Opinion
18-P-1591
07-08-2020
COMMONWEALTH v. AUGUSTO D. MOREIRA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A jury convicted the defendant of trafficking thirty-six grams or more but less than one hundred grams of heroin, unlawful possession of a firearm without a firearm identification (FID) card, and unlawful possession of ammunition without an FID card. The defendant argues on appeal that the Commonwealth failed to prove beyond a reasonable doubt that he possessed the heroin, firearm, and ammunition. We agree and therefore reverse.
After a subsequent bench trial, the judge convicted the defendant of two counts of being an armed career criminal. See G. L. c. 269, § 10G (b).
Given our ruling, we do not address the defendant's remaining contentions.
Background. Around 5 P.M. on November 26, 2013, police executed a search warrant on an apartment with four floors including a basement. Some officers assembled at the front door while others went to the back. Those heading to the back saw a man open the rear door that led from the basement to the outside; the man closed the door and returned inside when the officers identified themselves. The officers kicked the rear door open and entered the basement, while the officers entering via the front door made their way downstairs.
There were four or five men in the basement, including the defendant. The police ordered them to the ground, informed them of the search warrant, and began securing them. The defendant, who was near the back side of a flight of stairs, was soon handcuffed and searched. There was a cell phone in the defendant's hand and another telephone described as a "flip phone" near him, which, according to expert testimony, was a type of inexpensive "burner" phone commonly used to conduct drug business. The defendant had $279 and car keys in his pants pocket.
Police estimates of the number of men in the basement varied. Based on the individual identifications of the men handcuffed and searched, it appears that there were five men total, including the man who tried to exit via the rear door.
The keys were later determined to belong to a car rented by the defendant's friend after a car accident. An expert testified that drug dealers often use rental cars to avoid detection.
After securing all of the occupants, the police searched the basement and found a box of sandwich bags on a coffee table, along with an opaque shopping bag containing cutoff sandwich bags. In a television stand, the police found two digital scales, one of which had powder residue on it, a box of sandwich bags, and scissors.
One officer searched a storage area under the stairs where there were stacks of boxes containing clothing. He saw a plastic bag "tied off in a knot with other bags inside of it," "[o]n top of the stack of clothes to the rear." The bag was not covered by anything, but the officer had to "reach over to secure it." One of the bags inside the larger bag contained 30.12 grams of heroin, and eight others contained 7.09 grams of heroin in total.
Ana Rodrigues, who lived in the apartment, testified that this storage area contained "[s]tuff [that she did not] use all the time," such as clothes and holiday decorations, and that two long curtains divided and covered the area when drawn.
There were seventeen additional small knotted bags. These bags weighed 7.61 grams, including packaging.
As the officer continued to search the storage area, he saw a gun and magazine "along the right side of the wall as [he was] looking in between the boxes and the wall, slid[e] down." He had to reach in the "slot" between the wall and boxes to retrieve the items. The gun and magazine, which contained ammunition, were located a few feet away from where the officer found the heroin. The gun was later determined to be a working firearm.
Police also found two guns, ammunition, and $1,740 in cash in an upstairs bedroom. The defendant was not charged in connection with these items.
While other officers searched the basement, State Police Troopers Paul Wolfe and Scott Dunn escorted the handcuffed defendant upstairs. Wolfe was in front of the defendant, and Dunn was behind him, as they went up. Once they were in the kitchen, the defendant told Wolfe that he found and occasionally used the "flip phone" that was near him, and that the other cell phone that he had been holding was his. The defendant denied knowing who the guns or drugs found in the apartment belonged to, but asked what would happen to Ivanir Freire, a young man who had been in the basement, saying that he was a "good kid" and "had nothing to do with this." When Wolfe asked what he meant, the defendant replied, "You know."
At some point after escorting the defendant to the kitchen, Dunn returned to the basement. When he "went back up the stairs," he noticed, for the first time, a bag containing three smaller bags on the stairs. The three smaller bags were later determined to contain 0.84 grams of heroin.
