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Commonwealth v. Handy, 30 Mass.App.Ct.
776 (1991)
Appeals Court of Massachusetts,
No. 90‑P‑749.
Argued
Decided
John T. Burns,
Lauren Inker, Asst. Dist. Atty., for Com.
Before BROWN, GILLERMAN
and LAURENCE, JJ.
LAURENCE, Justice.
Robert
Handy appeals from his conviction upon an indictment charging him with
trafficking in cocaine on December 15, 1988, by unlawfully, knowingly and
intentionally possessing with intent to distribute more than twenty‑eight
grams of cocaine in violation of G.L. c. 94C, §
32E. He contends that the trial judge
erred in denying his motion for a required finding of not guilty, which was
made at the close of the Commonwealth's case and renewed at the close of all
the evidence. (FN1) We conclude that the evidence was legally
insufficient to sustain a conviction on the trafficking charge. The Commonwealth did not establish an
essential element of the crime charged, Handy's
actual or constructive [30 Mass.App.Ct. 777]
possession of the forty‑eight gram stash of cocaine seized by the police
at the house where he was arrested.
Viewing,
as we must, the evidence and all reasonable inferences therefrom
in the light most favorable to the prosecution, Commonwealth v. Salemme, 395 Mass. 594,
595, 481 N.E.2d 471 (1985); Commonwealth v. Merola,
405 Mass. 529, 533, 542 N.E.2d 249 (1989), in order to determine if any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt, Commonwealth v. Pope, 406 Mass. 581, 584, 549 N.E.2d 1120 (1990);
Commonwealth v. Good, 409 Mass. 612, 617, 568 N.E.2d 1127 (1991), we
summarize the facts that the jury could have found.
From
December 12 through
[30 Mass.App.Ct.
778] On the basis of this
surveillance, McGill applied for and received a no‑knock search warrant
for 41 Lawrence Avenue on December 14, which he, Flynn and eight other police
officers executed the next day, December 15, 1988. As they ran up the porch stairs toward the
front door of the house, the officers observed a juvenile standing in the
doorway, who began shouting "5‑0." The door was then apparently shut, for
McGill testified he had to smash through it with a sledge hammer. A number of people inside the house ran from
the front of the house to the rear.
McGill saw Handy flee down a hallway to the rear right corner of the
first floor. McGill and another officer
caught up with and arrested him trying to get out of a window that had bars on
the outside which prevented any exit.
(FN2)
On the
second floor, which was unoccupied, Flynn discovered a kitchen area that
contained a table, four or five chairs, scales, a small sink and refrigerator,
a stove and plastic bags. A Bunsen
burner was on a hot plate. A search
resulted in the recovery of a bag containing a white substance, eight tin foil
packages, a white rock substance, one tin foil of white powder, (FN3) a box of
baking soda, a box of tin foil, a beam scale, plastic bags and $2,128 in mostly
ten and twenty dollar bills. No drugs or
paraphernalia were found on the first floor, which was largely empty except for
a few pieces of furniture. No fuse‑like
vials were found on Handy or anywhere in the house. No marijuana (which Handy testified he had
stopped by the house to purchase a few minutes before the raid occurred, as he
admitted he had on a few prior occasions) was discovered in the house or on Handy's person.
Although the police looked deliberately, their search uncovered no
books, papers, clothing or other belongings linking Handy to the second floor
where the drugs were found or to occupancy of the house. At the time of his arrest, Handy had on his
person [30 Mass.App.Ct.
779] keys, a ring, cigarettes, some
change and an empty black wallet.
[1] This
evidence could be viewed as placing Handy inside the first floor of the house
on 41 Lawrence Avenue on one occasion prior to December 15, 1988, answering the
door several times and taking money in exchange for small plastic vials. The jury might reasonably infer that these vials
had contained some kind of contraband, possibly even derived from the cocaine
found on the second floor during the search of the house. See
Commonwealth v. Merola, 405 Mass. at 533, 542
N.E.2d 249 (inferences drawn from circumstantial evidence "need only be
reasonable and possible ... not ... necessary or inescapable," quoting
from Commonwealth v. Beckett, 373
Mass. 329, 341, 366 N.E.2d 1252 [1977] ).
The evidence went no further than that, however, and did not establish
the Commonwealth's trafficking charge beyond unacceptable conjecture or
surmise. See Commonwealth v. Ancillo, 350 Mass. 427,
432‑433, 214 N.E.2d 870 (1966).
