Commw. v. Velasquez, 102799

• Decision Date: 27 October 1999
• Docket Number: No. 98-P-334,98-P-334
• Parties: (Mass.App.Ct. 1999) COMMONWEALTH v. JESUS VELASQUEZ, JR
• Court: Appeals Court of Massachusetts

718 N.E.2d 398 (Mass.App.Ct. 1999)

COMMONWEALTH v. JESUS VELASQUEZ, JR.

No. 98-P-334

MASSACHUSETTS COURT OF APPEALS

Argued September 14, 1999.

October 27, 1999

Essex County

Controlled Substances. Practice, Criminal, Required finding, Prior conviction. Joint Enterprise.

Evidence, Joint enterprise, Prior conviction, Prior misconduct.

Complaint received and sworn to in the Haverhill Division of the District Court Department on

November 21, 1996.

The case was heard by Allen G. Swan, J.

Alisa M. Rosenthal for the defendant.

Adam J. Bookbinder, Assistant District Attorney, for the Commonwealth.

Kass, Smith, & Spina, JJ.

KASS, J.

At his bench trial in District Court on a charge of possession of cocaine with intent to distribute

(G. L. c. 94C, § 32A), Velasquez's defense was that his was an innocent and unaware

presence in an apartment from which that drug was being sold. At the close of the

Commonwealth's evidence, he moved for a required finding of not guilty, Mass.R.Crim.P. 25(a),

378 Mass. 896 (1979), a motion that was denied. The trial judge found Velasquez guilty. On

appeal, the defendant's principal claim of error is the denial of his rule 25(a) motion. Subsidiary

to that question is whether the judge applied the correct criteria in acting on the motion. A third,

and possibly more challenging, point concerns the manner in which the defendant was

cross-examined about his prior convictions. We affirm.

Facts. On the basis of the evidence taken in a light most favorable to the Commonwealth,

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the judge could have found facts as

follows. Approximately two days before he obtained a warrant to search the basement and the

third floor, left side, apartment at 40 Central Street in Haverhill, Gary Melanson, a police

detective in that city, heard from a confidential informer about cocaine buys made in the

basement and the third floor, left, apartment at 40 Central Street in Haverhill. All tenants in the

six apartments in the building had access to the basement. After that tip, Detective Melanson

made a controlled buy of cocaine through the informer. Melanson also placed the building under

surveillance. He noticed a pattern of visits to 40 Central Street that he regarded as typical of drug

trade: a heavy volume of visits of very short duration; in and out. He also noticed that when

visitors entered the building, someone would appear at a window of the third floor, left,

apartment, look out on the street until the visitor left the building, and then recede.

On the strength of his informer's tip, the controlled buy, and his observations, Melanson

obtained a search warrant on November 19, 1996. Two four-man teams executed the search

warrant on November 20, 1996. Melanson and three State troopers appeared at the front door of

the third floor, left, apartment and four Haverhill police officers, led by Sergeant Leeman,

entered through the rear door. Both teams made their entries with the help of battering rams. It

took Sergeant Leeman's squad five tries to break the rear door down.

Once inside the apartment, Leeman saw the defendant in the bathroom and heard the toilet

flushing. As Leeman advanced toward the bathroom, the defendant blocked his way. By the time

Leeman made his way into the bathroom, he saw "a brown leafy substance" swirling down the

toilet. The sink faucet was wide open and he saw "white items" in the drain that he took to be

crack cocaine.¹ Leeman was unable to catch either substance by hand and bashed the drain pipe

and the toilet bowl attempting to retrieve the drugs, but was not successful.² The search of the

apartment turned up only a telephone bill and an electricity bill addressed to the defendant, two

rent receipts in his name, $320 in cash (of which $50 was hidden in the kitchen), and cut corners

of plastic baggies, such as are associated with trading in crack cocaine.

Those officers who searched the basement found a clear plastic sandwich baggie with sixteen

rocks of crack cocaine as well as a loaded nine millimeter handgun. That discovery led to the

arrest of the four occupants of the apartment, including the defendant. Melanson described the

defendant on that occasion as saying he, i.e., the defendant, would be going to jail for two years

and when he got out he was going to "fuck up the police."

1. Denial of the motion for a required finding of not guilty. Velasquez argues that the evidence

established nothing more than his presence in the third floor, left, apartment and failed to make

any connection between him and the drugs that the police found in the basement. Presence alone

where unlawful drugs are found, it is well settled, is not enough from which to infer either

possession of the drugs or participation in the unlawful venture to distribute them.

Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990), S.C., 410 Mass. 1005 (1991).

Commonwealth v. Dennis, 33 Mass. App. Ct. 666, 671 (1992), S.C., 416 Mass. 1001 (1993).

There needs to be a "plus" factor, i.e., incriminating evidence of something other than presence.

Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989). Being engaged in counting the money

from drug sales is a dramatic illustration. Commonwealth v. Frias, 47 Mass. App. Ct. 293, 297-

298 (1999).

No cocaine was found on the defendant's person. The government may, however, under the label

"constructive possession," prove that the defendant had knowledge of the unlawful drugs found

in the basement, coupled with the ability and intention to exercise dominion over them.

Commonwealth v. Daley, 423 Mass. 747, 752 (1996). Commonwealth v. Deagle, 10 Mass. App.

Ct. 563, 567 (1980). That proof may be accomplished by circumstantial evidence and the

reasonable -- not inescapable -- inferences to be drawn from it. Commonwealth v. Bush, 427

Mass. 26, 30 (1998). Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).

Here, the utility and rent receipts in the name of Velasquez proved his more than casual

connection with the apartment. Commonwealth v. James, 30 Mass. App. Ct. 490, 494 (1991). As

to the apartment, the traffic pattern that Detective Melanson had observed and the barricade at

the rear door tended to establish that it was a drug trading post. See Commonwealth v. Arias, 29

Mass. App. Ct. at 619; Commonwealth v. Monterosso, 33 Mass. App. Ct. 765, 771 (1992).

Velasquez's blocking Sergeant Leeman from the bathroom until drugs were beyond retrieval

provides a basis for inferring that Velasquez was more than an unlucky occupant of the

apartment but was himself involved in the drug selling operation. See Commonwealth v. James,

supra at 497; Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995). Nor at the time of

the bust did the defendant disassociate himself from the drugs in the basement; rather he said he

was going to jail for two years, a remark that can be taken as an expression of consciousness of

guilt. The defendant's access to the basement area speaks to his ability to exercise dominion over

the cocaine hidden there. See Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 237 (1997).

That others in the building also had access to the basement and might have hidden drugs in the

basement does not require a finding of not guilty in favor of Velasquez. Commonwealth v.

Montanez, 410 Mass. 290, 306 (1991). Compare Commonwealth v. Booker, 31 Mass. App. Ct.

435, 438 (1991) (defendant did not constructively possess drugs in a common area of her

apartment when no other evidence warranted an inference of her control over them).

All this supplies the "plus factor" beyond presence alone to permit a finding that the defendant

had constructive possession of the cocaine found in the basement. The same evidence permits a

finding that the defendant had knowledge of the criminal operation and was willing and available

to help if necessary; i.e., he was a participant in the joint venture. Commonwealth v. Meehan, 33

Mass. App. Ct. 262, 264 (1992).

2. Criteria for acting on a motion for required finding of not guilty. During argument on the

motion for a required finding of not guilty, defense counsel argued that the judge could not, on

the basis of the evidence, find beyond a reasonable doubt that Velasquez had been a party to the

drug dealing at 40 Central Street. The judge responded, "The standard is whether the

Commonwealth has proved a legally sufficient case." On the basis of this exchange, the defense

argues on appeal that the judge misinstructed himself as to the criteria for acting on a motion for

a required finding of not guilty.

Conflict between those two statements is more apparent than real. The judge apparently had his

mind on the text of rule 25(a), which provides that a motion for a required finding of not guilty

shall enter "if the evidence is insufficient as a matter of law to sustain a conviction on the

charge." What constitutes sufficient evidence was explicated in Jackson v. Virginia, 443 U.S.

307, 318-319 (1979), as follows: "the . . . question is 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" (emphasis in original). That was the

formulation adopted in Commonwealth v. Latimore, 378 Mass. at 676-679, and appellate

opinions in Massachusetts have repeated it so often that the language has achieved the status of a

mantra.³

We highly doubt that the judge was unaware of so familiar a standard. When defense counsel

launched her required finding argument, she recited the Jackson-Latimore standard almost as

quoted above and the judge did not contradict her. The motion for a required finding of not guilty

appropriately came at the close of the Commonwealth's case. At that point, the judge did not

need to be conclusively persuaded that the inculpating facts had been proved...