Commonwealth v. Humphries
Commonwealth v. Humphries
Opinion of the Court
The defendant, Jerold Humphries, seeks to overturn two drug offense convictions,
In another bedroom, furnished only with a futon bed, police seized sixteen small plastic bags of marijuana in one large bag, eight larger individually wrapped bags of marijuana in another large bag, “Glad plastic bags” and small bags printed with an “apple.” No one was present in the room. The police also found a Massachusetts identification card with the defendant’s name and picture, and an envelope addressed to him at a different address which had been postmarked on October 27, 2003. The defendant’s address on the identification card was 49 Bullard Street, the same address as appeared on the envelope. No other personal effects of the defendant, or any personal effects of the three individuals observed in the rear bedroom were found in the vacant bedroom. The defendant was charged only for the marijuana found in the room where his identification was found.
Discussion. 1. The motion for a required finding of not guilty.
We review the question of sufficiency of the evidence under the familiar Latimore standard, Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), viewing the evidence in the light most favorable to the Commonwealth. To convict a defendant on a theory of constructive possession, the Commonwealth must prove beyond a reasonable doubt that the defendant had knowledge of the contraband, coupled with the ability and intention to exercise dominion and control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). In general, intent to exercise control “is not easily susceptible of proof and is a close question.” Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998).
Our typical constructive possession cases tend to concern situations where the defendant is present and we turn to other incriminating evidence to determine whether there is sufficient evidence of constructive possession. See, e.g., Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 786 (2009). Here, the defendant was not present and the only indicia on the Commonwealth’s case that he may have been present was an identification card in his name and an envelope addressed to him at a different address.
The identification card and the envelope did not, in and of themselves, show beyond a reasonable doubt that the defendant had knowledge of the presence of the marijuana and did not prove, even considering any reasonable inferences, that the defendant had the intent and ability to exercise dominion and control over the marijuana. Compare Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 682-683 (2006) (evidence was insufficient to show that defendant intended to exercise dominion and control over guns and ammunition found in bedroom closet of fiancée’s apartment where defendant was in vicinity of apartment but not present at time of search and no evidence connected
No cases have been brought to our attention, and we are not aware of any, where we have concluded that there was sufficient evidence of constructive possession despite the defendant’s absence. See Commonwealth v. Duffy, 4 Mass. App. Ct. 655, 660 (1976); Commonwealth v. Booker, 31 Mass. App. Ct. 435, 438 (1991); Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 628 (2000) (all cases in which court specifically notes defendant’s absence at time police discovered contraband and concludes that there was insufficient evidence of constructive possession). Contrast Commonwealth v. DePina, 75 Mass. App. Ct. 842, 854 (2009) (sufficient evidence of constructive possession where defendant walked toward building in which contraband found, with set of keys that unlocked building’s main door, apartment front door, and door to bedroom where drugs were found). Accordingly, we conclude that the motion for required finding should have been allowed.
Judgments reversed.
Verdicts set aside.
Judgments shall enter for the defendant.
The defendant was convicted by a Boston Municipal Court jury in September, 2007, of (1) possession of marijuana with intent to distribute, G. L. c. 94C, § 32C, and (2) a drug offense within a school zone, G. L. c. 94C, § 32J.
On the result we reach, we do not need to address the defendant’s remaining issues: that he was denied due process through the admission of drug
The facts discussed are taken only from the Commonwealth’s case. See Commonwealth v. Kelley, 370 Mass. 147, 150 (1976).
After the Commonwealth rested, defense counsel answered “yes” to the judge’s question whether he wished to move orally for a required finding. The transcript does not indicate that the judge explicitly acted on that request, nor is there any indication that defense counsel reasserted the request at the close of all the evidence. We assume from the course of the trial that the judge effectively denied the first request, and would have denied a second request if it had been made.
Dissenting Opinion
(dissenting). Respectfully I dissent from the reasoning and result advanced by my colleagues. For the following reasons, I conclude (1) that the evidence supported the jury’s verdict of guilt of constructive possession of marijuana with intent to distribute; and (2) that the admission of the drug analysis certification of marijuana constituted harmless error beyond a reasonable doubt.
