Commonwealth v. Charlton
Commonwealth v. Charlton
Opinion of the Court
A Superior Court jury returned guilty verdicts on indictments charging possession with intent to distribute cocaine and possession of ammunition without a firearm identification (FID) card. After the jury were excused, the defendant pleaded guilty to so much of the ammunition indictment as alleged a prior violent offense. The defendant now appeals. The principal issue presented for review is whether the Commonwealth presented sufficient evidence to sustain a conviction based on constructive possession of the ammunition. The defendant also challenges the denial of his motion to suppress. We affirm the convictions.
Background. The jury could have found the following facts.
The defendant led them to a bedroom where a young woman, later identified as Julie Ford, was lying on a bed with a gunshot wound to her abdomen. Paramedics arrived almost simultaneously and immediately began to treat Ford. At least five other officers also responded to the scene. Vargas did a quick sweep of the rest of the apartment to make sure no one was there with a gun and returned to the area near the bedroom.
Wilbur testified that while he was watching the paramedics
Wilbur escorted the defendant out of the bedroom and left him in the custody of other officers in the kitchen, while he returned to the bedroom to look around more carefully, particularly near the dresser area where he had just discovered the contraband. Wilbur saw boxes full of sandwich bags near the television set on the dresser and described them as “small ones that [he] generally see[s] people package drugs in.” To the right side of the television were wrapped piles of primarily one hundred dollar and fifty dollar bills, later determined to total $4,750. Also nearby, there was another bag of what appeared to be cocaine, together with an electronic scale and a police radio scanner that was plugged in and operational.
During the protective sweep of the apartment, either Vargas or an assisting officer found a box of .25 caliber ammunition in a bureau drawer in the living room.
At the police station, Officer Cole booked the defendant. Over objection, Cole testified that during the booking process, the defendant supplied his address as 46 Brett Street. That address was memorialized on the booking sheet that the defendant then signed and that was introduced in evidence. Wilbur testified that the gunshot victim told him that she was homeless, but during cross-examination he admitted that he did not interview her and that in another report prepared by Vargas, it stated that Ford had given her address as 46 Brett Street.
Annie Khan, a chemist with the Department of Public Health, explained the tests she performed on the substances that were seized during this incident and confirmed that the substances were cocaine.
Detective Thomas Keating testified as a drug expert. Based on all the items found in the apartment, he opined that the cocaine found therein was more consistent with distribution than personal use. He also testified that the fact that a razor blade was found on the plate with the contraband suggests it was being used to “cut” the purity of the cocaine with another substance like baking soda, or that the razor blade was used to wipe the product onto the scale to weigh it.
It was the defendant’s theory of defense, presented through opening statement, cross-examination, and closing argument, that 46 Brett Street was a so-called “crack house” in which no one resided, that he was only present to help the woman who had been wounded, and that the evidence was insufficient to link him to the cocaine or the ammunition found in the apartment.
Discussion. 1. Suppression motion. Preliminarily, the defendant argues that the motion judge erred in denying his motion to suppress. He contends that the ammunition evidence retrieved from the kitchen closet should have been suppressed because the defendant’s consent to search the apartment was involuntary. We disagree. After an evidentiary hearing, the motion judge found as follows:
*298 “In fairly short order, the defendant was taken out of the bedroom and he was formally placed under arrest. He was advised of warnings pursuant to the Miranda decision. Detective Almeida provided the rights. He did that by reading the rights and ... I find they were a complete set of warnings pursuant to Miranda .... As well, he informed [the defendant] that if he chose to answer questions, he could stop at any time. Detective Almeida also asked the defendant if he understood those warnings and the defendant indicated that he did.
“Following advising [the defendant] of Miranda warnings, Detective Almeida asked for permission to search the apartment. That is he said, can we search and the defendant responded in the affirmative. That is, he said ‘Yeah, go ahead. You can get a warrant anyway, so you might as well search.’ As a result of that, the officers looked in other areas. In particular, within the kitchen or off the kitchen was a closet and opening that closet door Detective Almeida observed a black cloth bag. In opening that bag, he found a box of .357 caliber ammunition. . . .
“[Regarding] whether or not the search of the kitchen closet was permissible and the seizure of ammunition from a black cloth bag[,] I find that it was permissible. It was based on the defendant’s consent. I find the defendant gave his consent after being advised of Miranda warnings and by the manner in which he gave consent, indicated a knowledge that he had the right to refuse and the right to require the police to obtain a search warrant. Indeed he specifically stated that they could get a warrant anyway, so you might as well search. That evidences a knowledge of his rights and a voluntary waiver of his right to require the police to obtain a search warrant.
“I find that there is no evidence in this case that the police had threatened to obtain a warrant in order to induce the defendant’s waiver or consent, rather I find that that consent was freely given and was voluntary. Accordingly, relying on the consent given, the police had a right to conduct a further search and that would include a right to search the closet and the cloth bag within the closet leading to the recovery of further ammunition, in this case .357 shells.”
2. Sufficiency of the evidence on ammunition charge. Contending that the judge erroneously denied his motion for a required finding of not guilty, the defendant argues that the Commonwealth failed to present sufficient evidence to prove that he had constructive possession of the ammunition seized in the apartment where he was found.
“Proof of constructive possession requires the Commonwealth to show [1] knowledge coupled with the [2] ability and [3] intention to exercise dominion and control. Proof of possession . . . may be established by circumstantial evidence, and the inferences that can be drawn therefrom. Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense. While presence in an area where contraband is found alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] . . . presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.” Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008) (citations and quotations omitted).
