Commonwealth v. Charlton

• Decision Date: 16 February 2012
• Docket Number: No. 10–P–1042.,10–P–1042.
• Citation: 81 Mass.App.Ct. 294,962 N.E.2d 203
• Parties: COMMONWEALTH v. Craig A. CHARLTON.
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 294

962 N.E.2d 203

COMMONWEALTH

v.Craig A. CHARLTON.

No. 10–P–1042.

Appeals Court of Massachusetts, Plymouth.

Argued Dec. 6, 2011.Decided Feb. 16, 2012.

Sharon Dehmand for the defendant.

Peter Maguire, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, SMITH, & GRAINGER, JJ.

KATZMANN, J.

A Superior Court jury returned guilty verdicts on indictments charging possession with intent to distribute cocaine and possession of ammunition without a firearm identification (FID) card. After the jury were excused, the defendant pleaded guilty to so much of the ammunition indictment as alleged a prior violent offense. The defendant now appeals. The principal issue presented for review is whether the Commonwealth presented sufficient evidence to sustain a conviction based on constructive possession of the ammunition. The defendant also challenges the denial of his motion to suppress. We affirm the convictions.

Background. The jury could have found the following facts.¹ Shortly before midnight on April 17, 2007, Brockton police Officers Wilbur and Vargas responded to a report of a person shot at 46 Brett Street. At the side door to a two-family home, the officers were met by the defendant, who took them to the second-floor apartment. Wilbur described the apartment as being in “severe disarray.” In the kitchen, through which Wilbur passed to get to the bedroom, there were three pit bulls in separate cages with fecal matter. In addition, empty food boxes were scattered on the floor with other trash, and furniture was upended and torn, with pieces missing.

The defendant led them to a bedroom where a young woman, later identified as Julie Ford, was lying on a bed with a gunshot wound to her abdomen. Paramedics arrived almost simultaneously and immediately began to treat Ford. At least five other officers also responded to the scene. Vargas did a quick sweep of the rest of the apartment to make sure no one was there with a gun and returned to the area near the bedroom.

Wilbur testified that while he was watching the paramedics treat Ford, his attention was drawn to the defendant, who was also in the bedroom but appeared to be oddly focused on him, or something behind him, rather than the woman on the bed. Wilbur saw the defendant “attempt[ ] to move past [him] and put his hand towards the [dresser] drawer which was behind [Wilbur].” Wilbur grabbed the defendant, pushed him away from the drawer that was partly open, and looked inside. Expecting to find a gun, Wilbur was surprised to discover a plate holding both a razor blade and what he believed to be cocaine.

Wilbur escorted the defendant out of the bedroom and left him in the custody of other officers in the kitchen, while he returned to the bedroom to look around more carefully, particularly near the dresser area where he had just discovered the contraband. Wilbur saw boxes full of sandwich bags near the television set on the dresser and described them as “small ones that [he] generally see[s] people package drugs in.” To the right side of the television were wrapped piles of primarily one hundred dollar and fifty dollar bills, later determined to total $4,750. Also nearby, there was another bag of what appeared to be cocaine, together with an electronic scale and a police radio scanner that was plugged in and operational.

During the protective sweep of the apartment, either Vargas or an assisting officer found a box of .25 caliber ammunition in a bureau drawer in the living room.² Wilbur testified that the bureau was in the middle of the room, with the front ripped off of it. The box of ammunition was in the exposed drawer.³ The living room also contained a couch (that had been turned upside down), other pieces of broken furniture, and trash. Wilbur further testified that he found two bags of baking soda under the window in the living room.

The defendant was arrested in the apartment. While the defendant was still in the kitchen, Detective Delehoy sought and obtained his consent to search the apartment. Pursuant to that search, Delehoy found a box of “.357 Magnum hollow point ammunition” in a kitchen closet in a black bag.

At the police station, Officer Cole booked the defendant. Over objection, Cole testified that during the booking process, the defendant supplied his address as 46 Brett Street. That address was memorialized on the booking sheet that the defendant then signed and that was introduced in evidence. Wilbur testified that the gunshot victim told him that she was homeless, but during cross-examination he admitted that he did not interview her and that in another report prepared by Vargas, it stated that Ford had given her address as 46 Brett Street.

