Com. v. Gonzalez

• Decision Date: 13 August 2008
• Docket Number: SJC-10015
• Citation: 892 N.E.2d 255,452 Mass. 142
• Parties: COMMONWEALTH v. Nelson GONZALEZ (and five companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

892 N.E.2d 255

452 Mass. 142

COMMONWEALTH v. Nelson GONZALEZ (and five companion cases¹).

SJC-10015

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 7, 2008.

Decided August 13, 2008.

Nadell Hill, Brighton, for Mariano L. Gomez.

Dennis M. Powers for Nelson Gonzalez.

Michael J. Fellows, Northampton, for Jonathan S. Maldonado.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

Following a bench trial, the three defendants — Nelson Gonzalez, Jonathan S. Maldonado, and Mariano L. Gomez — were convicted of possessing heroin with intent to distribute, in violation of G.L. c. 94C, § 32 (a), and violating the controlled substance law within one hundred feet of a park or playground, in violation of G.L. c. 94C, § 32J. They were acquitted of trafficking in cocaine, in violation of G.L. c. 94C, § 32E (b) (2). We granted the defendants' applications for direct appellate review to consider their contention that the verdict of not guilty on the trafficking charge is inconsistent with the guilty verdict on the charge of possessing heroin with intent to distribute, and that a judge may not render inconsistent verdicts. The defendants also argue that there was insufficient evidence presented at trial to support a conviction for possession of heroin with intent to distribute. We affirm.

Background. The judge could have found the following facts. In the summer of 2004 the Holyoke police department began investigating suspected drug dealing at 101 Beech Street, a ten-unit residential apartment building in Holyoke next to a public park. During a ten to fifteen day period, officers conducting surveillance observed a number of people enter the building for very short periods of time, activity that the officers knew to be associated with narcotics transactions. The officers did not observe which apartment unit or units the visitors entered. As part of the investigation the police arranged for a confidential informant to purchase drugs in the building. The informant reported that the purchases² occurred in apartment 4L, that he purchased the drugs from one Geraldo Ruiz, and that another man, Hispanic, five feet, nine inches tall, and with light complexion and short black hair, was present during the purchases.³

On August 11, 2004, the officers applied for and obtained a search warrant for apartment 4L. Within the four hours before the officers entered the apartment, the same informant made a final controlled purchase in the apartment. Thirteen officers assembled at 101 Beech Street to execute the warrant. When the nine who went in the front door of the building arrived at the fourth floor door to apartment 4L, they knocked and identified themselves as police officers. They heard noises from within that at least one officer described as "scurrying." After between ten and thirty seconds elapsed, they forced the door open with a battering ram.

Immediately after entering the apartment several of the officers came to the living room, where they saw eight men. When Emilio Garcia, who was sitting on a couch, was ordered to lie on the floor, he dropped a key that was then partially obscured under his body. The key fit the lock to the apartment's front door. Erik Montalban was standing in front of a couch. When he was ordered to the floor, he dropped a key attached to a small plastic tag and a small bag that itself contained several empty plastic sandwich bags of a kind used to package cocaine and marijuana. When Luis Pimentel was raised from the floor after being handcuffed, three small, clear packets containing cocaine were found on the floor where he had been lying. All eight men were placed in handcuffs and were read their Miranda warnings. Subsequent searches of all eight revealed the following: Garcia had $116 on his person; Montalban had $961 in cash consisting mostly of one, five, ten, and twenty dollar bills; Pimentel had ten bags of cocaine and fifty-five dollars; Jose Acevedo possessed $200 and a set of keys; Jorge Davila had $187 in small denominations in his pockets; the defendant Gonzalez had $1,046 on his person and a set of keys to apartment 5L, the apartment above 4L, where he said he lived; the defendant Maldonado had $1,740; and the defendant Gomez had a total of $2,604 in his pockets.

The apartment was searched, and the four officers at the rear door were brought in. Officers testified that the apartment was sparsely furnished: there was a television, couch and chair or loveseat in the living room, a box spring and mattress in one bedroom, and a table and some chairs in the kitchen. A plastic key holder was found that contained five baggies of cocaine weighing a total of 6.09 grams. Between the couch and the wall, and visible from the middle of the room, was a white plastic bucket with its lid placed loosely on top. Inside the bucket was 11.02 grams of "crack" cocaine packaged in six bags that were bundled together, twenty-two grams of cocaine packaged in 125 bags, and nineteen additional bags of cocaine that, according to expert testimony, would sell for between sixty and sixty-five dollars each. Also in the bucket were seventy-one glassine packets of heroin, each marked "777," that would sell for ten dollars each, and $3,184. Behind the couch the officers found $177 in denominations of twenties and smaller, a film canister containing five bags of crack cocaine that would sell for thirty to fifty dollars each, and a tin box containing twenty-five bags of crack cocaine that would sell for twenty dollars each, and ten packets of heroin stamped "777." Attached to the inside of the front door were two heavy metal chains wrapped in electrical tape. The chains were not attached when the officers entered the apartment, and Officer Roger Goudreau testified that had they been, the officers would have been unable to enter. Above the dropped ceiling of the hallway running between the living room and the kitchen the officers found a box of sandwich bags. The key dropped by Montalban opened a closet in the common hallway on the fourth floor. In the closet was a pencil case containing four bags of cocaine worth approximately $120, homemade spoons, one of which had cocaine residue on it, black and clear baggies, and razor blades. A search, pursuant to a warrant, of apartment 5L revealed a document in the defendant Gonzalez's name and bearing the address of the apartment; $2,000; and a scale of the kind sometimes used to measure narcotics.

All eight men were charged with trafficking in between twenty-eight and one hundred grams of cocaine, possessing heroin with intent to distribute, and violating the controlled substance law within one hundred feet of a public park. They were tried together in a single jury-waived trial between January 23 and 26, 2006. Gomez was the only defendant to testify. He testified that he had recently sold a motor vehicle to someone who also lived at 101 Beech Street but in a different apartment than 4L, and that after collecting money from her he came to visit in apartment 4L. He also testified that he often keeps in his pockets the cash proceeds of his job at a garage. On January 31, 2006, the judge found five of the defendants, Pimentel, Montalban, Garcia, Davila, and Acevedo, guilty of all charges. The judge found the three defendants before this court, Gomez, Gonzalez, and Maldonado, not guilty of trafficking in cocaine, but guilty of possessing heroin with intent to distribute and violating the controlled substance law within one hundred feet of a public park. This court granted the applications for direct appellate review of these three defendants. The appeals of the remaining five defendants remain in the Appeals Court.

Sufficiency of the evidence. The three defendants before this court argue that there was insufficient evidence to prove that they were in possession of the heroin found in the apartment. The test we apply is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Commonwealth v. Arias, 29 Mass.App.Ct. 613, 617, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991). The Commonwealth concedes that because the judge's verdict did not reveal whether he relied on the theory of joint venture or constructive possession, the evidence must be sufficient to support both theories. See Commonwealth v. Flynn, 420 Mass. 810, 818-819, 652 N.E.2d 888 (1995).

"Proof of constructive possession requires the Commonwealth to show `knowledge coupled with the ability and intention to exercise dominion and control.' " Commonwealth v. Boria, 440 Mass. 416, 418, 798 N.E.2d 1017 (2003), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). "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 Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 426, 475 N.E.2d 81 (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 common sense." Commonwealth v. Arias, 29 Mass.App.Ct. at 618, 563 N.E.2d 1379, quoting Commonwealth v. Drew, 4 Mass. App.Ct. 30, 32, 340 N.E.2d 524 (1976). "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. Arias, supra, quoting Commonwealth v. Brzezinski, supra at 409, 410, ...