We review the question of sufficiency of the evidence under the oft-repeated Latimore standard, viewing the evidence in the light most favorable to the Commonwealth.
Somewhat thinner is the evidence of the defendant’s knowledge of the .357 caliber ammunition found in a bag in the kitchen closet. The evidence tended to suggest that the defendant shared the apartment with the gunshot victim, but nothing was found in close proximity to the bag containing the .357 ammunition that provided a connection to the defendant.
Having determined that the defendant had knowledge of at least one of the two boxes of ammunition, we must consider whether the evidence was sufficient to show beyond a reasonable doubt that he had the ability and intent to exercise dominion and control over it. See Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 626-628 (2000); Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 682 (2006). The defendant and the Commonwealth present competing arguments and inferences. That a defendant provides as his address the place where contraband is found does not alone provide an ability and intent to control the contraband. See Commonwealth v. Boria, 440 Mass. 416, 421 (2003) (notwithstanding that defendant was linked to apartment by her welfare application and her statement that she lived there, “what the Commonwealth showed
Nor was any forensic testing undertaken that might connect the defendant to the ammunition, such as fingerprinting, deoxyribonucleic acid (DNA) testing, or testing that showed he recently fired a gun. See Commonwealth v. Brown, 50 Mass. App. Ct. 253, 257 (2000) (no direct evidence of firearm possession, “such as by observation, fingerprints, or paraffin tests”).
“In considering whether the jury could find the existence of each element of the crime charged, we do not weigh the supporting evidence against conflicting evidence. While the inferences drawn must be reasonable, they ‘need not be necessary or inescapable.’ That evidence is conflicting does not demand a required finding of not guilty. The jury are free to believe or disbelieve any or all of the evidence they hear. However, evidence is not sufficient if it requires piling ‘inference upon inference,’ or requires ‘conjecture and speculation.’ ”
Commonwealth v. Merry, 453 Mass. 653, 660-661 (2009) (citations omitted). The appropriate question is, taking the evidence in the light most favorable to the Commonwealth and drawing all inferences in favor of the Commonwealth, was the evidence provided by the Commonwealth sufficient such that a rational juror could find guilt beyond a reasonable doubt? Id. at 660.
We conclude that here the Commonwealth has presented sufficient evidence, which need not be conclusive, to provide the necessary connection to the ammunition. First, the defendant did provide to the booking officer 46 Brett Street as his address.
3. Other issues, a. Expert testimony and confrontation clause. The defendant contends that the chemist and expert witness in
b. Ineffective assistance of counsel. Even assuming, arguendo, that Officer Wilbur gave an improper opinion that the baggies he found in the bedroom looked like the kind used in the drug trade, the lack of an objection did not “likely deprive[] the defendant of an otherwise available, substantial ground of defence,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), where the testimony proffered by the police drug expert, Detective Keating, mirrored Wilbur’s statement and was properly admitted.
c. Closing argument. The defendant argues for the first time on appeal that the prosecutor misstated the law when he told the
Nor was there any error when the prosecutor argued, without objection, that the defendant “verified” his address when he signed the booking sheet. While the term “verify” may have a formal legal definition, it also has an informal meaning, “to confirm or establish the authenticity or existence of by examination.” Webster’s Third New Inti. Dictionary 2543 (1993). In the latter sense, the prosecutor’s argument was proper.
Conclusion. None of the alleged errors to which the defendant points requires relief. The motion judge did not err in denying the defendant’s motion to suppress and no reversible error has been shown on the part of the trial judge, defense counsel, or the prosecutor.
Judgments affirmed.
Except where otherwise noted, the evidence and findings relevant to the motion to suppress were consistent with the trial evidence.
The trial evidence does not make clear whether the box of .25 caliber ammunition was found during the protective sweep or after the defendant consented to a search of the apartment. At the conclusion of the suppression hearing, however, the motion judge clearly found that the .25 caliber ammunition was found during the protective sweep. The defendant does not challenge this finding on appeal.
The motion judge also ruled that this box of ammunition was found in plain view. The box was photographed before it was moved and the photographs were introduced at trial, but they have not been made part of the record on appeal. The defendant does not challenge the motion judge’s conclusion that the evidence was in plain view.
Putting aside the question of the admissibility of the chemist’s expert testimony, which we discuss infra, there is properly no dispute that the evidence was sufficient to establish that the defendant possessed the cocaine with an
We are unpersuaded by the defendant’s argument that the booking sheet was improperly admitted as an adoptive admission. Merely because the defendant urged the jury to conclude at trial, and now repeats the claim on appeal, that he never told the booking officer that he lived at 46 Brett Street, the argument does not become fact. To the contrary, the booking officer testified that the defendant told him he lived at 46 Brett Street; that the booking officer recorded that address on the booking sheet; and that the defendant signed the booking sheet. The evidence regarding the defendant’s address was properly admitted as an admission or adoptive admission, and there was no error. See generally Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001); Commonwealth v. Shea, 460 Mass. 163, 170-172 (2011); Mass. G. Evid. § 801(d)(2)(A), (B) (2011).
In a supplemental memorandum of law the defendant contends that the
Insofar as the defendant now appears to contend that there is a chain of custody question regarding the route of the contraband from the police to the primary expert and then to Khan as the confirmatory expert, we would note that the issue was not squarely so presented to the judge. In any event, Khan testified as to standard chain of custody procedures, and on cross-examination acknowledged that the chemists relied on “evidence coming into you by the police departments.” Any alleged weakness in the chain of custody went to the weight and not to the admissibility of the evidence. See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992).
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