Com. v. Clarke

• Decision Date: 03 April 1998
• Docket Number: No. 95-P-1408,95-P-1408
• Citation: 44 Mass.App.Ct. 502,692 N.E.2d 85
• Parties: COMMONWEALTH v. Mark CLARKE. 1
• Court: Appeals Court of Massachusetts

Page 85

692 N.E.2d 85

44 Mass.App.Ct. 502

COMMONWEALTH v. Mark CLARKE. ¹

No. 95-P-1408.

Appeals Court of Massachusetts,

Suffolk.

Argued Nov. 5, 1997.

Decided April 3, 1998.

Allison Young Beauparlant, Haverhill, for defendant.

Kristine Luongo Tammaro, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and DREBEN and FLANNERY, JJ.

WARNER, Chief Justice.

The defendant was convicted by a Superior Court jury of possession of a class B substance (cocaine), G.L. c. 94C, § 32A(c ), possession of a class D substance (marihuana), G.L. c. 94C, § 32C, unlawful possession of a sawed-off shotgun, G.L. c. 269, § 10(c ), three counts of unlawful possession of a firearm, G.L. c. 269, § 10(h ), and unlawful possession of ammunition, G.L. c. 269, § 10(h ). On appeal, he challenges the sufficiency of the evidence against him, and argues that (1) three pretrial motions were erroneously denied; (2) the trial judge erred in ruling that the probation records of an unavailable witness were inadmissible; and (3) his motion for a new trial based on ineffective assistance of counsel should have been granted. Because we conclude that the evidence was insufficient to support his conviction for illegal possession of a sawed-off shotgun, G.L. c. 269, § 10(c ), we reverse the judgment with respect to that charge. We affirm, however, in all other respects.

Taken in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). On the morning of May 15, 1991, Detective Elton M. Grice, of the Boston police department, observed a confidential informant enter the target location on Hiawatha Road to participate in a controlled drug purchase. After leaving the building, a blue and brown three-family wood frame apartment house, the informant presented Grice with cocaine purchased from the occupant of apartment one. Grice subsequently applied for and obtained a search warrant for apartment one, 6 Hiawatha Road, the address provided by the informant. The warrant also described the building as a "blue and [b]rown three family wood frame apartment building." Grice and several other officers returned to the same location later that afternoon to execute the warrant.

Once inside the apartment, police officers observed the defendant and another man, later identified as Johnny Junior, ² running from the rear bedroom toward the kitchen. Two additional men were observed sitting on a couch. The defendant was next seen running back into the hallway leading from the kitchen to the bedroom, at which point he was apprehended by Grice. A search of the closet in the rear bedroom yielded a plastic bag containing twenty-five individually packaged pieces of rock cocaine concealed inside a shoe and a bag of marihuana. Cash in the amount of $840 and some small red plastic bags were found on top of a chest of drawers in the bedroom, along with a social security card and birth certificate bearing the name "Mark Clarke." Underneath a mattress in the same room, police discovered a loaded, .22 caliber handgun and a brown paper bag containing two .38 caliber handguns. A search of the bathroom revealed an additional $825 in plain view. Police then proceeded to search the front bedroom and discovered, among other items, a loaded, sawed-off shotgun concealed underneath the bed.

After finding the drugs and the firearms, the officers searched all four men and the defendant was found to possess a set of keys that opened both the apartment door and the main door to the building. The two men who had been sitting on the couch were released, and the defendant and Johnny Junior were given Miranda warnings and placed under arrest. ³ Before being escorted to the police station, the defendant, who was not wearing a shirt, retrieved one from the rear bedroom.

1. Sufficiency of the evidence on the element of possession. The defendant first challenges the judge's denial of his motion for a required finding of not guilty on all charges. He argues that the evidence adduced at trial was insufficient to prove that he constructively possessed any of the illegal contraband recovered from the apartment and that his motion, therefore, should have been granted. We think the evidence was sufficient to establish the defendant's constructive possession of the cocaine, the three handguns, and the ammunition found in the rear bedroom. ⁴ We reach a different conclusion, however, with respect to the sawed-off shotgun.

