Com. v. Deagle

• Decision Date: 29 September 1980
• Citation: 10 Mass.App.Ct. 563,409 N.E.2d 1347
• Parties: COMMONWEALTH v. Stephen J. DEAGLE.
• Court: Appeals Court of Massachusetts

Page 1347

409 N.E.2d 1347

10 Mass.App.Ct. 563

COMMONWEALTH v. Stephen J. DEAGLE.

Appeals Court of Massachusetts, Suffolk.

Argued April 16, 1980.

Decided Sept. 29, 1980.

J. W. Carney, Jr., Boston, for defendant.

William R. Wilson, Legal Assistant to the Dist. Atty., Boston (Michael J. Traft, Asst. Dist. Atty., with him), for the Commonwealth.

Before ARMSTRONG, ROSE and PERRETTA, JJ.

ARMSTRONG, Justice.

Around 12:45 P.M. on February 13, 1979, police officers who had been observing the occupants of a car through binoculars for twenty minutes surrounded the car and saw the driver, who appeared to be "extremely high on something", take a plastic bag from the seat between himself and the front-seat passenger and stash it under the seat. The police officers opened the car, smelled an odor recognized by them to be that of burning phencyclidine (otherwise known as "PCP" or "angel dust"), and arrested the three occupants. The bag was found to contain twenty-seven packets, described by one of the police officers as "ten-dollar packets", of a greenish "herb" mixed with angel dust.

The defendant was the passenger in the rear seat. He, like the driver and the front-seat passenger, had been observed drinking and smoking. He was charged with "conspiracy to violate the (C)ontrolled (S)ubstance(s) (A)ct." ¹ Asked for particulars, the Commonwealth responded that the "manner" of the offense was: "Did conspire with others to violate the (C)ontrolled (S) ubstance(s) Act at or around (1310 Dorchester Avenue, Dorchester). Specifically, the drug PCP . . . ." The "means" was said to be: "Was in automobile with others together with many bags or packets of the above mentioned class C substance." The defendant moved for a further bill of particulars, asking for disclosure of "(t)he specific violation of the (C) ontrolled (S)ubstance(s) (A)ct alleged to have been the object of the conspiracy." That motion was resisted by the Commonwealth and was denied by a judge other than the trial judge, who would not thereafter reconsider that denial, in deference to the ruling of the first judge. The reason for the original denial, apparently, was that the motion had been filed only one day before the scheduled date of trial; but the consequences of the denials were unfortunate, because the obscurity of the charge led to needless wrangling between counsel during the trial and to troublesome voids in closing arguments and in the judge's instructions to the jury. The latter found the defendant guilty as charged; and counsel were still debating, as late as the time of sentencing, precisely what section of the Controlled Substances Act the jury had found the defendant guilty of conspiring to violate-a question of controlling significance under G.L. c. 94C, § 40, which makes a conspiracy to violate any provision of the Controlled Substances Act punishable by the maximum penalty prescribed for violation of that provision. ² See Commonwealth v. Soule, --- Mass.App. --- ^a, 384 N.E.2d 235 (1979). Commonwealth v. Dellinger, --- Mass.App. --- ^b, 409 N.E.2d 1337. See also Commonwealth v. Mitchell, 350 Mass. 459, 465 n.6, 215 N.E.2d 324 (1966).

Defense counsel had moved for a directed verdict at the close of the Commonwealth's evidence (the defendant thereafter put on no witnesses), and the motion was denied. For purposes of reviewing the correctness of that ruling, we make certain assumptions in favor of the Commonwealth: namely, that the charge, as specified, was conspiracy to possess angel dust with intent to distribute it; that knowing possession of twenty-seven "ten-dollar" packets of angel dust would justify a finding of intent to distribute; and that a conspiracy simply to possess angel dust is a lesser offense included within a charge of conspiracy to possess angel dust with intent to sell. See Commonwealth v. Dellinger, ante, --- Mass.App. at --- ^c, 409 N.E.2d 1337.

The evidence was not particularly brief (indeed, it was somewhat repetitious), but it was notable for its lack of detail. It was as summarized in the first paragraph of this opinion. No detail of significance has been omitted from that summary, other than that no person approached or left the car during the twenty minutes it was under observation by the police, that the two occupants in the front seat were observed turning around talking to the defendant in the rear seat, that the police patted down each of the three occupants, and that the pat-down of the defendant revealed no contraband. There was no evidence as to what the pat-down of the defendant did reveal (e. g., the presence or absence of cigarettes), nor was there evidence concerning the results of the pat-down of the front-seat occupants. The driver was described as "high on something", but there was no testimony concerning the condition of the defendant or the front-seat passenger. There was no evidence of statements by any of the three at the time of arrest or of actions which could be interpreted as inculpatory, other than the driver's act of concealing the plastic bag of PCP packets under the front seat.

