Com. v. Arias

• Decision Date: 12 February 1991
• Docket Number: No. 89-P-1114,89-P-1114
• Citation: 29 Mass.App.Ct. 613,563 N.E.2d 1379
• Parties: COMMONWEALTH v. Andre ARIAS (and four companion cases). 1
• Court: Appeals Court of Massachusetts

Page 1379

563 N.E.2d 1379

29 Mass.App.Ct. 613

COMMONWEALTH v. Andre ARIAS (and four companion cases). ¹

No. 89-P-1114.

Appeals Court of Massachusetts Plymouth.

Argued Sept. 17, 1990.

Decided Dec. 18, 1990.

Further Appellate Review Granted

Feb. 12, 1991.

Stephen H. Merlin, Brockton, for Andre Arias.

M. Page Kelley, Committee for Public Counsel Services, for Jose A. Nunez.

Kevin Connelly, Marshfield, for Melvin Diaz.

Thomas J. Amoroso, Boston, for Jose Gonzalez.

William M. Leonard, North Scituate, for Rafael D. Mehejia.

John P. Corbett, Asst. Dist. Atty., for Com.

Before WARNER, C.J., and FINE and PORADA, JJ.

WARNER, Chief Justice.

After a jury-waived trial in the Superior Court, each of the defendants was convicted of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b )(1), as in effect prior to St.1988, c. 124. Their appeals raise common and discrete issues.

On January 11, 1988, State Trooper Anthony Thomas, a member of the narcotics unit of the office of the district attorney for Plymouth County, went to an apartment building at 227 North Main Street in Brockton. ² There, he was met by a black male named Angelo who escorted Thomas to apartment twelve on the third floor. Angelo knocked on the door, spoke in "broken English" with a person inside the apartment through a crack in the door, slid $20 which he had obtained from Thomas through the crack and received a plastic bag containing .77 grams of twenty-seven percent cocaine in return. Thomas was unable to observe any occupant of the apartment.

The trooper returned to the apartment on January 12, 1988, and consummated another transaction. When he knocked on the apartment door, Thomas heard a noise like "wood being removed from a metal object" and a "thump". A person with a "dark-skinned hand" opened the door the width that a chain lock allowed. Thomas exchanged $20 for a plastic bag containing .9 grams of twenty-five percent cocaine. Again, Thomas could not identify any person in the apartment.

At 5:45 A.M. on January 13, 1988, six police officers executed a no-knock search warrant at the apartment. The front door was opened with a battering ram. As this was occurring, an officer stationed outside on a porch observed a flickering candle and two or three people run from a bedroom. Another officer, positioned in the driveway, saw a light go on, a kitchen window opened, and three tin foil packages thrown by an arm coming out the window. One package fell at the officer's feet and was empty; the other two landed on an adjacent roof top; one contained twenty-nine plastic bags (42.08 grams) of thirty-one percent cocaine and the other contained twenty-seven plastic bags (24.35 grams) of thirty-one percent cocaine.

The police officers found the five defendants in the living room. Two of them were "bare chested." A search of the kitchen turned up six plastic bags (7.54 grams) of thirty-one percent cocaine and two containers of lactose, ³ all on open shelves. Each defendant carried cash. ⁴ Each defendant denied that he lived in the apartment ⁵ and each stated that he was an unemployed construction worker and came from the Dominican Republic.

The apartment was sparsely furnished. ⁶ There was only a mattress in the bedroom, a couch and a chair in the living room, and some men's clothing, not linked to any defendant, strewn about. When the police entered, the front door had been barricaded inside with two bracketed lengths of two-by-four boards across the door, a dead bolt, a slide bolt and a chain lock. ⁷ A second door led to an outer porch and was secured from the inside by nailed two-by-four boards and plywood covering the glass portion. On top of the plywood was a calculator and behind it $400 in cash. In the bathroom, the police discovered an overflowing bucket of water under the spout in the bathtub; water was dripping or running slowly from the spout. A State trooper testified that he had seen such an arrangement almost every time there were similar barricades and that it is typically used to dispose of bulk cocaine by dissolving it.

1. The motions to dismiss the indictments. The defendants Arias, Diaz and Mehejia challenge the denials of their motions to dismiss the indictments. Each relies on Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982), and claims that the evidence presented to the grand jury showed no more than mere presence in the apartment. There was no error.

The general and long-standing rule is that a "court will not review the competency or sufficiency of the evidence before a grand jury." Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984). An exception to that rule was laid down in McCarthy, supra, 385 Mass. at 163, 430 N.E.2d 1195--"[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." 385 Mass. at 163, 430 N.E.2d 1195. "[A] requirement of sufficient evidence to establish the identity of the accused and probable cause to arrest him is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Commonwealth v. O'Dell, supra, 392 Mass. at 451, 466 N.E.2d 828. "Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Ibid., quoting from Smith, Criminal Practice and Procedure § 104 (2d ed. 1983). The question in this case is whether the grand jury was presented with sufficient evidence which would justify a finding that when the police officers made the arrests, they had "reasonably trustworthy information sufficient ... to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting from Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949). See Commonwealth v. O'Dell, supra, 392 Mass. at 450, 430 N.E.2d 1195; Commonwealth v. Brzezinski, 405 Mass. 401, 402, 540 N.E.2d 1325 (1989).

Here, unlike McCarthy, there was evidence before the grand jury of more than mere presence of the defendants. The purchase of cocaine on the two days preceding the execution of the warrant, the heavily barricaded apartment, the time of day, the attempt to dispose of cocaine, the cocaine and other materials found in the search of the apartment, the sparse furnishings, the cash found on each of the defendants and in the apartment, and their unemployed status provided ample probable cause to arrest. "In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Commonwealth v. Hason, supra, quoting from Brinegar v. United States, supra, 338 U.S. at 175, 69 S.Ct. at 1310.

2. The motions for required findings of not guilty. Each of the defendants presented a motion for a required finding of not guilty at the close of the Commonwealth's case, ⁸ arguing that the evidence established no more than mere presence at a scene where cocaine was found. Our review of the denials of the motions is under familiar standards. We look to see whether any rational trier of fact, taking the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth, could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979); Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989).

The defendants were charged with trafficking in cocaine with a net weight of twenty-eight or more but less than 100 grams. G.L. c. 94C, § 32E(b )(1), as in effect prior to St.1988, c. 124. Possession of the quantity of cocaine found in the apartment and on the adjacent roof, as well as the packaging of the drug, permitted an inference of trafficking. See Commonwealth v. Pratt, 407 Mass. 647, 653, 555 N.E.2d 559 (1990), and cases cited. The crucial question is whether the Commonwealth presented sufficient evidence that each defendant possessed the cocaine found. "Possession implies 'control and power,' exclusive or joint ..., or, in the case of 'constructive possession,' knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. at 409, 540 N.E.2d 1325, quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Brzezinski, supra, quoting from Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 426, 475 N.E.2d 81 (1985). "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.' " Brzezinski, supra, 405 Mass. at 409, 410, 540 N.E.2d 1325, quoting from Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977). "An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.' " Commonwealth v. Merola, 405 Mass. at 533, 542 N.E.2d 249, quoting from Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). "The Government ... need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt." Commonwealth v. Merola, supra, quoting from United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985). "Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and...