When the defendant was apprehended, he was not in actual possession of any drugs or weapons. Accordingly, the Commonwealth proceeded at trial on a theory of constructive possession. Proof of constructive possession requires a showing "that the defendant was aware of the presence of the particular [item of contraband] in question ..., and that he had the ability and intention to exercise control over it." Commonwealth v. Araujo, 38 Mass.App.Ct. 960, 961, 650 N.E.2d 352 (1995). While a defendant's presence in an area where contraband is found is not enough to establish constructive possession, "presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409, 410, 540 N.E.2d 1325 (1989). A defendant's "residential status at a premises is a relevant inculpatory factor to be considered in determining whether he can be regarded as being in constructive possession of contraband found on the premises, since it indicates more than mere presence." Commonwealth v. Handy, 30 Mass.App.Ct. 776, 781 n. 5, 573 N.E.2d 1006 (1991).

Here, there was ample circumstantial evidence that the defendant lived in the apartment and occupied the rear bedroom, and that he was in constructive possession of the cocaine and three loaded handguns recovered from that room. First, when he was arrested, the defendant was in possession of a set of keys which opened the main door to the building as well as the apartment door. Moreover, he was not only present in the apartment when police executed the search warrant, but was observed running from the rear bedroom moments after police knocked and entered to execute the search warrant. A birth certificate and social security card bearing his name were also found on a bureau inside the room. ⁵ Finally, when given the opportunity to retrieve a shirt before going to the police station, the defendant returned to the rear bedroom to do so. In these circumstances, the jury could reasonably have inferred that the defendant occupied the rear bedroom and was, indeed, in constructive possession of the contraband discovered therein. See Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 912, 499 N.E.2d 1233 (1986) (constructive possession supported by "evidence that the contraband was found in proximity to personal effects of the defendant in areas of the dwelling ... to which other evidence indicates the defendant has a particular relationship"); Commonwealth v. Rivera, 31 Mass.App.Ct. 554, 556-557, 581 N.E.2d 498 (1991) (defendant's personal belongings in room and closet in which drugs were found sufficient to support an inference of constructive possession).

In contrast, there was no evidence linking the defendant or any of his possessions to the front bedroom. See Rivera, supra at 558, 581 N.E.2d 498 (finding insufficient evidence to link the defendant to the smaller of two bedrooms in an apartment, notwithstanding the fact that she occupied the larger of the bedrooms). Indeed, the items found in the front bedroom tended to show that someone other than the defendant occupied that room. ⁶ In these circumstances, we conclude that the evidence was not sufficient to prove that the defendant knew of the existence of the sawed-off shotgun found under the bed in that room, or that he "had the intent or ability to exercise dominion or control over [it]." Ibid. ⁷ The defendant's conviction for possession of a sawed-off shotgun, therefore, must be reversed.

2. Motion to suppress. The defendant next challenges the judge's denial of his pretrial motion to suppress the drugs, weapons, and ammunition discovered in the apartment. He maintains that the search warrant failed to describe with particularity the place to be searched, as required by the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, § 2. In support of his argument, the defendant contends that the warrant authorized a search of apartment one at 6 Hiawatha Road in Mattapan, while the actual premises searched may have been apartment one at 2 Hiawatha Road. The Commonwealth acknowledges the statutory and constitutional requirements regarding descriptions contained in search warrants, but argues that in this case, "the description [on the warrant was] sufficient to enable the executing officer[s] to locate and identify the premises with reasonable effort", and that there was, therefore, no risk that the wrong building was mistakenly searched. Commonwealth v. Rugaber, 369 Mass. 765, 768, 343 N.E.2d 865 (1976), quoting from United States v. Sklaroff, 323 F.Supp. 296, 321 (S.D.Fla.1971). We agree.

Initially, we note that it is not at all clear that the number 6 did not appear on the building searched pursuant to the warrant. At the suppression hearing, the defendant offered a map from the assessors' records, indicating that the lot on which the house was located was designated as "number 2" Hiawatha Road. However, Detective Grice, the officer who executed the warrant, testified that he observed the number 6 on the front door of the building in question just prior to doing so. In light of the judge's denial of the defendant's motion, we assume that she found Grice's testimony credible. See Commonwealth v. Houle, 35...