(FN4)
The case
against Handy and this appeal turn on the sole question whether the
Commonwealth presented sufficient evidence[30
Mass.App.Ct. 780] to prove that Handy had possession of the
cocaine seized by the police on the second floor of the house at 41 Lawrence
Street on December 15, 1988. "
'Possession implies "control and power," exclusive or joint ..., or,
in the case of "constructive possession," knowledge coupled with the
ability and intention to exercise dominion and control.' 'Proof of possession of a controlled
substance may be established by circumstantial evidence, and the inferences
that can be drawn therefrom.' 'While presence in an area where contraband
is found "alone cannot show the requisite knowledge, power, or intention
to exercise control over the [contraband] ... presence, supplemented by other
incriminating evidence, will serve to tip the scale in favor of
sufficiency." ' " (Citations
omitted.)
Commonwealth v. Arias, 29 Mass.App.Ct.
613, 617‑618, 563 N.E.2d 1379 (1990),S.C.,
410 Mass. 1005, 572 N.E.2d 553 (1991).
Since
there was no evidence that Handy ever had actual possession of any cocaine, the
Commonwealth had to prove his constructive possession of the drugs found on the
second floor of the apartment, which required a showing that he "knew of
the presence of [the] cocaine and had the ability and intention to exercise
dominion and control over it." Id. 29 Mass.App.Ct.
at 618, 563 N.E.2d 1379. The
Commonwealth failed to make that showing.
There was no evidence that Handy had knowledge of or control over the
cocaine on the second floor. The sum of
the Commonwealth's evidence against him amounted to no more than his presence
on the first floor of a house on the second floor of which cocaine was
discovered. Presence alone is not
sufficient to prove the requisite knowledge and intent to control necessary to
establish constructive possession of contraband. Commonwealth v. Garcia, 409
Mass. 675, 687, 569 N.E.2d 385 (1991).
Here there was no supplementary incriminating evidence to tip the scale
in favor of sufficiency.
[2] There
was no evidence that Handy owned, rented, or stayed in the house or any part of
it. See Commonwealth v. Flaherty, 358 Mass. 817, 818, 266 N.E.2d 875
(1971);
Commonwealth v. Lee, 2 Mass.App.Ct. 700,
704‑705, 319 N.E.2d 732 (1974), and cases cited. Contrast
Commonwealth v. Brzezinski, 405 Mass. 401, 410,
540 N.E.2d 1325 (1989); Commonwealth v. Nichols, 4 Mass.App.Ct. 606, [30
Mass.App.Ct. 781]
613, 356 N.E.2d 464 (1976); Commonwealth v. Miller, 17 Mass.App.Ct. at 991, 459 N.E.2d 136 (all relying on fact
that defendant rented or lived in apartment where contraband found). (FN5)
There was no evidence of personal papers or other effects linking Handy
to the house generally or to the second floor in particular. See
Commonwealth v. Flaherty, 358 Mass. at 818, 266 N.E.2d 875;
Commonwealth v. Williams, 3 Mass.App.Ct.
370, 371‑372, 330 N.E.2d 502 (1975).
Contrast Commonwealth v. Lee,
2 Mass.App.Ct. at 701‑702, 319 N.E.2d 732;
Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 499 N.E.2d 1233 (1986);
Commonwealth v. James, 30 Mass.App.Ct.
490, 494, 570 N.E.2d 168 (1991) (all involving personal property of defendant
found in proximity to the seized contraband).
There was no evidence that Handy possessed large amounts of cash,
commonly associated with drug dealings.
Contrast Commonwealth v. Brzezinski, 405 Mass. at 410, 540 N.E.2d 1325. Handy made no damaging admissions to the
police concerning the cocaine. See Commonwealth v. Brown, 401 Mass. 745,
748, 519 N.E.2d 1291 (1988). Contrast Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 499, 459 N.E.2d 1236 (1984).
Finally, Handy's actions in response to the police raid impressively
negated any link to either the house or the cocaine on the second floor. His abortive flight, which led him to a
barred window in the rear of the house that made his escape impossible,
reflected both an unfamiliarity with the premises and the absence of protective
behavior toward or awareness of the contraband.
Contrast Commonwealth v. Brzezinski, 405 Mass. at 410, 540 N.E.2d 1325
(defendant responded to police entry by running into closet containing cocaine
and drug paraphernalia); Commonwealth v. James, supra, at 497‑498,
570 N.E.2d 168 and cases cited (defendant ran upstairs and tried to flee into
the very [30 Mass.App.Ct.
