Com. v. Frongillo

Citation66 Mass. App. Ct. 677,850 N.E.2d 1060
Decision Date10 July 2006
Docket NumberNo. 04-P-1459.,04-P-1459.
PartiesCOMMONWEALTH v. Joseph FRONGILLO (No. 1).
CourtAppeals Court of Massachusetts

Michael A. Cioffi, East Boston, for the defendant.

Christina E. Miller, Assistant District Attorney (Mark A. Hallal, Assistant District Attorney, with her) for the Commonwealth.

Present: LAURENCE, DOERFER, & MILLS, JJ.

DOERFER, J.

The defendant was convicted by a Superior Court jury of two counts of unlawful possession of a firearm without a firearm identification (FID) card, G.L. c. 269, § 10(h), and one count of unlawful possession of ammunition without an FID card, G.L. c. 269, § 10(h). During the investigation of a shooting incident in which the victim identified the defendant as the shooter,1 the police discovered two firearms and some ammunition in two closets in an apartment occasionally occupied by the defendant. There was no claim that these items had any connection to the shooting incident. The appeals of the convictions on those other indictments relating to the shooting do not present any remarkable appellate issues and are disposed of in a memorandum and order pursuant to rule 1:28 also issued this day. Commonwealth v. Frongillo (No. 2), 66 Mass.App.Ct. 1115, 850 N.E.2d 619 (2006).

At the close of the Commonwealth's case and at the close of all the evidence,2 the judge denied motions for a required finding of not guilty on the three indictments charging violations of G.L. c. 269, § 10(h ). The issue we review in this opinion is whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to permit any rational trier of fact to find beyond a reasonable doubt that the defendant had constructive possession of the firearms and ammunition discovered by the police inside two closets. See Commonwealth v. Sespedes, 442 Mass. 95, 96, 810 N.E.2d 790 (2004). We conclude that there was insufficient evidence to sustain a finding of constructive possession.

Facts. The evidence relating to constructive possession was as follows. The police, who were looking for the defendant and for evidence relating to a shooting, went to an apartment located at 428 Revere Street in Winthrop.3 Lisa Carrozza, the woman who was renting the Winthrop apartment, answered the door, allowed the police to enter, and consented to a search. Carrozza was the defendant's fiancée at that time. The defendant was not present in the apartment. In response to questions from the police, Carrozza led them to two closets. In a bedroom closet, the police found a .22 caliber revolver, which was not stored in a case, and a locked gun case that was later found to contain ammunition, but no firearm.4 The defendant's fingerprints were not found on the revolver. The closet, which had a door but no locks, contained both men's and women's clothing, as well as towels and videotapes. There was no evidence as to the size or other identifying information of the men's clothing relative to either the defendant or Carrozza's husband, who had been living in the apartment before he moved out several months earlier.

In a second closet located in a common area near the living room, the police recovered another firearm case containing a shotgun and shotgun ammunition. The shotgun case was "being blocked by something," apparently a plastic bag that, upon removal, revealed the case.5 This closet also contained unidentified men's and women's clothing,6 as well as a mop and other household items. Neither the defendant nor Carrozza had a license to carry a firearm or an FID card.

The apartment is located on the first floor of a two-family house and includes a finished basement.7 The landlord, who occupied the upstairs unit, testified that he frequently saw the defendant at the apartment after Carrozza's husband left. The landlord had not seen the estranged husband in more than three months prior to the night of the shooting. Two to four weeks after the husband moved out, the landlord observed the defendant at the apartment at all hours of the day, even when Carrozza was not there. The landlord often saw a car driven by the defendant parked in the driveway in the daytime and overnight. He saw the defendant daily at the apartment after the shooting incident and observed him moving things out on the last day he was seen there. After her husband moved out, Carrozza paid the rent in cash or, occasionally, by check. The defendant did not pay rent to the landlord and was not listed on the lease. There was no evidence that any personal belongings or other items containing the defendant's name, such as bills, letters, or identification, were found in the apartment.

Discussion. To permit a finding of constructive possession there must be evidence sufficient to infer8 that the defendant not only had knowledge of the items, but had the ability and intention to exercise dominion and control over them. See, e.g., Commonwealth v. Sann Than, 442 Mass. 748, 751, 817 N.E.2d 705 (2004). Our review of the evidence persuades us that, although the evidence was sufficient to permit a reasonable inference that the defendant had knowledge of the items and an ability to control them, there was insufficient evidence on the element of his intent to do so.9

The jury could reasonably infer that the defendant resided in the apartment or at least spent a great deal of time there. He and his car were frequently sighted by the landlord10; the closets contained men's and women's clothing; and Carrozza's husband had moved out, permitting a reasonable inference that the clothes did not belong to him.11 Although not overwhelming, taken in the light most favorable to the Commonwealth, this evidence provided a sufficient basis for a juror to infer that the defendant knew about and had the ability to exercise dominion and control over the guns and ammunition discovered in the bedroom and common area closets. See Commonwealth v. Nichols, 4 Mass.App.Ct. 606, 613, 356 N.E.2d 464 (1976) (heroin, found in various generally inaccessible locations in the defendant's apartment, warranted an inference that the defendant had placed it there or had at least known of its existence); Commonwealth v. Gonzalez, 42 Mass.App. Ct. 235, 237, 675 N.E.2d 1177 (1997) (ability to exercise control is apparent from the defendant's right of access).