Annie Khan, a chemist with the Department of Public Health, explained the tests she performed on the substances that were seized during this incident and confirmed that the substances were cocaine.

Detective Thomas Keating testified as a drug expert. Based on all the items found in the apartment, he opined that the cocaine found therein was more consistent with distribution than personal use. He also testified that the fact that a razor blade was found on the plate with the contraband suggests it was being used to “cut” the purity of the cocaine with another substance like baking soda, or that the razor blade was used to wipe the product onto the scale to weigh it.

It was the defendant's theory of defense, presented through opening statement, cross-examination, and closing argument, that 46 Brett Street was a so-called “crack house” in which no one resided, that he was only present to help the woman who had been wounded, and that the evidence was insufficient to link him to the cocaine or the ammunition found in the apartment.

Discussion. 1. Suppression motion. Preliminarily, the defendant argues that the motion judge erred in denying his motion to suppress. He contends that the ammunition evidence retrieved from the kitchen closet should have been suppressed because the defendant's consent to search the apartment was involuntary. We disagree. After an evidentiary hearing, the motion judge found as follows:

“In fairly short order, the defendant was taken out of the bedroom and he was formally placed under arrest. He was advised of warnings pursuant to the Miranda decision. Detective Almeida provided the rights. He did that by reading the rights and ... I find they were a complete set of warnings pursuant to Miranda.... As well, he informed [the defendant] that if he chose to answer questions, he could stop at any time. Detective Almeida also asked the defendant if he understood those warnings and the defendant indicated that he did.

“Following advising [the defendant] of Miranda warnings, Detective Almeida asked for permission to search the apartment. That is he said, can we search and the defendant responded in the affirmative. That is, he said ‘Yeah, go ahead. You can get a warrant anyway, so you might as well search.’ As a result of that, the officers looked in other areas. In particular, within the kitchen or off the kitchen was a closet and opening that closet door Detective Almeida observed a black cloth bag. In opening that bag, he found a box of .357 caliber ammunition....

“[Regarding] whether or not the search of the kitchen closet was permissible and the seizure of ammunition from a black cloth bag[,] I find that it was permissible. It was based on the defendant's consent. I find the defendant gave his consent after being advised of Miranda warnings and by the manner in which he gave consent, indicated a knowledge that he had the right to refuse and the right to require the police to obtain a search warrant. Indeed he specifically stated that they could get a warrant anyway, so you might as well search. That evidences a knowledge of his rights and a voluntary waiver of his right to require the police to obtain a search warrant.

“I find that there is no evidence in this case that the police had threatened to obtain a warrant in order to induce the defendant's waiver or consent, rather I find that that consent was freely given and was voluntary. Accordingly, relying on the consent given, the police had a right to conduct a further search and that would include a right to search the closet and the cloth bag within the closet leading to the recovery of further ammunition, in this case .357 shells.”

The motion judge's ultimate findings are entitled to substantial deference, and we accept his subsidiary findings where, as here, they are not clearly erroneous. See Commonwealth v. Hilton, 450 Mass. 173, 177–178, 877 N.E.2d 545 (2007). We apply constitutional principles independently. See Commonwealth v. Bly, 448 Mass. 473, 491, 862 N.E.2d 341 (2007). We see no reason to disturb the motion judge's determinations, and conclude that a totality of the circumstances supports a finding that there was consent unfettered by coercion. See Commonwealth v. Rogers, 444 Mass. 234, 237, 827 N.E.2d 669 (2005). The motion judge did not err in essentially concluding that after being read Miranda rights, the defendant consented to the search based on a pragmatic assessment of the circumstances, and not because of coercion or duress.

2. Sufficiency of the evidence on ammunition charge. Contending that the judge erroneously denied his motion for a required finding of not guilty, the defendant argues that the Commonwealth failed to present sufficient evidence to prove that he had constructive possession of the ammunition seized in the apartment where he was found.

“Proof of constructive possession requires the Commonwealth to show [1] knowledge coupled with the [2] ability and [3] intention to exercise dominion and control. Proof of possession ... may be established by circumstantial evidence, and the inferences that can be drawn therefrom. Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience...