car with him, including during drug transactions and countersurveillance maneuvers. Marijuana similar to that found in the television set was found on Reyes's person at the time of his arrest. Finally, Reyes's wallet and papers containing his name were found in a bag in the back of the car which also contained the antenna to the television set. Considering this evidence, a rational jury could find beyond a reasonable doubt that Reyes also constructively possessed the drugs.
2. Motion to suppress. Jimenez–Simo argues that the drugs should have been suppressed because the police did not have probable cause to obtain a search warrant for his car. He contends that the only evidence in the search warrant affidavit supporting probable cause was a single observation of a drug sale from the car. However, Jimenez–Simo ignores portions of the affidavit in which multiple confidential informants indicate that he used his car to pick up large quantities of cocaine from New York. Another portion states a confidential informant indicated Jimenez–Simo used his car to deliver and sell cocaine. The affidavit also indicates the police had made multiple observations of what appeared to be street level sales of narcotics from the car and countersurveillance maneuvers by the driver of the car. There can be no doubt that the “four corners of the affidavit” provided sufficient probable cause that drugs would be found there to allow for the issuance of a search warrant. See Commonwealth v. O'Day, 440 Mass. 296, 297 (2003).
The information obtained from these informants satisfy both the basis of knowledge and veracity prongs of the Aguilar–Spinelli standard for probable cause. See Commonwealth v. Upton, 394 Mass. 363, 374–375 (1985). The evidence from the informants was detailed, mutually corroborating, and corroborated by police investigation and surveillance. See Commonwealth v. Mendes, 78 Mass.App.Ct. 474, 482–483 (2010).
At the time the warrant was requested, the defendants had recently driven to New York, presumably to make such a purchase.
Jimenez–Simo's argument that the affidavit was not sufficient for the issuance of a warrant for the tracking of the location of his cell phone is based on a similar selective reading of the affidavit and is without merit.
3. Prior drug dealing activities. Jimenez–Simo argues that evidence of his prior drug dealing activities should not have been admitted at trial because the danger of its usage as character evidence substantially outweighed its probative value. See Mass. G. Evid. § 403 (2012), and cases cited. Whether this balance favors admission is within the sound discretion of the trial judge. Commonwealth v. Walker, 460 Mass. 590, 613 (2011). While the prosecution may not introduce evidence of prior bad acts to show the defendant had a propensity to commit the crime charged, such evidence may be admitted for other purposes, such as a pattern of conduct or knowledge. Commonwealth v. Holloway, 44 Mass.App.Ct. 469, 475 (1998). Commonwealth v. Irving, 51 Mass.App.Ct. 285, 292 (2001). See Commonwealth v. Walker, 442 Mass. 185, 202 (2004) (evidence of prior bad acts admissible to show course of conduct where they are sufficiently related in time, place, and form to charges being tried).
The evidence of Jimenez–Simo's prior drug dealing activities helped show a pattern of conduct in which he used his car for both drug dealing and bulk drug purchases from New York. This pattern of conduct supports the inference that, as is required to show constructive possession, he knew of and intended to control the large quantity of drugs found in his car when he was stopped soon after it had made a trip to New York. See Commonwealth v. Gollman, 436 Mass. 111, 115 (2002) (evidence of substantially similar prior drug deals by the defendant admissible to show intent to distribute); Commonwealth v. Leinbach, 29 Mass.App.Ct. 943, 945 (1990) (same); Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152–153 (1999) (evidence that same accomplices had worked in same style during prior conviction admissible to show method of operation); Commonwealth v. Mullane, 445 Mass. 702, 709–711 (2006) (evidence of prior similar prostitution operation at business owned by defendant admissible to show knowledge of prostitution operation at defendant's current business). It was within the trial judge's discretion to admit this evidence.
4. Admission of the wallet. Reyes argues that there was not a sufficient foundation for the admission of his wallet, found in the outside pocket of a black bag located in Jimenez–Simo's car. “The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” See Mass. G. Evid. § 901(a) (2012), and cases cited. Whether evidence is sufficiently authenticated to warrant admission is within the discretion of the trial judge. Commonwealth v. Figueroa, 56 Mass.App.Ct. 641, 646–647 (2002). Reyes argues that there was no testimony that the wallet was found in the outside pocket of the black bag. However, an officer testified that he had labeled the plastic bag in which the wallet was contained on the day on which he inventoried the black bag. The obvious inference from this testimony is that the officer labeled the plastic bag when he discovered it during the course of the inventory. Reyes's additional argument in essence is that the wallet could have been placed in the black bag sometime between his arrest and the inventory of the bag. This argument goes to the weight of the evidence, rather than its admissibility. There was no abuse of discretion.
5. Prosecutor's closing argument. Reyes argues that the prosecutor misstated the evidence in closing by indicating that the defendants would have been able to smell the marijuana in the television, that Reyes's wallet was found in the side pocket of the black bag, and that the marijuana found on Reyes came from the larger quantity of marijuana found in the television. These statements were all permissible, reasonable inferences that could be drawn from the evidence admitted at trial. See Commonwealth v. Miranda, 458 Mass. 100, 116 (2010). Likewise, the prosecutor did not suggest that she had personal knowledge of Reyes's guilt by arguing that Reyes provided security for Jimenez–Simo in his drug dealing business in exchange for, among other things, paying Reyes's rent. This was also a permissible inference based on the evidence presented at trial. See ibid. The prosecutor's argument is not rendered improper because it was not the only permissible inference from the evidence. See Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993).
Judgments affirmed.