Commonwealth v. Hamilton

• Decision Date: 13 March 2013
• Docket Number: No. 11–P–1568.,11–P–1568.
• Citation: 984 N.E.2d 861,83 Mass.App.Ct. 406
• Parties: COMMONWEALTH v. Deanne J. HAMILTON.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 406

984 N.E.2d 861

COMMONWEALTH

v.Deanne J. HAMILTON.

No. 11–P–1568.

Appeals Court of Massachusetts,

Plymouth.

Argued Dec. 5, 2012.

Decided March 13, 2013.

Jessica L. Healy, Assistant District Attorney, for the Commonwealth.

Kathleen M. O'Connell for the defendant.

Present: KAFKER, MILKEY, & AGNES, JJ.

KAFKER, J.

A judge of the Superior Court set aside jury verdicts on various drug offenses as well as a subsequent offender finding, concluding that there was insufficient evidence that the defendant constructively possessed the cocaine found in her apartment. On the Commonwealth's appeal, we conclude that the evidence was sufficient to establish constructive possession. None of the other issues raised by the defendant in her cross appeal warrants disturbing the jury verdicts and finding. We therefore reverse the judge's order and reinstate the jury verdicts, the subsequent offender finding, and the judgments.

1. Background. On February 1, 2008, the defendant was indicted for possession of cocaine with intent to distribute, second or subsequent offense, in violation of G.L. c. 94C, § 32A( c ) and ( d ), and for doing so in a school zone, in violation of G.L. c. 94C, § 32J. She made a motion to suppress evidence, not currently before this court, which was denied. After obtaining new counsel, she moved to dismiss the indictment based on purportedly prejudicial evidence presented to the grand jury, and moved to suppress evidence for violation of the search warrant particularity requirement. Both motions were denied. After the jury returned guilty verdicts,¹ the defendant renewed her motion for a required finding of not guilty pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), and the trial judge allowed the motion and ordered the entry of not guilty findings, relying chiefly on Commonwealth v. Boria, 440 Mass. 416, 798 N.E.2d 1017 (2003)( Boria ), and Commonwealth v. Brown, 34 Mass.App.Ct. 222, 609 N.E.2d 100 (1993)( Brown ). The Commonwealth appealed pursuant to Mass.R.Crim.P. 25(c)(1), and the defendant cross-appealed.

We summarize the evidence at trial in the light most favorable to the Commonwealth. See Commonwealth v. Escalera, 462 Mass. 636, 649, 970 N.E.2d 319 (2012), citing Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). On December 11, 2007, at approximately 10:00 P.M., officers from the Brockton police department and the State police executed a search warrant for an apartment on the third floor of 109 Green Street in Brockton. The officers knocked and announced themselves, and after five or ten seconds State Trooper Erik Telford forced the door open with a battering ram. Inside, the officers found the defendant on the living room couch and her codefendant, David Nelson,² also near the couch. The defendant was wearing only a T-shirt and underwear at the time; Nelson did not have a shirt on. The defendant requested clothing, and an officer brought her clothing from the bedroom. Both defendants were secured outside the apartment during the search.

The apartment was very small, consisting of a living room with a closet and kitchenette, a small hallway, one small bedroom, and a bathroom. The living room was approximately eight feet by twelve feet. In the living room were a couch, a coffee table about three feet long, a chair, an end table, and a television. The bedroom was smaller than the living room and contained a bed, a dresser, and plastic shelving. The apartment was cluttered, with trash and clothing, and in disarray.

Brockton police Detective Robert Diliddo found and seized two cellular telephones (phones) and a digital scale on the coffee table.³ The scale is small and resembles a compact disk (CD) when closed, as it was when Diliddo found it. One of the phones contained a photograph of Nelson. Subsequently, Brockton police Lieutenant (then Sergeant) Kevin O'Connell discoveredon the coffee table seven individually wrapped pieces of what he believed to be “crack” cocaine. This substancelater tested positive for cocaine and weighed approximately 3.3 grams. There was testimony that the smaller pieces of crack cocaine would sell for twenty dollars, and the largest for as much as fifty or eighty dollars.

Officers also seized $110 in cash, in smaller denomination bills, from the bedroom; a box of Glad plastic bags from the end table in the living room; and a BB gun from the living room closet. Telford observed women's clothing, women's perfume, and women's lotions in the bedroom, but did not observe any men's clothing there. At booking, both the defendant and Nelson gave 109 Green Street, apartment 3, as their address.⁴

Brockton police Detective Thomas Keating testified as an expert for the Commonwealth, over the defendant's objection. He testified that crack cocaine is frequently packaged in sandwich bags. Keating also testified that money found along with crack cocaine is indicative of drug distribution and may be the proceeds from drug sales. He found the discovery of a scale significant, stating, “I never saw an addict buy crack cocaine and weigh it unless they're buying it to sell it.”

