Commonwealth v. Delarosa

• Decision Date: 14 April 2000
• Docket Number: P-1627
• Citation: 740 N.E.2d 1014,50 Mass. App. Ct. 623
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH vs. NICHOLAS DELAROSA. 98-
• Court: Appeals Court of Massachusetts

740 N.E.2d 1014 (Mass.App.Ct. 2000)

COMMONWEALTH vs. NICHOLAS DELAROSA.

98-P-1627

In the Court of Appeals of Massachusetts

April 14, 2000

December 28, 2000

Controlled Substances. Firearms. Evidence, Hearsay. Practice, Criminal, Assistance of counsel, Judicial discretion, Instructions to jury. Constitutional Law, Assistance of counsel.

Indictments found and returned in the Superior Court Department on September 26, 1996.

The cases were tried before Constance M. Sweeney, J.

Leslie W. O'Brien for the defendant.

Sidney E. Reavey, Assistant District Attorney, for the Commonwealth.

Beck, Dreben, & Rapoza, JJ.

BECK, J.

The defendant was convicted of trafficking in over 200 grams of cocaine, two counts of assault and battery with a dangerous weapon (a motor vehicle), and possession of a firearm without a firearm identification card. (The jury found the codefendant, Luis Martinez, not guilty of trafficking and possession of a firearm.) On appeal, the defendant argues that (1) there was insufficient evidence he had constructive possession of 500 grams of cocaine and a gun found in a "well-hidden secret compartment"; (2) the admission of hearsay violated his constitutional rights; and (3) his counsel was constitutionally ineffective for not requesting a mistrial when a police officer testified that the defendant refused to cooperate after the officer read him his rights under Miranda v. Arizona, 384 U.S. 436 (1966). With the exception of the firearm charge, we affirm.

Facts.

The essential facts are not in dispute. On the afternoon of September 7, 1996, about a dozen Springfield police officers were participating in an investigation and surveillance of activities at an apartment building located at 135 Belmont Avenue, Springfield. At about 4:00 P.M., the defendant and Luis Martinez left the apartment building through a rear entrance and drove off in a gray Honda Accord. The car was registered to Jose Lopez. The defendant drove to the Diaz Supermarket. The two men entered the market for a "short time," got back in the car, and returned to the apartment building. Two hours later, the defendant and Martinez again left the apartment building through the rear door, and drove away in the Honda. This time they passed through the same supermarket parking lot and drove to Chicopee. In Chicopee, Martinez got out of the Honda and walked up to the front porch of a house at 13 Cochran Street. There was a man on the porch. Martinez gave the man a small item and the man gave Martinez some paper currency in exchange. Martinez and the defendant then returned to 135 Belmont Avenue. At about 8:30 P.M., Officer Joselito Lozada received a telephone call from "an individual" who apparently informed Lozada that the defendant would soon be making a delivery. Lozada notified the other officers and the team prepared to intercept the defendant. Lozada stationed himself opposite apartment 7A behind a fire door which had a small window in it. He saw the defendant and Martinez leave apartment 7A and go down a staircase to the basement. The defendant was carrying a brown paper bag. After radioing the officers in the parking lot behind the building, Lozada followed the defendant and Martinez through the basement and into the parking lot. There he saw the defendant get into the gray Honda. As the defendant began to drive away, unmarked cruisers pulled in front of and behind the Honda. Officers on foot also appeared and identified themselves as police officers. In response, the defendant put the Honda in reverse and sped backwards. In doing so, he struck the cruiser behind him, hitting one of the officers who was getting out of the cruiser and knocking the cruiser into another officer. The Honda stopped after striking a cement pillar. As a number of officers converged on the Honda, the defendant reached down in front of his seat. Both the defendant and Martinez refused to unlock their doors. At least in part in response to movement inside the Honda, one of the officers smashed the driver's side window and the officers forcibly removed the men from the Honda. The defendant responded by "kicking and grabbing onto the steering wheel" and attempted to grab the cement pillar as he was pulled out of the car. After handcuffing the defendant, the officers put him in the back seat of a marked cruiser, where he tried to kick the back windows out.

