Com. v. Pratt

• Decision Date: 14 June 1990
• Citation: 407 Mass. 647,555 N.E.2d 559
• Parties: COMMONWEALTH v. James J. PRATT (and nine companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 559

555 N.E.2d 559

407 Mass. 647

COMMONWEALTH v. James J. PRATT (and nine companion cases ¹).

Supreme Judicial Court of Massachusetts,

Essex.

Submitted Feb. 5, 1990.

Decided June 14, 1990.

Brownlow M. Speer, Boston, Committee for Public Counsel Services, for James J. Pratt.

Lissa C. Pancare, Boston, for Penny S. Pratt.

Robert J. Bender, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

The defendants James J. Pratt (Pratt) and his wife, Penny S. Pratt (Mrs. Pratt), were convicted by a jury in the Superior Court in Essex County of several violations of the General Laws relating to the possession and distribution of certain controlled substances. ² Mrs. Pratt claims that the trial judge erred in denying her motion for a required finding of not guilty as to all of the charges against her, while Pratt claims that the trial judge erred in denying his motion for a required finding of not guilty with respect to the conspiracy charges. Pratt also claims that the trial judge improperly instructed the jury not to consider a portion of his closing argument, and that the motion judge erred in denying his motion to suppress evidence. For the reasons stated below, we affirm the convictions.

1. Facts. We summarize the evidence in a light most favorable to the Commonwealth, considering the evidence at the close of the Commonwealth's case. Commonwealth v. Mazza, 399 Mass. 395, 395, 504 N.E.2d 630 (1987).

In the early morning hours of October 19, 1987, State Trooper Gregory Dern and about fourteen fellow State troopers prepared to execute a warrant to search for drugs at a house located at 194 Southern Avenue in Essex, as well as at a small one-room cottage behind the house, a small shed, the land behind the property, and the persons of Pratt and Mrs. Pratt. One Lieutenant James Jajuga stopped Pratt on Route 128 and transported him to the house in Essex, which was owned by Pratt's parents. While one group of officers detained Pratt at the house, another group of officers proceeded to the small cottage which was located behind the house, and which served as the Pratts' residence.

State Trooper Dern knocked on the cottage door. A female voice responded from within the cottage, "Who is it?" Dern replied that it was the police, that he had a warrant, and asked the occupant to open the door. There was a pause. Again the voice in the cottage said, "Who is it?" Dern answered, "Police. I have a warrant. Will you open the door, please." Yet, again, the woman's voice asked, "Who is it?" At this point, Dern forced the door open and entered the cottage.

On entering the cottage, Trooper Dern and the police officers accompanying him observed Mrs. Pratt lying in bed. Dern showed Mrs. Pratt the search warrant, explained the officers' purpose for being in the cottage, and began searching the cottage. In plain view, sitting on a stove, was a gold- colored bowl containing some partially burnt glassine bags with the term "7-LIFE" stamped on them. ³ Also located on the stove was a spoon that was burned on the bottom, with a small swab of cotton on top, ⁴ and some additional glassine bags.

The search in the cottage proceeded. After five or ten minutes, Trooper Brian Lilly was about to search some shelves above the bed, where some folded towels, stockings, and toiletries lay. Just as Lilly was reaching for the shelf, Mrs. Pratt got out of bed, pointed to the shelf, and began to speak. ⁵ While officers held Mrs. Pratt, Lilly searched the shelf. He found a brown wrapper, within which were forty-four glassine bags, each bearing the inscription "7-LIFE." They were wrapped in packets of ten, except for one packet which contained four bags. Each bag contained heroin. Also on the shelf were forty-four round tablets wrapped in a piece of tinfoil, later identified as methaqualones. ⁶ In the same place, the police found a brown bottle which contained fifty-two methadone tablets, as well as seven hypodermic needles and seven syringes.

From behind the stove, the police seized a small bag of white powdered substance which proved to be dextrose, commonly used as a dilutant in heroin. They also found documents in a cannister under the bed, including identification cards with the Pratts' names on them, as well as the Pratts' marriage certificate. Near the bed was a telephone; next to the telephone the police found a piece of paper with some handwritten notations relating to drug transactions.