Neither codefendant testified. The defendant's counsel argued chiefly that the drugs were not hers; Nelson's defense was personal use.

2. Commonwealth's appeal. a. Standard of review. The defendant asserts that we should defer to the trial judge's ruling and review the trial judge's allowance of the rule 25(b)(2) motion for abuse of discretion, citing Commonwealth v. Cobb, 399 Mass. 191, 192, 503 N.E.2d 945 (1987), and Commonwealth v. Woodward, 427 Mass. 659, 668, 694 N.E.2d 1277 (1998). She misunderstands the context of Cobb and Woodward.

A rule 25(b)(2) motion may seek any or all of three forms of relief: a new trial, a finding of not guilty, or a reduction of the verdict to a lesser included offense. See Commonwealth v. Keough, 385 Mass. 314, 317–318, 431 N.E.2d 915 (1982).⁵ The standard for a new trial is akin to that under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). “A judge has similar broad discretion to grant a new trial in the interests of justice under both rules.” Commonwealth v. Pring–Wilson, 448 Mass. 718, 732 n. 14, 863 N.E.2d 936 (2007). Likewise, a judge asked to reduce a verdict has the discretion to consider the weight of the evidence to reach the result the judge believes most consonant with justice. See Commonwealth v. Almeida, 452 Mass. 601, 613–614, 897 N.E.2d 14 (2008), and cases cited. Both of these forms of relief are discretionary, and we would review for abuse of discretion, with particular deference to the trial judge's familiarity with the proceedings and credibility judgments. See Commonwealth v. Preston, 393 Mass. 318, 324, 471 N.E.2d 340 (1984); Commonwealth v. Cornish, 28 Mass.App.Ct. 173, 177, 547 N.E.2d 948 (1989); Commonwealth v. Peppicelli, 70 Mass.App.Ct. 87, 93, 872 N.E.2d 1142 (2007).

However, a motion seeking a finding of not guilty due to insufficient evidence stands on different footing. The sufficiency of the evidence is a question of law because the judge must take the evidencein the light most favorable to the Commonwealth rather than weighing it independently. See Commonwealth v. Torres, 24 Mass.App.Ct. 317, 321–324, 508 N.E.2d 877 (1987); Commonwealth v. Walker, 68 Mass.App.Ct. 194, 197–198, 861 N.E.2d 457 (2007). See also Smith, Criminal Practice & Procedure § 36.21 (3d ed. 2007). Therefore, “the judge does not properly exercise discretion concerning the weight or integrity of the evidence, but instead must assess the legal sufficiency of the evidence by the standard set out in Commonwealth v. Latimore, 378 Mass. [at] 677 .” Commonwealth v. Doucette, 408 Mass. 454, 456, 559 N.E.2d 1225 (1990). We thus determine the legal question of sufficiency without deference to the trial judge's ruling. See ibid.

b. Sufficiency of the evidence. As the cocaine was not found on the defendant's person, she was tried on a theory of constructive possession.⁶ The Commonwealth therefore was required to prove the defendant's knowledge of the cocaine, and her ability and intent to exercise dominion and control over it. See Boria, 440 Mass. at 418, 798 N.E.2d 1017;Commonwealth v. Gonzalez, 452 Mass. 142, 146, 892 N.E.2d 255 (2008). “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. 401, 409, 540 N.E.2d 1325 (1989), quoting from Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 426, 475 N.E.2d 81 (1985). However, mere presence in proximity to contraband, or even “[l]iving in a place where drugs are in plain view and being sold,” is insufficient to establish constructive possession. Boria, 440 Mass. at 418, 798 N.E.2d 1017. See Commonwealth v. Charlton, 81 Mass.App.Ct. 294, 300, 962 N.E.2d 203 (2012) (“That a defendant provides as [her] address the place where contraband is found does not alone provide an ability and intent to control the contraband”). Rather, “[o]ther incriminating evidence” is necessary to “tip the scale in favor of sufficiency.” Commonwealth v. Brzezinski, supra at 410, 540 N.E.2d 1325, quoting from Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977). A “particular link” of the defendant to the contraband, or at least to the area where the contraband is found, must be established. Boria, 440 Mass. at 420, 798 N.E.2d 1017. See Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 913, 499 N.E.2d 1233 (1986) (drugs and paraphernalia found in bedroom with defendant's belongings); Commonwealth v. Clarke, 44 Mass.App.Ct. 502, 505–506, 692 N.E.2d 85 (1998) (defendant's clothes and documents found in bedroom with contraband).

In this case, the jury could reasonably infer the defendant's awareness of the cocaine and ability and intent to exercise dominion and control over it. In the light most favorable to the Commonwealth, the evidence supported an inference of the defendant's...