1. Proof of constructive possession, a. Standards. In review
To prove the specific offense of constructive possession of contraband, the Commonwealth must establish (1) the defendant’s knowledge of the location of the material, and (2) his “ability and intention to exercise dominion and control” over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). As the majority point out, the nature of constructive possession typically requires proof by circumstantial evidence. Ante at 704. Mere presence in proximity to the contraband is not sufficient. Presence plus other incriminating circumstances can satisfy the standard of proof. Commonwealth v. Brzezinski, supra at 409-410, citing Commonwealth v. Albano, 373 Mass.
The record indicates that the defendant moved orally under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), for a required finding of not guilty at the close of the Commonwealth’s evidence. It does not show whether he renewed that motion at the close of all the evidence under Mass.R.Crim.P. 25(b)(1), 378 Mass. 896 (1979). I will assume that he did so and measure the evidence at each point. If the evidence were insufficient to permit any rational trier of fact to find the essential elements of constructive possession at the first point, he would be entitled to the directed finding. See Commonwealth v. Kelley, 370 Mass. 147, 150 (1976); Commonwealth v. Latimore, supra at 676. Typically we assess the evidence at the second point to determine whether the Commonwealth’s proof deteriorated after the presentation of its case-in-chief. See Commonwealth v. Sheline, 391 Mass. 279, 283 (1984); Commonwealth v. Walker, 401 Mass. 338, 343 (1987).
b. The Commonwealth’s evidence. The prosecution introduced the following evidence connecting the defendant to the storage of the marijuana. The bedroom holding the twenty-four bags of marijuana was almost barren. It contained none of the accessories of normal habitation (clothes, toiletries, chairs, lamps, radio, television, reading material, papers). Its contents were a futon bed, the contraband and packaging, and two personal effects of the defendant. It was functioning solely as a drug distribution chamber. Any visitor to the room would have known of that use.
The only personal effects in the room and the only personal connection to the room belonged to the defendant. One was his identification card and the other a letter addressed to his
The condition of the room supported the inference that the defendant had not accidentally left the identification card and letter nor overlooked them in the clutter of a typically inhabited room. Aside from the futon and the marijuana, they were the only items in the room. The plausible inference was that the defendant had knowingly left them because he was returning to the room on a continuous basis. In particular, he would need his identification card, a credential of daily use comparable to that of a driver’s license.
In addition, one of the police officers executing the search warrant described the quantities of cocaine and marijuana seized from the other bedroom. That testimony substantiated a scenario of drug dealing of which a visitor or occupant would reasonably have been aware. Commonwealth v. Griffin, 45 Mass. App. Ct. 396, 399 (1998), and cases cited.
In the aggregate, this circumstantial evidence placed the contraband in proximity to the defendant’s personal effects, connected him to the wider scene of drug activity in the apartment, and linked him to the marijuana in the bedroom by a “particular relationship.” Commonwealth v. Rarick, 23 Mass. App. Ct. at 912. As the trial judge ruled, the defendant was not entitled to a directed finding.
c. The defendant’s evidence. Rather than cause deterioration, the defendant’s evidence magnified the case against him. He revealed a familiarity with the apartment. He had recently
Finally, the defendant testified and became trapped in a falsehood about his presence in the room storing the marijuana. His direct testimony was that he had permanently left the apartment by the end of September, 2003, six weeks before the warranted search and seizure of November 15. By cross-examination the prosecutor pressed him about the presence of the letter found in the room, addressed to him at his subsequent residence, and postmarked on October 27, or about four weeks after his alleged departure.
Q. “Thank you, sir. Mr. Humphries, there’s one more thing though I want to ask you, just one more thing I want to ask you: You see, the thing that I have trouble understanding —”
Prosecutor: “May I approach, judge?”
The court: “All right.”
Q. “— is you say that you left the stuff behind, right? You say that you had left that stuff behind when you left before October 1st. The problem is, the thing I don’t understand, maybe you can help me understand this is why is that postmarked after October 1st? Why is that dated after October 1st?”
