73 Mass. App. Ct. 777 | Mass. App. Ct. | 2009
Eight codefendants were tried for trafficking in cocaine, G. L. c. 94C, § 32E(Z?)(2), possession of heroin with intent to distribute, G. L. c. 94C, § 32(a), and violating the controlled substance law within one hundred feet of a public park or playground, G. L. c. 94C, § 32J. After a jury-waived trial in the Superior Court, the five defendants here on appeal were convicted of all charges. The remaining three defendants, Jonathan Maldonado, Mariano Gomez, and Nelson Gonzalez, were convicted of possession of heroin with intent to distribute and violating the controlled substance law within one hundred feet of a public park or playground. These three defendants, however, were acquitted of trafficking in cocaine. The Supreme Judicial Court affirmed the convictions of Maldonado, Gomez, and Gonzalez in Commonwealth v. Gonzalez, 452 Mass. 142 (2008).
The proceedings and facts are recited in detail by the Supreme Judicial Court in Gonzalez. We recount the evidence briefly, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Holyoke police officers obtained a warrant to search an apartment on the basis of their surveillance of the apartment building and on the basis of purchases from the apartment by a confidential informant. When the officers went to the apartment to execute the warrant, they knocked on the door and heard scurrying. Officers then broke down the door with a battering ram and discovered eight men (the five defendants, as well as Maldonado, Gomez, and Gonzalez) in the living room of the sparsely furnished apartment.
Upon a search of the apartment, officers discovered a large quantity of cocaine, heroin, and money hidden at several locations in the living room, as well as a box of plastic baggies hidden in the dropped ceiling in the hallway between the living room and the kitchen. The officers ordered all the defendants to the ground. When an officer pulled Pimentel from the ground, he discovered three “dime bags” of cocaine concealed underneath his body. Searches of the eight men revealed the following: Maldonado had $1,740 in cash; Gomez had $2,604; Gonzalez had $1,046 and a key to another apartment in the building;
On appeal, the defendants raised both discrete and common issues. They each challenged the sufficiency of the evidence supporting their convictions. Defendants Montalban and Acevedo argued that this court should reverse their cocaine trafficking convictions, in view of the acquittal of Maldonado, Gomez, and Gonzalez on those same charges. Defendant Montalban argued that his trial counsel was ineffective for failing to move to suppress certain evidence. Finally, defendant Pimentel argued that he did not waive his right to a jury trial effectively. We address each issue in turn, and discuss additional facts as they become relevant.
Discussion. Sufficiency of the evidence. Each of the defendants presented a motion for a required finding of not guilty at the close of the Commonwealth’s case, arguing that the evidence established no more than mere presence at a scene where drugs were found. The judge denied their motions.
1. Constructive possession. The defendants were charged with trafficking in cocaine having a net weight of twenty-eight grams or more but less than 100 grams, and with possession of heroin with intent to distribute. Possession of the quantity of cocaine and heroin found in the apartment, as well as the packaging of the drugs and other packaging materials found, would permit an inference of trafficking or of possession with intent to
Reviewing the same record that is now before us, the Supreme Judicial Court held in Gonzalez that “[t]he evidence warranted an inference that the defendants knew that the apartment in which they were present contained, and was used as a base for selling, heroin and cocaine.” Commonwealth v. Gonzalez, supra at 146-147. Specifically, the court concluded that the judge could have reasonably inferred that the three packets found under Pimentel’s body were in plain sight just before the officers arrived at the apartment. Similarly, from the scurrying the officers heard just before their entry and the large quantities of drugs found in the same room as the defendants, the judge could have inferred that those drugs were also plainly visible in the room before the officers entered. Finally, the judge could have inferred that the apartment was regularly used for illegal drug activity, due to the large amount of drugs found, the sparsely furnished nature of the apartment, and the barricades attached to the front door. Id. at 147.
