Opinion
11-P-1163
04-17-2012
COMMONWEALTH v. PABLO TORRES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the dismissal of eighteen (numbers one through eighteen) indictments charging the defendant with various crimes, including trafficking in cocaine, unlawful possession of a large capacity firearm, illegal possession of firearms, and various other drug and firearm-related charges. We agree with the Commonwealth that the evidence before the grand jury was adequate to meet the low standard of proof required for grand jury indictments.
The remaining nine indictments (numbers nineteen through twenty-seven) were not the subject of the motion and order to dismiss and are not part of this appeal.
'Generally a court will not inquire into the competency or sufficiency of the evidence before the grand jury.' Commonwealth v. Coonan, 428 Mass. 823, 825 (1999). A narrow exception arises where the evidence before the grand jury is insufficient to establish 'the identity of the accused and probable cause to arrest.' Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). However, the standard of probable cause is 'considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding.' Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). '[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.' Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). The test is an objective one. Commonwealth v. Hason, 387 Mass. 169, 175 (1982). 'The officers must have entertained rationally 'more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt." Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting from Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989).
The motion judge concluded there was insufficient evidence to prove that the defendant constructively possessed the ammunition and contraband recovered from 9 Chrome Street because the defendant was not present in the apartment at the time the police executed the search warrant, and the Commonwealth presented no physical evidence connecting the defendant to the apartment. To be sure, a defendant's 'ownership of or residential status at the premises' where contraband is found is a relevant factor to be considered. Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991). Here, however, there was significant other evidence connecting the defendant to that location and the activities conducted therein. The police had been in active surveillance of the defendant and, in June, 2009, had seen him returning to the apartment shortly after he sold cocaine to a police informant. On September 8, 2009, the police witnessed the defendant enter the apartment, leave to make a controlled sale of cocaine to a police informant, then return to the apartment after completing the sale.
When the police executed the search warrant for the premises at 9 Chrome Street, they found cocaine in the second bedroom (one of two bedrooms on the second floor) and the kitchen. In a container on top of the dresser in the second bedroom were twelve individually wrapped bags of 100.31 grams of cocaine, a firearm, loaded magazines, cell phones and $1,700 in cash. In the first-floor bedroom were ammunition, magazine clips, and cell phones. Finally, in a kitchen drawer, the police recovered ammunition, empty magazine clips, and a coffee grinder with cocaine residue.
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The Commonwealth also presented evidence to the grand jury that in July 2009, during police surveillance of the apartment at 9 Chrome Street, police observed codefendant Akeem Rose enter the apartment, exit the apartment, and engage in what appeared to be a street-level drug transaction, then walk back to and enter the apartment.
In sum, the evidence clearly supported the reasonable inference that the defendant was involved in an illegal drug operation that was based out of the apartment at 9 Chrome Street. See Commonwealth v. Monteiro, 80 Mass. App. Ct. 171, 175 (2011).
Order allowing motion to dismiss indictments one through eighteen reversed.
By the Court (Cohen, Green & Graham, JJ.),