54 Mass. App. Ct. 726 | Mass. App. Ct. | 2002
The defendant was convicted by a Superior Court jury of trafficking in cocaine in an amount in excess of 100 grams, G. L. c. 94C, § 32E(£>)(3). On appeal he argues that (1) the judge improperly denied his motion for a required finding of not guilty; and (2) improper remarks in the prosecutor’s closing argument created a substantial risk of a miscarriage of justice. We agree with the defendant regarding his first claim, and thus, it is unnecessary to review the defendant’s second claim.
1. Background. On May 5, 1998, the Worcester police executed a search warrant for the third-floor, three-bedroom apartment located at 17 Cheever Street. Upon entry, the police secured seven individuals, including the defendant, who were in the apartment. The defendant, who had been in the kitchen
In one bedroom, the police found one piece of crack cocaine on the bed, one plastic baggie, and two more pieces of crack cocaine on a plate with a razor blade. In a second bedroom, the police discovered a smoldering crack pipe, one piece of crack cocaine on a plate, two razor blades, and cut-cornered baggies. In a third bedroom, the police found two razor blades on the windowsill, a scale, and some paperwork with notations indicating drug sales and transactions. Male clothing, a decorative heart-shaped wreath,
The living room and kitchen were sparsely appointed. The police discovered a pile of tools and a “Ray’s Roofing, Call Us, Free Estimates” refrigerator magnet in the kitchen, as well as “Ray’s Roofing Company” fliers throughout the apartment. A heat sealer, two boxes of sandwich bags, two bags filled with “small blue Ziplock baggies,” a surgical mask, and paperwork indicating numbers “consistent with the sale and records kept in the sale of crack cocaine” were found in the pantry. Cut-cornered baggies lay in the trash on the third-floor porch. The police found a plastic margarine container with off-white residue
The “triple decker” house sat in a congested neighborhood of similar homes and had a separate apartment on each floor. Each apartment had a back porch, connected by a common stairway to the yard at ground level, without a gate or other impediments to common passage. A shed, described as a “com
Inside the shed, the police observed no tools or appliances and commented that there “may have been some boxes . . . but nothing significant.” After making this determination, the police observed “a cutout, kind of an entrance square that they used to get into the attic. Anybody, I mean landlords, anybody [could use] it to get in to do repair work.” This square “cutout” in the ceiling of the shed was the only access route to the attic and was “about maybe eight and a half, ten feet off the ground.” Finding no ladder, the police officer “climbed up the side of the wall. Stepping between the boards and grabbing on . . . ,” the officer pulled himself up and through the “cutout” to get into the attic.
Once inside the attic, the police discovered a flashlight, a sifter,
“To sustain a conviction of trafficking in cocaine under G. L. c. 94C, § 32E, the Commonwealth must show that the defendant had ‘possession’ of the cocaine.” Commonwealth v. Sinforoso, supra at 327. Absent evidence of actual possession, the Commonwealth must prove that the defendant had constructive possession. Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 237 (1997). Constructive possession requires proof that the defendant knew of the location of the illegal drugs and had the ability and intent to exert dominion and control over them. Ibid. “The requisite proof of possession ‘may be established by circumstantial evidence, and the inferences that can be drawn therefrom.’ ” Ibid., quoting from Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).
In this case the defendant conceded that there was sufficient evidence of his connection to the apartment where he was arrested. At oral argument the defendant conceded that the evidence was sufficient to prove that he was “involved in the sale of crack cocaine,” and that the apartment was, essentially, a “crack house.” He argues however, that there was insufficient evidence that he was aware of the powder cocaine in the attic and had the ability and intent to exercise dominion and control over it. We agree.
Here, the attic was only accessible through the locked shed on the third-floor porch of a three-level, three-family apartment house. Nothing in the attic reasonably connected the defendant to the attic or the powder cocaine. Police found no fingerprints that matched any of the suspects. No direct evidence connected the defendant or his confederates to the combination lock, and
In Commonwealth v. Booker, 31 Mass. App. Ct. 435, 438 (1991), we concluded that the Commonwealth had failed to meet its burden of proof on the question of possession where evidence was admitted to show that the defendant resided in an apairtment where drugs were recovered, but that the contraband was found in a common area to which the defendant had no special connection, and certainly no right of control. Here, the
Similarly in Commonwealth v. Hill, 51 Mass. App. Ct. 598, 604 (2001), we determined that possession of ammunition found in the basement of the defendant’s apartment building could not be imputed to the defendant absent some evidence specifically linking him to the basement. As we stated in that case:
“The Commonwealth introduced nothing indicating that Hill had at any time been present in the cellar or was aware of its contents. Neither did the Commonwealth claim to have found in the cellar any items identifiably belonging to or associated with [the defendant], such as personal papers or effects . . . .”
Precisely the same void existed in the Commonwealth’s evidence here. As in Hill and Booker, the evidence of possession was insufficient as matter of law.
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
This wreath was hanging above the bed in the third bedroom and carried the legend: “I (picture of heart) you Roy.” See note 2, infra.
The defendant is also known as Roy Weston.
The residue in the margarine bowl was never analyzed.
testimony at trial brought forth that inositol could be used as a cutting agent to dilute cocaine and that it is sold over the counter at health food stores as a dietary supplement.
On the sifter was a white film that was never analyzed.
No evidence was presented that indicated that the cocaine found in the attic was diluted with inositol.
A police officer testified that baking soda is needed to convert powder cocaine into rock cocaine. “[The cocaine] also could be cooked up into crack cocaine in which it would be boiled using baking soda.”
As noted above, a police witness testified that the attic was a place where landlords, anybody . . . [could] do repair work.”