Commonwealth v. Cooper

• Decision Date: 04 May 2021
• Docket Number: 19-P-1637
• Citation: 99 Mass.App.Ct. 1123,168 N.E.3d 375 (Table)
• Parties: COMMONWEALTH v. Joseph COOPER.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 1123

168 N.E.3d 375 (Table)

COMMONWEALTH

v.Joseph COOPER.

19-P-1637

Appeals Court of Massachusetts.

Entered: May 4, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Joseph Cooper, was convicted by a Superior Court jury of unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; carrying a loaded firearm, G. L. c. 269, § 10 (n ) ; possession of a firearm while in commission of a felony, G. L. c. 265, § 18B ; and two counts of possession with intent to distribute (cocaine and oxycodone), G. L. c. 94C, § 32A (a ), (c ).² In this direct appeal the defendant asserts the following errors: (1) the trial judge's denial of his motion for a required finding of not guilty on all counts; (2) the admission of impermissible testimony regarding guilt which the trial judge, given the defendant's pro se status, should have stricken, and 3) improper statements by the prosecutor in closing argument. We affirm the convictions.

Discussion. 1. Sufficiency. "In reviewing a claim of insufficient evidence, we ask ‘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. Brown, 479 Mass. 600, 608 (2018), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The inferences that support a conviction need only be reasonable and possible; [they] need not be necessary or inescapable" (quotations and citations omitted). Commonwealth v. Santos, 95 Mass. App. Ct. 791, 798 (2019).

a. Intent to distribute. The defendant contends that there was insufficient evidence of intent to distribute, as opposed to possession for personal use.³ "A ‘defendant's intent to distribute a controlled substance is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances developed at the trial.’ " Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Rivera, 425 Mass. 633, 648 (1997).

Viewed in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 676-677, the facts are as follows. The defendant was stopped on January 6, 2017, for driving without a license. After he was placed under arrest, an officer searched the defendant and found a clear plastic bag containing three smaller bags in the defendant's front right pants pocket. One of the smaller bags contained nine smaller bags with a hard, white substance; another bag contained a hard, rock-like substance with a powdered white substance; and the third bag contained five pills. Later testing determined that the substances were cocaine in its base form and cocaine in the solid form. The pills were oxycodone acetaminophen. The Commonwealth's expert, Sergeant Detective John Dineen, testified that it is unusual for an individual user to purchase nine individual bags of crack cocaine and likened it to buying an individual slice of pizza for each member of a family when you can get a whole pizza for less. The defendant carried no implements for personal use.

Before the stop, the officers saw what they believed to be hand-to-hand drug transactions on two occasions during the two hours the officers were following the defendant. The first apparent drug sale occurred around 1:30 P.M. and lasted about two to three minutes. A woman approached the vehicle and reached her hand in briefly. The second apparent sale occurred between 1:30 P.M. and 2 P.M. A man also reached into the car for a few seconds.⁴

Before he was arrested, the defendant stopped the gray BMW he was driving near a dark-colored Mercedes. There was a note on the front windshield of the Mercedes with his name and a phone number. The police had previously seen the license plate on the gray BMW on a dark-colored Mercedes. In November 2016 the Drug Control Unit (DCU) received information that the dark-colored Mercedes was used to conduct drug transactions in the Dorchester area. At trial, Sergeant Detective Dineen testified that individuals often use cars to conduct drug transactions and attempt to avoid detection by switching license plates between cars.

Based on these facts a rational jury could have found that the defendant sold controlled substances from the gray BMW and the drugs found in his pocket were intended for distribution. See Commonwealth v. Clark, 446 Mass. 620, 624 (2006). The defendant was carrying two different types of cocaine, packaged in street sale amounts, as well as a third drug similarly packaged. The variety and packaging of the drugs permits an inference that he was selling the drugs, and not simply a user. See Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) ; Commonwealth v. Myers, 82 Mass. App. Ct. 172, 178 (2012). In addition, the jury heard expert testimony to the effect that a user would not buy that much cocaine in single small packets, and that switching the license plates was consistent with the use of two vehicles to obscure the sale of drugs from the cars. See Commonwealth v. Little, 453 Mass. 766, 793 (2009) ("Narcotics investigators may testify as experts to describe how drug transactions occur on the street"). The evidence was sufficient.