Trial testimony established that the apartment was home to Ana Rodrigues, her children, and her nephew, Freire. Various witnesses described the basement as a "hang out" area where people would socialize, drink, and play video games, with many people coming and going. Rodrigues and Freire both testified that the rear door leading to the basement was "always open."
Rodrigues further testified that, about two to three months before the search warrant was executed, the defendant was having problems with his girlfriend and asked to stay with Rodrigues for a few days. Rodrigues agreed, and the defendant stayed in the basement "[o]ff and on" from September to November 2013. The defendant did not have a key to the apartment, and there was no evidence that any of his personal effects, such as clothes or a toothbrush, were found in the basement. Rodrigues also recalled seeing various other people sleeping in the basement at times, including her boyfriend, who was one of the men present when the police arrived.
Rodrigues testified that her boyfriend slept over two to three times a week, sometimes in an upstairs bedroom and sometimes in the basement.
Discussion. We view the evidence in the light most favorable to the Commonwealth to determine whether it "was sufficient to permit the jury to infer that the Commonwealth . . . met its burden of proving the essential elements of the crimes charged beyond a reasonable doubt." Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010). "The evidence must 'allow[] us to do more than find that there was some record evidence, however slight, to support each essential element of the offense.' Nor will the evidence be sufficient if it relies on conjecture or speculation, or if it tends 'equally to support either of two inconsistent propositions.'" Id., quoting Corson v. Commonwealth, 428 Mass. 193, 197 (1998).
Here, because none of the contraband was found on the defendant's person, we must determine whether there was sufficient evidence to support the Commonwealth's theory of constructive possession. "To show constructive possession, the Commonwealth must show that the defendant knew of the existence of the item, and had the ability and intent to exercise dominion and control over it." Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019). It is well established that mere presence in the area where contraband is found is insufficient to establish constructive possession. See Commonwealth v. Boria, 440 Mass. 416, 418 (2003). Likewise, "[l]iving in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is not enough to prove constructive possession." Id. at 418-419. Rather, the evidence must establish a "particular link" between the defendant and the contraband. Commonwealth v. Proia, 92 Mass. App. Ct. 824, 831 (2018), quoting Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013). The Commonwealth can meet this burden "by linking the defendant to the particular area of the dwelling in which the contraband was found" or "by linking the defendant to the contraband via 'other incriminating evidence.'" Proia, supra, quoting Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989).
1. The heroin. With these principles in mind, we begin by assessing the sufficiency of the evidence that the defendant constructively possessed the heroin. The Commonwealth points to the following evidence: the defendant stayed "off and on" in the basement for two to three months; the scales and sandwich bags were in plain view in the basement; there was enough time to throw the heroin under the stairs before the police entered; after the defendant was taken to the kitchen, Dunn found three bags of heroin on the stairs; the defendant stated that Freire "had nothing to do with this"; and the defendant had $279 in cash, a "flip phone," and keys to a rental car. We assume, without deciding, that this evidence permitted the jury to infer that the defendant had knowledge of, and the ability to control, the heroin under the stairs. We conclude, however, that the evidence was insufficient to show the defendant's intent to control the heroin.
This is not a case where the jury could have inferred the defendant's intent to control by linking him to the particular area of the apartment where the heroin was found. "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." Boria, 440 Mass. at 420, quoting Commonwealth v. Pratt, 407 Mass. 647, 652 (1990). Here, although there was evidence that the defendant stayed in the basement "off and on," he did not have a key and none of his personal effects were found in the basement, let alone in proximity to the storage area under the stairs. Moreover, the defendant was not the only person who stayed in the basement; as the Commonwealth acknowledges, the evidence established that the basement was an accessible common area with many people coming and going, and with some occasionally sleeping there.