A. “Because I was living with — the address — 49 Bullard (the new residence).”
*710 Q. “Right. But see, that’s your name on there, right?”
A. “Right.”
Q. “And that’s your address on there, right?”
A. “Right.”
Q. “But you said you were living there after you had moved out.”
A. “Right.”
Q. “So in other words why was that left behind? If you were already out, why was that left behind? Do you see what I’m saying? Because if you were living there after you lived at 15 Wentworth [the site of the apartment]
A. “Aha”
(Emphasis supplied). As recounted in the margin, this line of questioning continued with no improvement in the defendant’s responses.
In sum, the defendant’s lengthy familiarity with and access to the apartment, the presence of his personal effects in the room, the apparent exclusivity of his connection to the room, his infer-able continuing presence there, and his self-defeating testimony and demeanor provided the jury with ample evidence for a finding of constructive possession.
2. Proof of intent to distribute. The circumstantial evidence abundantly supported a finding of intent to distribute. Typical indicia are the quantities of the contraband, Commonwealth v.
3. Admission of the certificates of drug analysis. The trial occurred in September of 2007. At that time the certificates identifying the nature of the marijuana were admissible under the rule of Commonwealth v. Verde, 444 Mass. 279, 282-285 (2005). The Supreme Court’s decision of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), subsequently overruled Verde and rendered the certificates as tainted evidence in violation of the right of confrontation under the Sixth Amendment to the United States Constitution. Trial defense counsel objected to the admission of the first two of eight certificates upon authority of Crawford v. Washington, 541 U.S. 36, 59, 68-69 (2004). Under Commonwealth v. Vasquez, 456 Mass. 350, 355-360 (2010), the admission of all eight certificates are treated as preserved error without any requirement of timely objection by defense counsel.
Therefore under the doctrine of Chapman v. California, 386 U.S. 18, 23-24 (1967), we ask whether the admission of the certificates was beyond a reasonable doubt merely harmless error. Or does the record show “a reasonable possibility that the evidence complained of might have contributed to the conviction”? Ibid., quoting from Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). We examine the following as useful, but not exclusive or exhaustive, factors: (1) the weight or quantum of proper evidence of guilt; (2) the importance of the tainted evidence to the prosecution’s case; (3) the character of the tainted evidence as merely cumulative of the valid evidence or as independently probative; (4) the relationship between the improper evidence and the premise of the defense; (5) the frequency of reference to that evidence (presumably in both testimony and argument); and (6) the identity of the party introducing the evidence (typically the Commonwealth in certification cases). Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). Com
Independent proof of the nature of the contraband as marijuana was powerful. The Commonwealth’s main witness was the Boston police detective in charge of the warranted search of the apartment. His training included instruction at “narcotics investigation schools” and the “FBI’s undercover school.” He had served in the department’s drug control unit for eight of his eleven years of experience. He had participated in 2,000 to 2,500 cases (at an approximate rate of 300 per year) of drug investigation. From that experience he knew marijuana to be a green, leafy vegetable material with a strong characteristic odor. Those features make marijuana a far more identifiable item than the powdery or solidified forms typical of cocaine and heroin. Independently of the certificates, he identified the bags of material from the bedroom as marijuana and the unused plastic bags as packaging.
Further, the certificates of marijuana analysis had no relationship to the premise of the defense. The theme of the defense in both opening and closing statements was that the defendant lacked connection to, and possession of, the contraband. In both statements, defense counsel conceded the composition of the marijuana.
In sum, (1) proper evidence of guilt was potent; (2) the importance of the uncontested tainted evidence to the prosecution’s case was slight; (3) the character of that evidence was cumulative of the valid evidence; (4) the relationship of the improper evidence to the premise of the defense (lack of possession) was nonexistent; and (5) the frequency of reference to the certificates was minimal. The only material issue for the jury was the question of constructive possession. The admission of the certificates was harmless error beyond a reasonable doubt. I would therefore affirm the judgments of conviction.