However, the Gonzalez court was careful to point out that the three defendants whose convictions it was reviewing did not simply present “a case of mere presence.” Id. at 148-149. The “unusually large amounts of cash” found in the possession of
2. Joint venture. The evidence under a joint venture theory requires the Commonwealth to show that the defendant (i) was present at the scene, (ii) had knowledge that another intended to commit the crime or had the intent to commit the crime,3
3. Application of legal theories to the facts. We consider whether there was sufficient evidence to support both theories in the case against each defendant in this appeal.
a. Montalban. Montalban does not appeal the denial of his
Were we to consider Montalban’s claim nevertheless, it is unavailing. To prevail, Montalban must show not only that his suppression claim likely would have prevailed, but also that “there was a reasonable possibility that the verdict would have been different without the excludable evidence.” Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205 (1991).
We note, first, that Montalban was found to have a large quantity of cash on his person, and we therefore consider him to be in the same posture as the Gonzalez defendants. In addition, the search of Montalban revealed a plastic bag containing several empty plastic baggies of the kind used to package cocaine and marijuana, and matching the type of baggies discovered in the dropped ceiling. We conclude that the plentiful amount of cash and the baggies on Montalban’s person, coupled with his presence in an apartment where large amounts of drugs were just recently in plain view, precluded a reasonable possibility of a different outcome regardless of the admission of articles found in the closet. We would therefore conclude that his counsel was not ineffective by failing to request suppression of additional evidence found in the hallway closet.
b. Garcia. When officers entered the apartment, Garcia was sitting on a couch in the living room. When he stood up, he dropped a key onto the floor, and then hid it under his body. This key fit the lock to the front door of the apartment. That Garcia had the sole key to the apartment among the eight men present supported an inference that he had allowed the other men into the apartment to conduct drug activity, thus supporting a finding of ability and intention to exercise control over the drugs. See Com
As with Montalban, the same evidence permits a finding that Garcia was willing and available to help the others if necessary, and thus the evidence is also sufficient to support a joint venture theory.
c. Pimentel. When the police lifted Pimentel from the floor, they discovered three “dime bags” of powder cocaine. Additionally, officers recovered ten more “dime bags” of powder cocaine and $55 in cash from his person. The cocaine recovered from Pimentel was of the same type as cocaine recovered from the living room of the apartment.
The same evidence, again, permits a finding that Pimentel, if not actively engaged in trafficking, was willing and available to help the others if necessary, and thus is also sufficient under a joint venture theory.
d. Davila & Acevedo. As noted above, the Supreme Judicial Court placed significance on the large amounts of cash recovered from the Gonzalez defendants. In contrast to those three and also in contrast to Montalban, Davila and Acevedo possessed relatively small amounts of cash ($187 and $200, respectively); no other circumstances linked them to the activity in the apartment.
We are left to determine, then, whether their presence in a sparsely furnished, barricaded apartment, where drugs had recently been in plain view, supports findings of constructive possession and of joint venture for Davila and Acevedo.
We conclude preliminarily that, even without large amounts
The Commonwealth relies upon the scurrying sounds coming from the apartment before the officers entered. Again, this evidence supports a finding of knowledge, as it suggests the drugs were in plain view, but it does not support a finding that Davila or Acevedo intended to exercise control. At most, the scurrying supports an inference that someone in the apartment hid the drugs, but it would be pure speculation to attribute that action to Davila or Acevedo. See Commonwealth v. Handy, 30 Mass. App. Ct. 776, 779 (1991) (finding insufficient evidence to support the “charge beyond unacceptable conjecture or surmise”).
Finally, the Commonwealth relies upon the existence of large amounts of drugs, barricades, and a sparsely furnished apartment, which together warrant an inference that drug activity regularly occurred there. See Commonwealth v. Gonzalez, supra
Inconsistent findings. Montalban and Acevedo argue that their convictions of trafficking in cocaine cannot stand, because the three Gonzalez defendants were acquitted of the same crime under almost identical evidence. In Massachusetts, the rule has been long established for jury trials: “[Mjere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous.” Commonwealth v. Sherry, 386 Mass. 682, 698 (1982), quoting from Commonwealth v. Scott, 355 Mass. 471, 475 (1969). In Gonzalez, the Supreme Judicial Court confirmed that the same rule should apply where the judge is finder
Waiver of right to jury trial. Finally, we reject Pimentel’s argument that his waiver of his right to a jury trial was constitutionally infirm. Because he failed to make a timely objection, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Collado, 426 Mass. 675, 678 & n.5 (1998); Commonwealth v. Ridlon, 54 Mass. App. Ct. 146,147-148 (2002). We conclude from our review of the colloquy that it provided a sufficient basis for the trial judge’s conclusion that the defendant voluntarily and intelligently waived his right to a jury trial. See Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979); Commonwealth v. Schofield, 391 Mass. 772, 775-776 (1984).