Nor does this case involve a "hustle house" situation, where a defendant's intent to control can be inferred from his presence in an apartment with "extreme" security and no "indications of the kinds of human activity that are suggestive of occupancy." Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 324 (2010). See Commonwealth v. Gonzalez, 452 Mass. 142, 148 (2008) ("sparse furnishings and barricades suggest[ed] that the apartment was primarily used for drug transactions"); Commonwealth v. Arias, 29 Mass. App. Ct. 613, 619 (1990), S.C., 410 Mass. 1005 (1991) ("There could hardly be more potent evidence of an intention by the defendants to exercise dominion and control of the premises and its contents than their presence at an early morning hour in a heavily barricaded apartment, sparsely furnished and in the absence of either the owner or the tenant"). While there were scales and sandwich bags in plain view in the basement, the evidence showed that the apartment was home to a family and that the basement was a "hang out" spot containing furniture and household items. Thus, unlike the "hustle house" line of cases, this case is not one where the jury could have inferred that "the apartment was primarily used for drug transactions, . . . suggest[ing] that all of those present were involved in the activity, not simply aware of it." Gonzalez, supra. Indeed, although there were three or four other men in the apartment -- one who tried to leave as police arrived, and another who was the boyfriend of a resident -- the Commonwealth did not pursue a joint venture theory at trial.
To the contrary, the Commonwealth argued in closing that the other men had no connection to any of the contraband found under the stairs.
This case is instead much like Commonwealth v. Brown, 34 Mass. App. Ct. 222 (1993). There, police executed a search warrant on a residence and encountered six or seven people, including codefendant Sharon Brown. See id. at 223-224. Brown was in the living room, where there were two bags of cocaine in plain view. See id. at 224-225. In the kitchen the police found a bag containing over forty grams of cocaine, smaller bags of cocaine packaged for distribution, "two boxes of baggie sandwich bags, a bag filled with cut off corners of such sandwich bags, an electronic scale, a strainer with white powder residue on it, and . . . a substance used to 'cut' cocaine for an ultimate consumer." Id. at 224. The police also found a small bag of cocaine in one of the two bedrooms. Id. Brown lived in the apartment, which was heavily barricaded, had personal belongings and papers there, and, "[i]f she had eyes, . . . must have been aware of the drug dealing." Id. at 225-226. Nonetheless, we concluded that the evidence did not establish Brown's intent to control the drugs, given that she did not have a key to the apartment, "none of the furniture seemed to be hers," "no cocaine, drug paraphernalia, or cash was found on her person or in her belongings," and "[t]he bedroom in which the police found her personal belongings was not a room in which they found drugs." Id. at 226. The "plus" factors cited by the Commonwealth -- that Brown lived in the apartment for some period of time and had belongings there -- showed only her "presence and awareness" of the drugs, we reasoned, and not her intent to control them. Id. at 226-227.
Likewise, here, that the defendant occasionally stayed in the basement of the apartment does not warrant an inference of intent to control, despite the presence of scales and sandwich bags in plain view. As in Brown, the defendant was one of several people present in the apartment, to which he did not have a key. He did not have belongings or paperwork in the rooms where contraband was found, or anywhere in the apartment for that matter. Thus, to establish the defendant's intent to control, the Commonwealth had to provide additional incriminating evidence to particularly link the defendant to the drugs. See Proia, 92 Mass. App. Ct. at 831; Brown, 34 Mass. App. Ct. at 226-227. See also Boria, 440 Mass. at 420-421 (without additional plus factors, evidence insufficient to show defendant's intent to control drugs found in living room of apartment where she lived, despite presence of her paperwork in living room closet and drug paraphernalia in kitchen). The Commonwealth failed to meet that burden.
The Commonwealth surmises that the defendant had "plenty of time" before the police entered to toss the drugs (and firearm) under the stairs. But even if the jury could have reasonably inferred that the drugs were tossed, "it would be pure speculation to attribute that action" to the defendant. Commonwealth v. Pimental, 73 Mass. App. Ct. 777, 785 (2009). The police did not see the defendant emerge from the area under the stairs. Nor did they see him attempt to conceal or protect the drugs and thereby manifest his intent to control them. See id. (scurrying sounds before police entry "[a]t most . . . support[ed] an inference that someone in the apartment hid the drugs," but could not be attributed to two specific defendants).