See Holmes, The Common Law, 168-174 (1981) (Howe ed., Little Brown 1963) (the common law of possession reduced to two elements: physical control or the capacity for physical control over an object; and the intent to exclude others from such control).
Q. “— you know, how could that have been left behind when you were at 15 Wentworth when you had moved there after 15 Went-worth?”
A. “It was part of the materials that I had was in my bags that I probably when I took my mail and everything some of my stuff over there, that was probably waiting.”
Q. “Wait, I thought that you had moved out before October 1st?”
A. “No — exactly. But what I’m saying, when I helped my aunt out I had a couple of materials over there which was my ID which I would need to use anywhere I would go, you know. [Emphasis supplied]. And then I had a couple of papers, other papers, too, which was in a backpack, you know, with all my important papers.”
Q. “Sure. And when you moved that out it must have fallen out or something like that?”
A. “No. I guess I forgot the bag. It was a bag and it was materials that I never retrieved or never knew that I had left at that apartment.”
Q. “All right, but the thing, you see —”
*711 Prosecutor: “May I approach again, judge?”
Q. “You see, the thing I don’t understand, maybe you can just look at it for me, I might be just reading it wrong. Well, it says October 27, 2003 there, isn’t that right?”
A. “Right.”
Q. “But you said you were out of the apartment before that date though, right?”
A. “Mm-hmm.”
Q. “So how is it that something postmarked October 27th, 2003 is left behind from when you moved out of there on October 1st? Do you see what I’m saying?”
Defense counsel: “Objection. Asked and answered, your Honor. That question has been asked.”
The court: “He can answer it.”
Q. “It doesn’t make that much sense, does it?”
A. “Yeah, it do[es] make sense.”
Q. “All right.”
A. “It was mail that was left — it was mail that was left behind. I was never staying in the apartment after that time.”
Q. “But it couldn’t be left behind, could it, Mr. Humphries, it couldn’t have been left behind. It couldn’t have been left behind because it is dated on a date after you had already moved out of the apartment. So that would mean you had to have brought it over. You had to have been in the apartment after —”
Defense counsel: “This is argumentative, your Honor.”
The court: “All right, just break it down frame by frame, all right. Let him answer. Let the gentleman answer.”
Q. “Do you see what I’m saying, Mr. Humphries? It is postmarked a date after you said you moved out of the apartment.”
A. “Okay.”
Q. “It’s as simple as that.”
Prosecutor: “I have nothing further, judge.”
Since I resolve the question of constructive possession differently from the majority, I address the defendant’s remaining contentions for complete explanation of my vote to affirm his convictions. The ensuing sections 2 and 3 respond to the arguments of insufficient proof of intent to distribute and the claimed harm from the admission of the certificates of marijuana analysis.
The defendant’s final contention was that the admission of evidence of the presence of cocaine and marijuana in the second bedroom unfairly caused him prejudice. For several reasons, the admission was proper. Its probative value outweighed any prejudicial impact. The contraband in the second room illustrated the scale of operation in the apartment and the defendant’s likely knowledge of that operation. Commonwealth v. Griffin, 45 Mass. App. Ct. at 399-400. Further, the trial judge emphatically instructed the jury, “I want to stress to you, [the defendant] is not charged with the cocaine possession or the marijuana from the first bedroom where the three individuals were allegedly located.” Finally, the evidence served as the basis for the main hypothesis of his defense: that the marijuana imputed to him belonged to the persons in the other bedroom.
In opening remarks, defense counsel stated to the jury:
“[Y]ou will hear the police officer say, ‘We found marijuana. We found marijuana.’ Great, we know they found marijuana, we believe them. We don’t disbelieve the police on this. They found marijuana but it is not Mr. Humphries1-’'1.”
The closing remarks were consistent:
“What has the government really proved? There were drugs, absolutely, absolutely there were drugs. You will be able to touch them, feel them, smell them [as exhibits].”
Acknowledgment by defense counsel of the nature of the contraband in the
As to the school zone violation, it was undisputed that the apartment was located 712 feet from the grounds of Dorchester High School.
Reference
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