Opinion
No. 12–P–85.
2013-05-7
COMMONWEALTH v. Luis TEXIDOR.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of unlawful possession of heroin and cocaine with intent to distribute. On appeal, he contends that the Commonwealth proved neither his knowledge of, nor his ability and intention to exercise dominion and control over, the narcotics in question, and accordingly, his motion for a required finding of not guilty was denied in error. As we find evidence of the defendant's possession legally insufficient, we reverse.
Given our decision, there is no need to discuss the defendant's alternative argument that there lacked sufficient evidence of his intent to distribute the drugs to have warranted the judge's denial of his motion for required finding on that basis.
At trial, the Commonwealth proceeded on a theory of constructive possession since at no time did the evidence show that the defendant actually possessed the drugs found by police on the ground next to a row house located at 29 West Court Street, Holyoke. Specifically, the officers discovered the drugs inside of a potato chip bag—secured underneath a brick—near an evergreen bush by which two police officers had previously observed a man, later identified as the defendant, bending down.
The evidence most favorable to the Commonwealth established the following. Holyoke police Detectives John Collamore and Kenneth Ferris, undercover and patrolling the area around the Lyman Terrace housing projects (Lyman Terrace) shortly after 10 A.M. on a Sunday morning, first sighted the defendant, who was already bending near the bush, with his arms extended as he reached toward the ground. The bush partially obstructed the officers' view of the defendant from their vantage point of twenty yards or more and they could not see the defendant's hands. Neither officer testified that he had touched the bag, nor that he had anything in his hands as he moved away; at one point, however, Detective Ferris described the defendant “as if he was putting something on the ground or picking something up.” Within five seconds or so, the defendant straightened and walked away.
The officers, having lost sight of the defendant, twice circled the streets surrounding Lyman Terrace in their unmarked vehicle, slowing as they noticed the defendant ride past them on his bicycle. Eventually returning to 29 West Court Street, the officers exited the cruiser and approached the bush. On the far side of the bush, resting against the building, the officers observed a brick atop a potato chip bag. Detective Collamore looked inside the bag, which held three small plastic bags each containing numerous packets of what appeared to be heroin and cocaine. The officers arrested the defendant the following day.
In analyzing whether the Commonwealth met its burden of production, the court will inquire “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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The Commonwealth failed to meet this burden. Even in the “prosecution-friendly” light of Latimore, (see Commonwealth v. Latney, 44 Mass.App.Ct. 423, 426 [1998] ), we are not persuaded that any rational jury could have found beyond a reasonable doubt the necessary elements of constructive possession: “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498 (1984).
“Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.” Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting from Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618 (1990). “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....’ “ Commonwealth v. Gouse, 461 Mass. 787, 795 (2012), quoting from Commonwealth v. Gonzalez, supra. Here, the Commonwealth contends that a factfinder reasonably could infer that the defendant had placed the bag underneath the brick, both a reflection of his knowledge of the narcotics contained therein, and an exercise of his dominion and control over the same. We disagree that such inferences can be reasonably drawn from the evidence. See, e.g., Commonwealth v. Handy, 30 Mass.App.Ct. 776, 782 (1991) (“In short, no incriminating circumstantial evidence supplemented [the defendant's] mere presence. Nothing established a nexus between [the defendant] and the seized [drugs] that supports a rational inference that he either knew of the [drugs'] existence or could exercise dominion and control over it ...”).
Instead, the evidence warranted the inference that the defendant, as he crouched, noticed the bag underneath the brick, possibly even that he maintained a distance close enough to have enabled him to touch it. “The evidence went no further than that, however, and did not establish the Commonwealth's ... charge[s] beyond unacceptable conjecture or surmise.” Id. at 779. In our view, the evidence, and the reasonable inferences therefrom, do not otherwise support beyond a reasonable doubt the jury's conclusion that the defendant knew of the presence of the drugs, let alone that the defendant had the intention to exercise dominion and control over them.
In light of the decision we reach, there is no need to address the defendant's remaining contentions, but we do not condone the misstatement of evidence in the prosecutor's closing statement, to the effect that the defendant had fiddled with the bag. Even were we to conclude that sufficient evidence of constructive possession existed, such a misstatement in these circumstances might well have created a substantial risk of a miscarriage of justice.
In particular, we find no “specific circumstances that can be weighted as ‘plus' factors, ‘i.e., incriminating evidence of something other than presence.’ “ Commonwealth v. Lara, 58 Mass.App.Ct. 915, 916 (2003), quoting from Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 149 (1999). That there were no other people or debris in the direct vicinity of 29 West Court Street at the time the officers first happened upon the defendant, nor in the general vicinity of Lyman Terrace as the officers circled the surrounding streets, does not tip the scales in favor of sufficiency. Contrary to the Commonwealth's suggestion, the facts here do not adequately parallel those in Commonwealth v. Lara, supra, and Commonwealth v. Duncan, 71 Mass.App.Ct. 150, 153–154 (2008). In the instant case, the officers maintained minimal surveillance, at best, of the defendant himself, and altogether abandoned their surveillance of the location where the drugs were later uncovered in order to search for the defendant after he had departed from the scene without alarm. Contrast Commonwealth v. Lara, supra at 915–916 (officers observed the defendant, whom they had under surveillance, “actively participate and take meaningful action” in hiding a stash of drugs at the base of a tree); Commonwealth v. Duncan, supra at 153–154 (following a report of gunfire, officers momentarily lost sight of one defendant as he slipped behind a fence, but shortly thereafter, uncovered two handguns hot to the touch and completely dry, despite the wet conditions outside, in a trash barrel behind that same fence). Absent other factors buttressing the defendant's knowledge and intention to control the narcotics in question, the jury was not free to infer that the defendant's presence alone, coupled with the officers' observations that no other people were in the direct and general vicinity, led to a finding of constructive possession. See Commonwealth v. Romero, 464 Mass. 648, 656–659 (2013).
Although Detective Ferris testified that “[t]here may have been some people up around High and Hampden [Streets],” approximately 100 to 120 feet from 29 West Court Street, the jury were entitled to credit Detective Collamore's account to the effect that he did not see anyone else out on Court Street.
The defendant's defense is illustrative of the familiar adage from Commonwealth v. Croft, 345 Mass. 143, 145 (1962), quoting from Commonwealth v. O'Brien, 305 Mass. 393, 400 (1940): “When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.” This concept “pertains only to situations in which any view of the Commonwealth's evidence, however favorable, still requires a leap of conjecture with respect to essential elements of the crime charged in order to obtain a conviction.” Commonwealth v. Latney, 44 Mass.App.Ct. 423, 426 (1998). Here, the Commonwealth's case depends upon such a speculative leap. Due to significant evidentiary gaps, we cannot say beyond a reasonable doubt that the defendant's actions were innocent, suspicious, or criminal.
Judgments reversed.
Verdicts set aside.
Judgments for the defendant.