Commonwealth v. Humphries

• Decision Date: 13 May 2010
• Docket Number: No. 08-P-1963.,08-P-1963.
• Citation: 926 N.E.2d 215,76 Mass.App.Ct. 702
• Parties: COMMONWEALTHv.Jerold HUMPHRIES.
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 702

926 N.E.2d 215

COMMONWEALTHv.Jerold HUMPHRIES.

No. 08-P-1963.

Appeals Court of Massachusetts,

Suffolk.

Argued Nov. 6, 2009.

Decided May 13, 2010.

Louis Christopher Cashiola for the defendant.

Elizabeth Clerkin (Kathleen Celio, Assistant District Attorney, with her) for the Commonwealth.

Present: CYPHER, SIKORA, & FECTEAU, JJ.

CYPHER, J.

The defendant, Jerold Humphries, seeks to overturn two drug offense convictions,¹ claiming that his motion for a required finding of not guilty after the Commonwealth's case in chief should have been allowed. We conclude that the evidence of constructive possession was insufficient to support his conviction and we reverse.²

Facts.³ A Boston police detective testified that the police executed a search warrant for an apartment at 15 Wentworth Street, in the Dorchester section of Boston, on November 15, 2003. They seized “crack” cocaine and marijuana in a back bedroom where two men were hiding in a closet, and another was “at the end of the bed.” None of the three had any personal effects in the room. The defendant was not in the apartment.

In another bedroom, furnished only with a futon bed, police seized sixteen small plastic bags of marijuana in one large bag, eight larger individually wrapped bags of marijuana in another large bag, “Glad plastic bags” and small bags printed with an “apple.” No one was present in the room. The police also found a Massachusetts identification card with the defendant's name and picture, and an envelope addressed to him at a different address which had been postmarked on October 27, 2003. The defendant's address on the identification card was 49 Bullard Street, the same address as appeared on the envelope. No other personal effects of the defendant, or any personal effects of the three individuals observed in the rear bedroom were found in the vacant bedroom. The defendant was charged only for the marijuana found in the room where his identification was found.

Discussion. 1. The motion for a required finding of not guilty.⁴ The defendant argues that his motion for a required finding of not guilty should have been allowed because the evidence failed to link him with the marijuana found in the vacant bedroom. He argues that the evidence, at most, showed his presence in the apartment sometime prior to the date of the search, but because he previously had moved out of the apartment, was not the target of surveillance or the subject of the search warrant, and was not present at the time of the search, the evidence was insufficient to show that he exercised any control of the apartment or its contents. He also argues that the discovery of his identification card and a piece of mail in the vacant bedroom, with no indication where they were found or if or how they were proximately related to the marijuana was insufficient to establish constructive possession of the marijuana.

We review the question of sufficiency of the evidence under the familiar Latimore standard Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979), viewing the evidence in the light most favorable to the Commonwealth. To convict a defendant on a theory of constructive possession, the Commonwealth must prove beyond a reasonable doubt that the defendant had knowledge of the contraband, coupled with the ability and intention to exercise dominion and control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). In general, intent to exercise control “is not easily susceptible of proof and is a close question.” Commonwealth v. Sadberry, 44 Mass.App.Ct. 934, 936, 692 N.E.2d 103 (1998).

Our typical constructive possession cases tend to concern situations where the defendant is present and we turn to other incriminating evidence to determine whether there is sufficient evidence of constructive possession. See, e.g. Commonwealth v. Figueroa, 74 Mass.App.Ct. 784, 786, 911 N.E.2d 206 (2009). Here, the defendant was not present and the only indicia on the Commonwealth's case that he may have been present was an identification card in his name and an envelope addressed to him at a different address.

The identification card and the envelope did not, in and of themselves, show beyond a reasonable doubt that the defendant had knowledge of the presence of the marijuana and did not prove, even considering any reasonable inferences, that the defendant had the intent and ability to exercise dominion and control over the marijuana. Compare Commonwealth v. Frongillo (No. 1), 66 Mass.App.Ct. 677, 682-683, 850 N.E.2d 1060 (2006) (evidence was insufficient to show that defendant intended to exercise dominion and control over guns and ammunition found in bedroom closet of fiancée's apartment where defendant was in vicinity of apartment but not present at time of search and no evidence connected defendant to guns and ammunition other than unidentified men's clothing), with Commonwealth v. Schmieder, 58 Mass.App.Ct. 300, 303, 789 N.E.2d 596 (2003) (documentary evidence that defendant rented dwelling is relevant to constructive possession). There was no evidence that the defendant “rented, occupied, spent a great deal of time at or exercised control over the apartment or its contents.” Commonwealth v. Caterino, 31 Mass.App.Ct. 685, 689, 583 N.E.2d 259 (1991).