The judge advised the defendants that, in a jury trial, twelve people would have to decide unanimously whether the defendants were guilty or not guilty, while in a bench trial, the judge alone would make that decision. He explained that the judge, and not the jury, imposes sentence. He questioned the defendants about their mental states, ingestion of drugs or other substances, and educational backgrounds. He questioned the defendants whether they had conferred with their attorneys on the matter. He twice asked the defendants whether they had been pressured or coerced into waiving their right to a jury trial. In light of this detailed colloquy, we do not find it significant that the judge failed to use specific words (as Pimentel argues, “fundamental,” “constitutional,” “vital,” and “precious”) to describe the right to a jury trial.
Conclusion. The judgments against defendants Montalban, Pimentel, and Garcia are affirmed. The judgments against defendants Acevedo and Davila are reversed, the guilty findings are set aside, and new judgments shall enter for these two defendants.
So ordered.
Montalban does not appeal directly from this ruling, but instead claims that his counsel was ineffective for failing separately to request suppression of evidence recovered from a hallway closet. This argument is more properly raised in a motion for new trial. See discussion infra.
The fifth, Montalban, carried a significant amount, $961, on his person.
As has been observed, the use of the indefinite article (“a crime”) found in some opinions in the definition of joint venture is too broad, leading to a possible determination that two individuals had engaged in a joint venture, even though they each intended to commit “a” (different) crime. See Commonwealth v. Clements, 51 Mass. App. Ct. 508, 536 n.18 (2001) (Duffly, J., dissenting).
The large amounts of cocaine found in the living room included both powder and “crack” forms of the drug.
While our decisions and those of the Supreme Judicial Court have never determined precisely how much cash is sufficient to support an inference of constructive possession of nearby drugs, preferring to consider the question on a case by case basis, the $55 carried by Pimentel is clearly not enough.
“[W]e must consider only the evidence presented during the Commonwealth’s case-in-chief in deciding the propriety of the denial of the defendant’s motion for a required finding.” Commonwealth v. Berry, 431 Mass. 326, 332 (2000). We therefore do not consider Davila’s inculpatory written statement, which was introduced by defendant Montalban after the Commonwealth rested, in deciding whether the prosecution met its burden.
We acknowledge dictum in Gonzalez which implies that the cash possessed by the other defendants, combined with the circumstances common to everyone in the room, might support an inference of constructive possession even by those defendants who had very little cash. Specifically, the court said: “The defendants’ presence in a room with such large quantities of drugs and cash, much of which ... the judge reasonably could have concluded was in plain view shortly before the officers opened the door, suggests that they were closely involved in the illegal drug sales conducted from the apartment. . . . Because the sparse furnishings and barricades suggest that the apartment was primarily used for drug transactions, they also suggest that all of those present were involved in the activity, not simply aware of it.” Commonwealth v. Gonzalez, supra at 147-148 (citations omitted). We contrast this language, however, with what we conclude to be the holding in Gonzalez: “In sum, this is not a case of mere presence. The large sums of money on each of the three defendants, coupled with their close proximity to at least some of the hiding places of the drugs, allow the reasonable inference that each of the three had the ability and intention to exercise dominion and control over the drugs found in the living room” (emphasis added). Id. at 148-149.
We discern no material distinction between so-called “charge” inconsistency (acquittal for possession of one drug while being convicted of the other) and “defendant” inconsistency (conflicting results for two defendants in the same circumstances).
Pimentel's citation to Commonwealth v. Abreu, 391 Mass. 777 (1984), is unavailing. There, the entire “colloquy” consisted of the question, “[D]o I understand that you have waived your right to trial by jury and you want to have the case heard by a single justice through the interpreter?” Id. at 778. In contrast, here the colloquy was quite extensive.