b. Possession of a loaded firearm. The defendant contends that the Commonwealth failed to establish he had possession of the firearm found in the gray BMW. At trial, the Commonwealth proceeded on a theory of constructive possession, "which requires the Commonwealth [ ] establish the defendant's ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Summers, 93 Mass. App. Ct. 260, 262 (2018), quoting Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). Although "[m]erely being present in a vehicle in which a firearm is located is not sufficient ... the presence of the defendant inside the same vehicle where a firearm is located, ‘supplemented by other incriminating evidence, ... may suffice’ " (citation omitted). Commonwealth v. Santos, 95 Mass. App. Ct. 791, 800 (2019), quoting Commonwealth v. Sinforoso, 434 Mass. 320, 327 (2001).

Viewed in the light most favorable to the Commonwealth, the jury could infer that the defendant knew the firearm was in the car and that he intended to exercise dominion and control over it. See Santos, 95 Mass. App. Ct. at 800. The defendant had exclusive use of the car for a substantial time period. The officer found the revolver inside a large, loose, brightly colored striped sock in the driver's side door, inches from where the defendant was sitting in the driver's seat, and plainly (if not startlingly) visible. Although the car was registered to the defendant's mother,⁵ the jury could have inferred from the defendant's exclusive and continuous use of the car during the relevant time period, and his proximity to the firearm, that he knew the gun was there. For the reasons stated above, the jury also could have found that the defendant used two cars to conduct drug sales. From that evidence the jury could permissibly infer that the cars were the defendant's place of business, that the defendant had knowledge of what was in the car, and that he put the gun in the passenger door within reach. See Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444-445 (2013) (sufficient evidence of constructive possession of contraband in car where defendant had exclusive and continuous use of car for two days, was observed engaging in suspected drug dealing, and personal papers were found in car). See also Summers, 93 Mass. App. Ct. at 263 (defendant was sole occupant of back seat and was sitting adjacent to backpack containing handgun).

The defendant further claims that the evidence was insufficient to support an inference that he knew the firearm was loaded. See Brown, 479 Mass. at 608. The firearm was found inside a sock in the pocket of the driver's side door. As the firearm was a revolver, the bullets in the cylinder were clearly visible. See Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 90 (2019). This case is therefore distinguishable from Commonwealth v. Grayson, 96 Mass. App. Ct. 748, 750-751 (2019), where the circumstances surrounding the defendant's acquisition of the firearm were less clear, the sock was knotted, and the firearm held a magazine that obscured any view of the ammunition. Here, the gun was found in a car that the defendant used, he had consistent and uninterrupted use of the car, the jury could have inferred that the defendant put the gun in the door,⁶ the sock was loose and open, and the defendant could tell the gun was loaded "simply by looking at it." Commonwealth v. Ashford, 486 Mass. 450, 455 (2020). The evidence was sufficient.

c. Possession of a firearm while in commission of a felony. As a rational trier of fact could have found beyond a reasonable doubt that the defendant possessed a controlled substance with intent to distribute and that the defendant unlawfully possessed a firearm, the conviction for possession of a firearm while in commission of a felony is affirmed.

d. Testimony on the ultimate issue. The defendant maintains that the judge abused his discretion by permitting inadmissible testimony from Detective Medina that he believed he saw the defendant engaged in drug transactions. The defendant argues that, given his pro se status, the judge should have intervened.

In fact, the judge did intervene -- consistently. The judge previously ruled that the police witnesses could testify to what they saw, but not that they believed they saw a drug transaction. This ruling was consistent with the general rule that "[t]estimony from a police officer ... to the effect that a defendant was engaged in drug dealing or selling crack cocaine constitutes an opinion of guilt." Commonwealth v. Woods, 36 Mass. App. Ct. 950, 952 (1994), S.C., 419 Mass. 366 (1995). See also Commonwealth v. Cavanaugh, 63 Mass. App. Ct. 111, 116 (2005). "Such testimony is unnecessary, and it tends to usurp...