No cases have been brought to our attention, and we are not aware of any, where we have concluded that there was sufficient evidence of constructive possession despite the defendant's absence. See Commonwealth v. Duffy, 4 Mass.App.Ct. 655, 660, 357 N.E.2d 330 (1976); Commonwealth v. Booker, 31 Mass.App.Ct. 435, 438, 578 N.E.2d 815 (1991); Commonwealth v. Delarosa, 50 Mass.App.Ct. 623, 628, 740 N.E.2d 1014 (2000) (all cases in which court specifically notes defendant's absence at time police discovered contraband and concludes that there was insufficient evidence of constructive possession). Contrast Commonwealth v. DePina, 75 Mass.App.Ct. 842, 854, 917 N.E.2d 781 (2009) (sufficient evidence of constructive possession where defendant walked toward building in which contraband found, with set of keys that unlocked building's main door, apartment front door, and door to bedroom where drugs were found). Accordingly, we conclude that the motion for required finding should have been allowed.

Judgments reversed.

Verdicts set aside.

Judgments shall enter for the defendant.

SIKORA, J. dissenting.

Respectfully I dissent from the reasoning and result advanced by my colleagues. For the following reasons, I conclude (1) that the evidence supported the jury's verdict of guilt of constructive possession of marijuana with intent to distribute; and (2) that the admission of the drug analysis certification of marijuana constituted harmless error beyond a reasonable doubt.

1. Proof of constructive possession. a Standards. In review of the denial of a motion for a directed finding of not guilty, the appellate court examines the entire evidence in the light most favorable to the Commonwealth and without regard to contrary evidence presented by the defendant in order to determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Several corollaries expand upon that standard. “Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989), quoting from Commonwealth v. Nadworny, 396 Mass. 342, 354, 486 N.E.2d 675 (1985), cert. denied, 477 U.S. 904, 106 S.Ct. 3274, 91 L.Ed.2d 564 (1986). Commonwealth v. Rojas, 388 Mass. 626, 629, 447 N.E.2d 4 (1983). The resulting inferences “need only be reasonable and possible; [they] need not be necessary or inescapable.” Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). In the aggregate, the evidence need not compel a finding of guilt; it need only permit that finding beyond a reasonable doubt. Commonwealth v. Platt, 440 Mass. 396, 401, 798 N.E.2d 1005 (2003). The prosecution does not need to “exclude every reasonable hypothesis of innocence, provided [that] the record as a whole supports a conclusion of guilt beyond a reasonable doubt.” Commonwealth v. Merola, supra at 533, 542 N.E.2d 249, quoting from United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st Cir.) cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985). See Commonwealth v. Stoico, 45 Mass.App.Ct. 559, 563, 699 N.E.2d 1249 (1998). Determination of credibility belongs to the jury, especially if (as here) the defendant testified. Commonwealth v. Festa, 369 Mass. 419, 424-425, 341 N.E.2d 276 (1976).

To prove the specific offense of constructive possession of contraband, the Commonwealth must establish (1) the defendant's knowledge of the location of the material, and (2) his “ability and intention to exercise dominion and control” over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). As the majority point out, the nature of constructive possession typically requires proof by circumstantial evidence. 76 Mass.App.Ct. at 704, 926 N.E.2d at 216-17. Mere presence in proximity to the contraband is not sufficient. Presence plus other incriminating circumstances can satisfy the standard of proof. Commonwealth v. Brzezinski, supra at 409-410, 540 N.E.2d 1325, citing Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977). Commonwealth v. Brown, 34 Mass.App.Ct. 222, 226, 609 N.E.2d 100 (1993). “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 (not necessarily exclusive possession) from evidence that the contraband was found in proximity to personal effects of the defendant in areas of the dwelling, ...