Com. v. Pimentel

• Decision Date: 02 March 2009
• Docket Number: No. 07-P-431.,07-P-431.
• Citation: 73 Mass. App. Ct. 777,901 N.E.2d 718
• Parties: COMMONWEALTH v. Luis PIMENTEL (and fourteen companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

901 N.E.2d 718

73 Mass. App. Ct. 777

COMMONWEALTH v. Luis PIMENTEL (and fourteen companion cases¹).

No. 07-P-431.

Appeals Court of Massachusetts, Hampden County.

Argued October 8, 2008.

Decided March 2, 2009.

Peter M. Onek, Committee for Public Counsel Services, for Luis Pimentel.

Deborah Bates Riordan, Quincy (Theodore F. Riordan with her) for Erik L. Montalban.

William T. Harrington, Braintree, for Emilio Garcia.

Charles K. Stephenson, South Hadley (William W. Adams, Plainfield, with him) for Jorge Davila & another.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: BERRY, McHUGH, & GRAINGER, JJ.

GRAINGER, J.

Eight codefendants were tried for trafficking in cocaine, G.L. c. 94C, § 32E(b)(2), possession of heroin with intent to distribute, G.L. c. 94C, § 32(a), and violating the controlled substance law within one hundred feet of a public park or playground, G.L. c. 94C, § 32J. After a jury-waived trial in the Superior Court, the five defendants here on appeal were convicted of all charges. The remaining three defendants, Jonathan Maldonado, Mariano Gomez, and Nelson Gonzalez, were convicted of possession of heroin with intent to distribute and violating the controlled substance law within one hundred feet of a public park or playground. These three defendants, however, were acquitted of trafficking in cocaine. The Supreme Judicial Court affirmed the convictions of Maldonado, Gomez, and Gonzalez in Commonwealth v. Gonzalez, 452 Mass. 142, 892 N.E.2d 255 (2008).

The proceedings and facts are recited in detail by the Supreme Judicial Court in Gonzalez. We recount the evidence briefly, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Holyoke police officers obtained a warrant to search an apartment on the basis of their surveillance of the apartment building and on the basis of purchases from the apartment by a confidential informant. When the officers went to the apartment to execute the warrant, they knocked on the door and heard scurrying. Officers then broke down the door with a battering ram and discovered eight men (the five defendants, as well as Maldonado, Gomez, and Gonzalez) in the living room of the sparsely furnished apartment.

Upon a search of the apartment, officers discovered a large quantity of cocaine, heroin, and money hidden at several locations in the living room, as well as a box of plastic baggies hidden in the dropped ceiling in the hallway between the living room and the kitchen. The officers ordered all the defendants to the ground. When an officer pulled Pimentel from the ground, he discovered three "dime bags" of cocaine concealed underneath his body. Searches of the eight men revealed the following: Maldonado had $1,740 in cash, Gomez had $2,604; Gonzalez had $1,046 and a key to another apartment in the building Garcia had $116 and a key to the searched apartment; Pimentel had ten bags of cocaine and $55; Acevedo had $200; Davila had $187 in small denominations; and Montalban had $961 in cash consisting of mostly one, five, ten, and twenty dollar bills and a key to the hallway closet where more drugs were found.

On appeal, the defendants raised both discrete and common issues. They each challenged the sufficiency of the evidence supporting their convictions. Defendants Montalban and Acevedo argued that this court should reverse their cocaine trafficking convictions, in view of the acquittal of Maldonado, Gomez, and Gonzalez on those same charges. Defendant Montalban argued that his trial counsel was ineffective for failing to move to suppress certain evidence. Finally, defendant Pimentel argued that he did not waive his right to a jury trial effectively. We address each issue in turn, and discuss additional facts as they become relevant.

Discussion. Sufficiency of the evidence. Each of the defendants presented a motion for a required finding of not guilty at the close of the Commonwealth's case, arguing that the evidence established no more than mere presence at a scene where drugs were found. The judge denied their motions.² We review the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. at 677, 393 N.E.2d 370 (citation omitted). Because the judge did not reveal whether he relied on a theory of joint venture or a theory of 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).

1. Constructive possession. The defendants were charged with trafficking in cocaine having a net weight of twenty-eight grams or more but less than 100 grams, and with possession of heroin with intent to distribute. Possession of the quantity of cocaine and heroin found in the apartment, as well as the packaging of the drugs and other packaging materials found, would permit an inference of trafficking or of possession with intent to distribute. See Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758, 470 N.E.2d 811 (1984); 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 "crucial question," then, is "whether the Commonwealth presented sufficient evidence that each defendant possessed the cocaine [and heroin] found." Commonwealth v. Arias, supra at 617, 563 N.E.2d 1379. To prove constructive possession, the Commonwealth must show "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). However, as the Gonzalez court recognized, "mere presence in the apartment with knowledge that drugs are present is not enough to show constructive possession." Commonwealth v. Gonzalez, 452 Mass. at 147, 892 N.E.2d 255, citing Commonwealth v. Boria, 440 Mass. 416, 421, 798 N.E.2d 1017 (2003). Rather, presence must be "supplemented by other incriminating evidence, [which] `will serve to tip the scale in favor of sufficiency.'"

Commonwealth v. Brzezinski, supra at 409-410, 540 N.E.2d 1325, quoting from Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977).

Reviewing the same record that is now before us, the Supreme Judicial Court held in Gonzalez that "[t]he evidence warranted an inference that the defendants knew that the apartment in which they were present contained, and was used as a base for selling, heroin and cocaine." Commonwealth v. Gonzalez, supra at 146-147, 892 N.E.2d 255. Specifically, the court concluded that the judge could have reasonably inferred that the three packets found under Pimentel's body were in plain sight just before the officers arrived at the apartment. Similarly, from the scurrying the officers heard just before their entry and the large quantities of drugs found in the same room as the defendants, the judge could have inferred that those drugs were also plainly visible in the room before the officers entered. Finally, the judge could have inferred that the apartment was regularly used for illegal drug activity, due to the large amount of drugs found, the sparsely furnished nature of the apartment, and the barricades attached to the front door. Id. at 147, 892 N.E.2d 255.

However, the Gonzalez court was careful to point out that the three defendants whose convictions it was reviewing did not simply present "a case of mere presence." Id. at 148-149, 892 N.E.2d 255. The "unusually large amounts of cash" found in the possession of Maldonado, Gomez, and Gonzalez, as well as their "proximity to at least some of the hiding places of the drugs," allowed the reasonable inference that each had "the ability and intention to exercise dominion and control over the drugs found in the living room." Ibid. By contrast in this appeal, four of the five defendants had substantially less cash than the defendants in Gonzalez.³ We examine the evidence against each defendant to determine whether presence, "supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Brzezinski, supra at 410, 540 N.E.2d 1325. See Commonwealth v. Gonzalez, supra at 149 n. 6, 892 N.E.2d 255. In doing so, we keep in mind that "the fact that each of these defendants was part of the group of eight present in the single room with the drugs and cash is clearly relevant to an assessment of the over-all sufficiency of the evidence against each of them." Commonwealth v. Gonzalez, supra. Because the same evidence must also support the theory of joint venture, we turn next to the legal requirements of this theory.

2. Joint venture. The evidence under a joint venture theory requires the Commonwealth to show that the defendant (i) was present at the scene, (ii) had knowledge that another intended to commit the crime or had the intent to commit the crime,⁴ and (iii) by agreement, was willing and available to help the other if necessary. See Commonwealth v. Lee, 43 Mass. App.Ct. 164, 167, 681 N.E.2d 888 (1997), citing Commonwealth v. Mahoney, 406 Mass. 843, 846, 550 N.E.2d 1380 (1990). Here, as the Gonzalez court recognized, there was sufficient evidence to establish that all the defendants were present at the scene with knowledge that another intended to commit a crime. See Commonwealth v. Gonzalez, supra at 146-147, 149, 892 N.E.2d 255.

3. Application of legal theories to the facts. We consider whether there was sufficient evidence to support both theories in the case against each defendant in this appeal.

a. Montalban. Montalban does not appeal the denial of his motion for a directed verdict, see note 2, supra; instead he claims that his counsel was ineffective for failing to make a separate request for suppression of the evidence found...