782] apartment containing the stash
of contraband, inferentially to assist in its concealment or destruction). (FN6)
In short,
no incriminating circumstantial evidence supplemented Handy's
mere presence. Nothing established a
nexus between Handy and the seized cocaine that supports a rational inference
that he either knew of the cocaine's existence or could exercise dominion and
control over it, or over that portion of the house in which it was found. In these circumstances the trial judge should
have allowed Handy's motion for a required finding of
not guilty. See Commonwealth v. Flaherty, 358 Mass. at 818, 266 N.E.2d 875;
Commonwealth v. Garcia, 409 Mass. at 687, 569 N.E.2d 385;
Commonwealth v. Williams, 3 Mass.App.Ct.
at 371‑372, 330 N.E.2d 502; Commonwealth v. Deagle,
10 Mass.App.Ct. 563, 567‑569, 409 N.E.2d 1347
(1980).
The
judgment is reversed, the verdict is set aside, and the case is remanded to the
Superior Court for entry of a finding of not guilty.
So ordered.
(FN1.) Handy also bases his appeal on several
other asserted errors, including the improper introduction of evidence of
several prior convictions and the judge's failure to instruct the jury as to a
lesser included offense. In view of our
reversal of his conviction, we need not address those issues.
(FN2.)
The police also arrested six other persons who were in the house at the time.
(FN3.)
The police found more than forty‑eight grams of cocaine in their
search. The white substance in the
plastic bag alone contained 46.34 grams of cocaine with an assay value of
eighty‑three percent.
(FN4.)
The Commonwealth on several occasions conceded that its case against Handy
rested solely on his asserted possession of the cocaine found on the second
floor of the 41 Lawrence Avenue house on December 15, 1988, and not on his
alleged participation in the distribution of the vials on prior days. In her closing, the prosecutor admitted that
McGill was unable to state what was in the vials. The fact that Handy exchanged small plastic
vials for money was insufficient to connect him to trafficking in cocaine. No evidence existed as to the nature or
quantity of whatever substances were within the vials, none of which was ever
found at the house or on Handy. The
method of dispensing cocaine discovered in the search, tin foil packets,
obviously differed from the vials McGill described. Contrast
Commonwealth v. James, ante 30 Mass.App.Ct. 490,
495‑497, 570 N.E.2d 168 (1991) (evidence that bags of cocaine defendant
discarded were indistinguishable in content and packaging from those found in
apartment with large cocaine stash warranted inference of connection to that
stash). In prior cases, convictions
following police surveillance that implicated a defendant in drug distribution
transactions have also been based upon evidence of the defendant's actual
possession of the drugs or of his occupation of the drug situs. See
Commonwealth v. Lee, 2 Mass.App.Ct. 700, 704‑705,
319 N.E.2d 732 (1974); Commonwealth v. Cooke, 3 Mass.App.Ct. 708, 323 N.E.2d 737 (1975);
Commonwealth v. Miller, 17 Mass.App.Ct.
991, 991‑992, 459 N.E.2d 136 (1984).
No such additional evidence existed here.
(FN5.)
As these authorities hold, a defendant's ownership of or residential status at
a premises is a relevant inculpatory factor to be
considered in determining whether he can be regarded as being in constructive
possession of contraband found on those premises, since it indicates "more
than mere presence." See Commonwealth v. Arias, 29 Mass.App.Ct. at 616, 563 N.E.2d 1379. The absence of such evidence, while relevant
under the case law, should probably not be deemed equivalently exculpatory, in
light of the mobility of retail drug operations. See, e.g.,
Commonwealth v. Scalise, 387 Mass. 413, 416, 439
N.E.2d 818 (1982); Commonwealth v. Chausse,
30 Mass.App.Ct. 956, 957, 571 N.E.2d 425 (1991).
(FN6.)
Although evidence of a defendant's flight is admissible as some evidence of
consciousness of guilt, standing alone it is not an adequate basis for
conviction (as the judge properly instructed the jury), "since there are
numerous reasons why an innocent person might flee...."
Commonwealth v. Toney, 385 Mass. 575, 585‑586 n. 6, 433 N.E.2d
425 (1982). It is a particularly
insufficient foundation where, as here, the defendant "had at least one
other motive" for his action, see
Commonwealth v. Fancy, 349 Mass. 196, 201, 207 N.E.2d 276 (1965), and
"where the other evidence is so slight." Commonwealth v. Spina, 1 Mass.App.Ct. 805,
806, 294 N.E.2d 500 (1973).