Commonwealth v. Ortiz

• Decision Date: 02 May 2022
• Docket Number: 20-P-301
• Parties: COMMONWEALTH v. ROBERTO ORTIZ.
• Court: Appeals Court of Massachusetts

COMMONWEALTH v. ROBERTO ORTIZ.

No. 20-P-301

Appeals Court of Massachusetts

May 2, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was indicted on charges of trafficking in heroin, a class A substance; possession of a large capacity feeding device; and possession of ammunition without a firearm identification card. In connection with the latter two indictments, he was also charged with being an armed career criminal. Following the denial of his motion to dismiss, the defendant entered a conditional guilty plea, pursuant to Commonwealth v. Gomez, 480 Mass 240 (2018). As part of the plea deal, the Commonwealth agreed to a reduction in the trafficking charge and dismissed the armed career criminal enhancements. The defendant appeals contending that the judge erred in denying his motion to dismiss the indictments. We affirm.

1. Background.

We recite the evidence presented to the grand jury in the light most favorable to the Commonwealth. See Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020). At approximately 5 A.M. on September 5, 2018, officers of the Boston Police Department executed a search warrant at an apartment in South Boston. Just prior to the execution of the warrant, Zulemy Rivera left the target apartment. Officer Keith Kaplan stopped Rivera, who lived in the apartment. Kaplan gave Rivera Miranda warnings, after which she told him that there may be drugs in her room and a firearm in a safe in her nephew's room. This nephew was later identified as the defendant. Police officers located four men in the three bedroom apartment. The defendant was found in what Kaplan described as "his" (the defendant's) bedroom. In this bedroom, police officers found a cellular telephone on a television stand, nine Suboxone pills on top of the television stand, and a black digital scale on the bedside. In the closet of the bedroom, police officers found a safe and thirty-seven live rounds of .40 caliber ammunition, twenty-seven live rounds of .22 caliber ammunition, a high capacity feeding device, and a firearm cleaning device. A piece of mail addressed to the defendant at a different address was also found in the bedroom.

Police officers also found a live rifle round and a medium size plastic bag of heroin in the defendant's bedroom. The officers noticed that one of the bedroom windows was "ajar a little bit," and the air conditioner in the window next to it was "tilted a little." Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) assisting in the execution of the search warrant were doing a perimeter search when they observed a plastic bag on the ground "located right like at an angle of [the defendant's] window." The bag contained 198 grams of fentanyl heroin with a street value between six thousand and ten thousand dollars.

A search of the defendant's cell phone revealed photographs of the defendant holding what appeared to be a firearm. Portions of recordings of telephone calls made by the defendant while he was in jail were summarized and presented to the grand jury. Notably, the defendant denied throwing the drugs out of the window, but he also referenced "when [he] was selling."

2. Discussion.

"[G]enerally a court will not inquire into the competency or sufficiency of the evidence before the grand jury" (quotation and citation omitted). Commonwealth v. McCarthy, 385 Mass. 160, 161-162 (1982). Extraordinary circumstances may warrant a judicial inquiry into grand jury proceedings "when it is unclear that sufficient evidence was presented to the grand jury to support a finding of probable cause to believe that the defendant committed the offense charged in the indictment." Commonwealth v. Freeman, 407 Mass. 279, 282 (1990).

"[T]he grand jury must hear enough evidence to . . . support a finding of probable cause to arrest the accused for the offense charged." Commonwealth v. Carter, 474 Mass. 624, 630 (2016), quoting Commonwealth v. Rex, 469 Mass. 36, 40 (2014). Probable cause requires "considerably less than that which is required to warrant a finding of guilt." Carter, supra, quoting Commonwealth v. Levesque, 436 Mass. 443, 447 (2002). "It requires 'sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed,' not proof beyond a reasonable doubt." Commonwealth v. Buono, 484 Mass. 351, 362 (2020), quoting Stirlacci, 483 Mass. at 780. Our review is de novo. See Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015) . In order for an indictment to stand, the grand jury must be presented with evidence on each of the elements of the offense charged. See Commonwealth v. Hanright, 466 Mass. 303, 312 (2013).

a. Constructive possession.

The defendant contends that the Commonwealth presented insufficient evidence to the grand jury to prove that he constructively possessed the drugs found in his bedroom and on the ground beneath his bedroom window. We are not persuaded. Possession of a controlled substance may be established by circumstantial evidence and reasonable inferences drawn from it. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). See also Commonwealth v. Ralph R., 100 Mass.App.Ct. 150, 163-164 (2021).

The Commonwealth must present sufficient evidence to permit the grand jury to infer the defendant's knowledge of the contraband, and his ability and intention to exercise dominion and control over it. See Commonwealth v. Proia, 92 Mass.App.Ct. 824, 830 (2018). While mere presence alone is insufficient, see Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 323 (2010), contraband found in proximity to the defendant's personal effects, and the defendant's relationship to the location within an apartment, may provide a sufficient nexus. See Commonwealth v. Hamilton, 83 Mass.App.Ct. 406, 411-413 (2013). See also Proia, supra at 831. Here, the circumstantial evidence and the reasonable inferences drawn therefrom establish a sufficient nexus between the defendant and the bedroom. Specifically, the search occurred in the early morning, and the defendant was found in a bedroom with personal mail, a digital scale, and his cell phone. Additionally, Rivera told Kaplan that there may be a firearm in a safe in her nephew's bedroom. In this precise location, police officers located gun components. Contrast Montalvo, 76 Mass.App.Ct. at 323-327 (insufficient nexus between defendant and contraband found inside safe in room occupied by three men in apartment with little to no furniture or other indicia of occupancy).

Moreover, police officers observed that the window in the defendant's bedroom was slightly ajar, and the air conditioner was tilted. On the ground outside the window, ATF agents discovered a bag that contained fentanyl heroin with a significant street value.^[1] On this record, it is a reasonable inference that an illicit substance with such a significant monetary value was not merely left on the sidewalk in the early morning hours, but rather was tossed out of the open window during the search. See, e.g., Commonwealth v. Bonner, 489 Mass. 268, 288 (2022) (reasonable to infer defendant possessed gun "and then threw it in the snow while he was being chased by police"); Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012) (reasonable to infer gun in middle of walkway had only recently landed there and "would not have remained there for long without being reported or removed"). In addition, photographs taken from outside the apartment building show that there were no screens on the windows in the defendant's bedroom. Moreover, it is not uncommon for contraband to be thrown out a window or flushed down a toilet during a search or police encounter. See, e.g., Jefferson, supra (firearm apparently thrown from vehicle during police chase). b. Integrity of the grand jury.

The defendant next claims that through acts of commission and omission, the Commonwealth impaired the integrity of the grand jury, and therefore the indictments should be dismissed. The defendant bears the "heavy burden to show impairment of the grand jury." Commonwealth v. Stevenson, 474 Mass. 372, 376 (2016). The defendant must prove that: "(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986). We agree with the motion judge that the defendant failed to meet his burden here and address each claim in turn.

First the defendant claims that it was improper to show the grand jury photographs recovered from the defendant's cell phone depicting him with a firearm because this was improper propensity evidence. We agree with the Commonwealth that this evidence was properly admitted to demonstrate the defendant's knowledge of and access to firearms. See Commonwealth v. Watt, 484 Mass. 742, 749 (2020). Also, viewing the evidence in its totality, the photographs could not...