After the search of the cottage was completed, approximately fifteen police officers formed a line and started walking from the rear of the cottage across the property, turning over rocks and logs in search of drugs. One officer overturned a rock, lifted up a square matted patch of sod, and found a white plastic bag containing a glass jar with white pills in it. Nearby, two more pill-filled bottles were found. In total, 1,357 methaqualone pills were discovered. Under a rotted log, the police found a plastic container wrapped inside a black trash bag. In the container were four aluminum foil packages; inside each package were two brown packages, each of which contained approximately fifty glassine bags of heroin with the inscription "7-LIFE" stamped on them, wrapped in units of ten.

2. Sufficiency of the evidence. Arguing that there was insufficient evidence to prove that she was in possession of the contraband in the cottage or on the property, Mrs. Pratt claims that the trial judge erroneously denied her motion for a required finding of not guilty. We disagree.

"The essential question in evaluating the denial of a motion for a required finding of not guilty is whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury 'might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' " Commonwealth v. Pope, 406 Mass. 581, 584, 549 N.E.2d 1120 (1990), quoting Commonwealth v. Clary, 388 Mass. 583, 588, 447 N.E.2d 1217 (1983).

"Possession implies 'control and power,' ... exclusive or joint ..., or, in the case of 'constructive possession,' 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 Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984).

The evidence warranted an inference that Mrs. Pratt had knowledge of the drugs found. She had been sitting quietly on the bed as the police conducted their search, and only when a police officer reached a shelf which contained a large quantity of contraband, at least five minutes into the search, did Mrs. Pratt get up from the bed, point to the shelf, and begin to speak. The jury could infer that Mrs. Pratt's gesture stemmed from her knowledge of the contraband's presence. ⁷ In addition, there was evidence that drugs, drug paraphernalia, and a drug transaction list were in plain view in the small one-room cottage. See Commonwealth v. Brzezinski, supra 405 Mass. at 410, 540 N.E.2d 1325; Commonwealth v. Buckley, 354 Mass. 508, 513, 238 N.E.2d 335 (1968). The fact that the drugs found in the woods were packaged in an identical manner to those found in the cottage, and that they were of the same type and "brand," allowed an inference that Mrs. Pratt knew of their presence.

The jury could also infer that Mrs. Pratt had the ability and intention to exercise dominion and control over the contraband. There was evidence that Mrs. Pratt resided with Pratt in the cottage where a portion of the contraband was stored. "When contraband is found in a dwelling shared by a defendant and one or more other persons, a finder of fact may properly infer that the defendant is in possession of the contraband ... 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." Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 912, 499 N.E.2d 1233 (1986), and cases cited. Forty-four bags of heroin, forty-four methaqualude tablets, a bottle of methadone tablets, and seven syringes and needles were all found on an open shelf amidst towels, stockings, and toiletries. From her possession of the drugs in the cottage, from the similarity between the packaging and the type of drugs found in the cottage and those found in the woods, from her knowledge, as evidenced by the drug transaction sheet, of the scale of the drug operation, and from her access to and use of the surrounding property, the jury could infer that Mrs. Pratt was in possession of the drugs found on the property.

There was also sufficient evidence presented for the jury to find that Mrs. Pratt harbored the requisite intent to distribute. "Possession of a large quantity of an illicit narcotic raises an inference of intent to distribute." Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758, 470 N.E.2d 811 (1984), and cases cited. See also Commonwealth v. Gill, 2 Mass.App.Ct. 653, 657, 318 N.E.2d 628 (1974). In conjunction with the quantity of drugs found, the manner of packaging permitted an inference of an intent to distribute. Commonwealth v. Sendele, supra 18 Mass.App.Ct. at 758, 470 N.E.2d 811. There was evidence that the heroin was packaged in amounts of one dose per glassine bag, that each bag was marked with a brand name popular in the Cape Ann area, and that the bags were bundled into groups of ten and wrapped together in packages of fifty. A police officer testified that this method of packaging is a common practice for heroin distribution. The drug transaction list found in plain view in the cottage also could contribute to an inference of intent to distribute. See ...