The police searched the Honda in the place they had seen the defendant reaching and found a "small brown McDonald's bag" containing what appeared to be cocaine. The cocaine was wrapped in a paper towel, and then in tinfoil, before being placed in the McDonald's bag. Sergeant Thomas Meleady removed a key ring from the Honda's ignition. He and several other officers went down to the basement and up the stairs to apartment 7A. One of the keys on the ring fit the door of apartment 7A. After determining that there was no one in apartment 7A, they secured the apartment and waited for Lozada to return with a warrant. Lozada and another officer secured apartment 9B.

After obtaining a warrant, the police searched both apartments 9B and 7A. The former appeared uninhabited and had apparently suffered water damage. That apartment yielded no contraband or other evidence. (They also searched 7B with the consent of the occupant and found nothing there either.)

A search of apartment 7A yielded different results. Officer Williams, who had attended "secret compartment school, . . . a [Drug Enforcement Administration] federally funded school, that teaches . . . about hidden compartments," was assigned to search the rear bedroom. After checking and removing the contents of the closet, Williams noticed "a fresh strip of molding running from one end of the closet door to the other end of the closet door, with fresh nailing in it." When Williams grabbed the molding to see if he could pull it off, "the entire closet floor came up." In the compartment Williams and one or two other officers found cocaine, McDonald's bags identical to the one containing cocaine that was found in the Honda, packaging material, cut powder containers, scales, other drug paraphernalia, and a handgun. There were also two Dominican Republic passports, neither of which was in the defendant's name. Other documents were found in apartment 7A as well, none of which connected the defendant to the apartment, including rent receipts to Wanda Lopez and Jose Lopez, utility bills for Wanda Nunez, and phone bills for Jose Lopez.

The cocaine found in the car weighed approximately seventy grams and had a purity of almost seventy-five percent. There were five other packages of cocaine in the hidden compartment with the following weights and purity: 99.33 grams, 189% purity [sic]; 242.8 grams, 40% purity; 7.13 grams (no evidence as to purity); 58.57 grams, 46.56% purity; and 96.93 grams, 78.22% purity.

The building manager testified that the defendant had been staying at 135 Belmont Avenue for a few months. During the summer he had been staying in apartment 9B, which was rented to Jose Lopez at the time, although she hadn't seen Lopez in a couple of months. The defendant had paid the rent for apartments 7A, 7B, and 9B a couple of times and had returned the keys to apartment 9B earlier on September 7. Lozada testified that at the police station the defendant said he had just arrived in Massachusetts the day before and was staying with a friend whose name he could not remember.

1. Constructive possession. At the conclusion of the Commonwealth's evidence, the defendant moved for a required finding of not guilty on the ground that the Commonwealth had not introduced sufficient evidence he possessed either the cocaine or the gun. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The Commonwealth's theory of the case was that the defendant had constructive possession of both.

In order to prove that the defendant had constructive possession of the cocaine and gun found in the hiding place in apartment 7A, the Commonwealth was required to show that the defendant had "knowledge [of the cocaine and the gun] coupled with the ability and intention to exercise dominion and control" of them. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Brzezinski, 405 Mass. at 409, quoting from Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). We examine the evidence supporting possession in the light most favorable to the Commonwealth. See Commonwealth v. Rosa, 17 Mass. App. Ct. at 499.

First, there was evidence connecting the defendant to apartment 7A. Most clearly, the defendant was seen coming out of that apartment carrying a small brown paper bag just before his arrest. He had been seen coming out of the same rear door of 135 Belmont Avenue two times earlier in the day. The police had also seen him at 135 Belmont Avenue four times in July of the same year. Moreover, he had paid the rent on apartment 7A, as well as other apartments in the building, on more than one occasion. The keys for apartment 7A were on the same key ring as the keys for the Honda that the defendant was driving at the time of his arrest.

The police retrieved a small brown paper bag from the place in the Honda where the defendant was seen to be reaching just before his arrest. The bag recovered from the location had a McDonald's logo and was identical to bags found in the secret hiding place in apartment 7A. "In some cases a defendant's connection to a stash of narcotic drugs [may be] established largely by the close similarity of the narcotic drugs in his actual possession . . . to the narcotic drugs in the stash." Commonwealth v. James, 30 Mass. App. Ct. 490, 495 (1991), citing as an example Commonwealth v. Brown, 12 Mass. App. Ct. 988 (1981), as well as...