The charge, according to the assumption set out above, was conspiracy to possess angel dust with intent to sell. The essence of such a charge is not possession, but an agreement to possess. Commonwealth v. Zakas, 358 Mass. 265, 268-269, 263 N.E.2d 446 (1970). See Commonwealth v. Winter, --- Mass.App. ---, --- ^d, 402 N.E.2d 1372 (1080). There is no evidence in this case of an agreement concerning possession unless such an agreement can be inferred from the fact of possession. See Commonwealth v. Shea, 323 Mass. 406, 412-413, 82 N.E.2d 511 (1948). If the evidence warrants a finding that the defendant possessed angel dust in concert with the other occupants of the car, we assume, without deciding, that such actual joint possession implies an agreement to possess and hence may be charged as a conspiracy to possess. But, as independent evidence of an agreement is lacking, that is to say, as the train of logic is that the existence of a conspiracy is to be inferred, if at all, from the fact of doing the very thing which is the object of the alleged conspiracy, it follows that a conspiracy is not made out unless the act, in this case possession, is itself made out. Compare United States v. Murray, 527 F.2d 401, 409 (5th Cir. 1976). See Commonwealth v. Schoening, --- Mass. ---, --- - --- ^e, 396 N.E.2d 1004 (1979). Mere presence in the company of one known to possess a controlled substance has not been a crime since the repeal of G.L. c. 94, § 213A (by St.1971, c. 1071, § 2), except where the substance is heroin (G.L. c. 94C, § 35, as amended by St.1972, c. 806, § 25). We look, therefore, to see if the evidence warranted a finding that the defendant possessed angel dust.

It is well settled that, to warrant a finding of possession of contraband, "(it is not enough to place the defendant and the (contraband) in the same car." Commonwealth v. Boone, 356 Mass. 85, 87, 248 N.E.2d 279, 280 (1969). Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977); Commonwealth v. Bennefield, 373 Mass. 452, 453, 367 N.E.2d 832 (1977). Knowledge of the contraband is an essential element. Commonwealth v. Boone, supra. Commonwealth v. Jackson, 369 Mass. 904, 916-917, 344 N.E.2d 166 (1976). Commonwealth v. Almeida, --- Mass. ---, --- ^f, 409 N.E.2d 776 (1980). A majority of the panel think that the evidence warranted a finding that the defendant knew of the bag and its contents. From the evidence of one of the policemen that he could smell burning angel dust, the jury could infer that angel dust was being smoked in the car and could infer that the angel dust came from the bag; and although it is possible that one could be in the company of others who are smoking a controlled substance without realizing that fact, an inference to the contrary is permissible because it is reasonable and possible; it need not be necessary or inescapable. Commonwealth v. Albano, 373 Mass. at 134, 365 N.E.2d 808, and cases cited. Commonwealth v. Xiarhos, 2 Mass.App. 225, 232, 310 N.E.2d 616 (1974), and cases cited. See also Commonwealth v. Nelson, 370 Mass. 192, 200-201, 346 N.E.2d 839 (1976); Commonwealth v. Casale, --- Mass. ---, --- ^g, 408 N.E.2d 841 (1980). Compare the facts of Commonwealth v. Albano, supra ; contrast those of Commonwealth v. Boone, supra ; Commonwealth v. Bennefield, supra ; Commonwealth v. Scarborough, 5 Mass.App. 302, 362 N.E.2d 546 (1977).

Knowledge of the controlled substance, however, is not the equivalent of possession. Commonwealth v. Gray, 5 Mass.App. 296, 299, 362 N.E.2d 543 (1977). Possession implies "control and power" (see Commonwealth v. Harvard, 356 Mass. 452, 458, 253 N.E.2d 346 (1969); Commonwealth v. Smith, 3 Mass.App. 144, 146, 324 N.E.2d 924 (1975)), exclusive or joint (see Commonwealth v. Dinnall, 366 Mass. 165, 168-169, 314 N.E.2d 903 (1974)), or, in the case of "constructive possession, knowledge coupled with the ability and intention to exercise dominion and control (see Commonwealth v. Lee, 2 Mass.App. 700, 704, 319 N.E.2d 732 (1974); Commonwealth v. Nichols, 4 Mass.App. 606, 613, 356 N.E.2d 464 (1976)). Possession may often be inferred from proximity conjoined with knowledge; but the reasonableness of such an inference depends upon the circumstances. See Whitebread & Stevens, Constructive Possession in Narcotics Cases, 58 Va.L.Rev. 751 (1972). Being a passenger in the rear seat of a...