The heroin found on the stairs adds little, if anything, to the Commonwealth's case. We disagree with the Commonwealth that the jury could have reasonably inferred that the defendant dropped the heroin as he was brought up to the kitchen, given that he had already been searched, was handcuffed behind his back, and was escorted by two troopers, one in front of him and one behind him, neither of whom saw any potential evidence on the stairs at the time. Moreover, the Commonwealth's argument is based on its misapprehension that there was no evidence that anyone but the defendant was brought upstairs. Although Dunn testified that he did "not believe" anyone else was brought up, he acknowledged it was "possible" that other officers might have used the stairs while Dunn was talking to the defendant. And in fact, Wolfe testified unequivocally that another man was brought up "probably [ten], [fifteen] minutes after [the defendant]." In view of this evidence, we think the jury would again have had to engage in conjecture to attribute the heroin on the stairs to the defendant. See Rodriguez, 456 Mass. at 582 (evidence not sufficient if it relies on conjecture).
Despite this testimony the Commonwealth argued in closing that "[n]o one else" but the defendant was brought upstairs.
The remaining plus factors cited by the Commonwealth -- the items on the defendant and his statement that Freire "had nothing to do with this" -- do not tip the scales in favor of sufficiency. The defendant was not found with any drugs, which might have allowed the jury "to connect him to . . . larger amounts of nearby drugs of the same type." Pimental, 73 Mass. App. Ct. at 784. The $279 in the defendant's possession was not an overwhelming amount, and neither it, nor the fact that the defendant had a "flip phone" and keys to a rental car, showed that he intended to control the particular stash of heroin found under the stairs. See id. (possession of "relatively small amounts of cash" [$187 and $200] did not show defendants' intent to control drugs in apartment). See also Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 n.3 (2013) ("In isolation, cash and a cellular telephone are not substantial indicators of intent"). Likewise, the defendant's statement about Freire, while indicative of his knowledge that something criminal had transpired, did not show his intent to control the heroin. Cf. Commonwealth v. Aiello, 49 Mass. App. Ct. 496, 498-499 (2000) (defendant's suspicious conduct after being stopped by police was not evidence of his intent to control drugs in car).
As the judge stated in denying the defendant's motion for a required finding of not guilty, this is a close case. But ultimately, we conclude that the jury would have had to pile inference upon inference to find beyond a reasonable doubt that the defendant had the intent to control the heroin. The motion for a required finding should therefore have been allowed.
2. The firearm and ammunition. We also conclude that the evidence was insufficient to show that the defendant possessed the firearm and ammunition. These items were concealed in a "slot" between a stack of boxes and a wall. Although the Commonwealth claims that the defendant would have been familiar with the "nooks and crannies" of the basement, this amounts to mere surmise and does not suffice to prove the defendant's knowledge of, or ability to control, the items. See Commonwealth v. Sespedes, 442 Mass. 95, 100 (2004) (defendant's "access to and presence" in apartment insufficient to prove his knowledge of contraband hidden in ceiling). In addition, for reasons similar to those stated above, the Commonwealth failed to prove beyond a reasonable doubt that the defendant had the requisite intent to control the items.
The Commonwealth also points to the fact that the firearm and ammunition were found a few feet from the heroin. But even had the evidence sufficiently linked the defendant to the heroin, that still would not prove his knowledge of the firearm and ammunition beyond a reasonable doubt because those items were hidden and not in plain view. See Sespedes, 442 Mass. at 100; Montalvo, 76 Mass. App. Ct. at 326-327.
Judgments reversed.
Verdicts and findings set aside.
Judgments for defendant.
By the Court (Milkey, Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 8, 2020