However, proof of the defendant's intent to exercise dominion and control is substantially weaker. See Commonwealth v. Delarosa, 50 Mass.App.Ct. 623, 628, 740 N.E.2d 1014 (2000). See also Commonwealth v. Navarro, 39 Mass.App. Ct. 161, 168, 654 N.E.2d 71 (1995) (reasonable inference that the defendant was aware of the presence of drugs discovered in the apartment, but insufficient to show that the defendant had the ability and intention to exercise dominion and control over the drugs). 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, 692 N.E.2d 103 (1998). In Delarosa, the court affirmed the conviction for possession of cocaine, but reversed the conviction for possession of a firearm, even though the drugs and gun were discovered in the same hidden compartment of a closet. Although "not overwhelming," the court determined there was sufficient evidence connecting the defendant to the apartment12 and to infer that the defendant knew there was a substantial amount of high quality cocaine in the closet and that he exercised dominion and control over the cocaine by removing seventy grams, putting it into a McDonald's bag that he also removed from the hidden compartment, and then leaving the apartment with it. Commonwealth v. Delarosa, 50 Mass.App.Ct. at 628, 740 N.E.2d 1014. The court reasoned, however, that the evidence relating to the gun found in the same closet was "substantially weaker," and although "it seems likely" that the defendant knew the gun was in the closet, the evidence was not sufficient to establish "that he intended to or did exercise dominion or control over it." Ibid. The court observed that the gun "was not in the Honda [which the defendant was driving when stopped by the police] or on the defendant's person at the time of his arrest. Nor was there evidence . . . of a personal connection between the defendant and the room in which the stash was located." Ibid.

Similar to the situation in Delarosa, here the guns and ammunition discovered in the Winthrop apartment were not found on the defendant's person. Indeed, the defendant was not present at (or in the vicinity of) the apartment at the time of the search.13 Although he had access to the closets, and thus knowledge of the items and the ability to control them could be inferred, such evidence was insufficient to permit a reasonable inference that he intended to exercise dominion and control over them. See ibid. Except for the unidentified men's clothing, there were no other personal effects connecting the defendant to the guns and ammunition found in the closets. See Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 912, 499 N.E.2d 1233 (1986) (possession may be inferred "from evidence that the contraband was found in proximity to personal effects of the defendant in areas of the dwelling, such as a bedroom or closet, to which other evidence indicates the defendant has a particular relationship").14 There was also no other evidence connecting the defendant to the guns and ammunition. See Commonwealth v. Brown, 50 Mass.App.Ct. 253, 257, 737 N.E.2d 1 (2000) (no direct evidence of possession, "such as by observation, fingerprints, or paraffin tests").

Furthermore, evidence of the defendant's involvement in a shooting is insufficient in this case to permit an inference that he had constructive possession of unrelated firearms and ammunition found in the apartment. See Commonwealth v. Caterino, 31 Mass.App.Ct. 685, 689 & n. 8, 583 N.E.2d 259 (1991) ("behavior suggesting that the defendant may have...

To continue reading

Request your trial
33 cases
  • Commonwealth v. Summers
    • United States
    • Appeals Court of Massachusetts
    • September 7, 2017
    ...was driving inferred where backpack also contained defendant's paystub and work shirt). Contrast Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 684–686, 850 N.E.2d 1060 (2006) (firearms and ammunition found in closets of apartment occasionally occupied by defendant warranted infe......
  • Commonwealth v. ELYSEE
    • United States
    • Appeals Court of Massachusetts
    • September 29, 2010
    ...flight that was indicative of consciousness of guilt-it was indeed argued to the jury as such. See Commonwealth v. Frongillo, 66 Mass.App.Ct. 677, 683 n. 13, 850 N.E.2d 1060 (2006) (“we note that when the defendant is present at or near the scene where the contraband is found ... the behavi......
  • Commonwealth v. Romero
    • United States
    • Appeals Court of Massachusetts
    • November 14, 2011
    ...the defendant knew about and had the ability to exercise dominion and control over [the firearm] ....” Commonwealth v. Frongillo, 66 Mass.App.Ct. 677, 681–682, 850 N.E.2d 1060 (2006). The defendant next claims that there was insufficient evidence to establish that he had the ability and int......
  • Com. v. Rabb
    • United States
    • Appeals Court of Massachusetts
    • September 24, 2007
    ...of the items, but also had the ability and intention to exercise dominion and control over them." Commonwealth v. Frongillo (No. 1), 66 Mass.App.Ct. 677, 680, 850 N.E.2d 1060 (2006). "The requisite proof of possession `may be established by circumstantial evidence, and the inferences that c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT