NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 26, 2009, the defendant, Joseph Beatrice, was charged with one count of possession with intent to distribute a class B controlled substance, and one count of a drug violation near a school. Identical charges were brought against a codefendant, David Carol, who is not an appellant in this case. On February 11, 2010, the defendant filed a pretrial motion to sever, which was denied. A jury trial was held on March 22 and 23, 2010, before a different judge.
At trial, Robert Ford testified for the Commonwealth that on the night of January 23, 2009, he did not recall seeing the defendant in his apartment but that Carol, the codefendant, came to his apartment along with some other individuals wanting to 'cut drugs.' Ford further testified that while he was looking under his counter for sandwich bags, Carol kicked him in the chest. Ford then left his apartment, flagged down Brockton police officers, and told them he had been beaten up. Ford admitted that he had problems with crack cocaine and that he had allowed people to come to his apartment to break up drugs, but that he no longer wanted it to occur and wanted the police to remove the people from his apartment. Ford gave his house keys to the police, who proceeded to the apartment.
When they arrived outside the apartment door, the officers could hear movement inside the apartment, including the sound of clanging glass and toilet bowl flushing. They announced their presence before opening the door. Once they entered the apartment they did not find anyone in the kitchen, bedroom, living or dining rooms, but they heard movement and, again, the sound of clanging glass and toilet bowl flushing from behind the closed door of the bathroom. After they knocked on the bathroom door several times and announced that they were police officers, the defendant and Carol opened the bathroom door. Only Carol and the defendant were inside the very small bathroom; they were standing close to each other around the toilet bowl. Inside the toilet bowl, the officers found a clear plastic bag of suspected crack cocaine. They also found two glass plates, one on the sink and one on the floor, both of which had a residue of suspected crack cocaine. Both men were ordered out of the bathroom and were patfrisked and handcuffed. Nothing was found on either man aside from eighty dollars on Carol and forty-seven dollars on the defendant.
At the close of the Commonwealth's evidence, counsel for both defendants moved for a required finding of not guilty on all the charges. The trial judge allowed the defendant's motion as to the possession with intent to distribute portion of count one and the school zone charge was also dismissed as a result. Carol's motion, however, was denied, and the case proceeded against him on all charges.
At trial, the defendant testified that he had never possessed the drugs in question and did not know any drugs were in the bathroom where he was discovered hiding from the police with Carol. He testified that when he and Carol saw the police outside the apartment, they ran and locked themselves in the bathroom. He testified to being in the bathroom for ten seconds or less before the police demanded they open the door.
The codefendant, Carol, did not testify. However, during closing argument, Carol's counsel argued that both defendants were merely 'snorting' cocaine together in the bathroom, in an attempt to persuade the jury to find his client guilty only of the lesser, simple possession charge. The jury convicted both defendants only of simple possession.
We turn first to the defendant's argument that there was insufficient evidence to support the jury's verdict on the charge of simple possession of a class B controlled substance. The Commonwealth presented sufficient evidence, albeit circumstantial, to support a finding that the defendant had possession of the drugs found in the bathroom and that such possession was knowing and voluntary. See Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985) ('Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom').
Although the defendant denied any knowledge of the drugs or that he ever exercised control over them, the jury heard testimony that when the police entered the apartment they heard the sound of clanging glass and a toilet being repeatedly flushed and, upon entering the bathroom, found both defendants standing over the toilet bowl in which a bag containing crack cocaine was found floating in plain view. Also found in the bathroom were two glass plates, both of which had a residue of suspected crack cocaine. Knowledge can be inferred under such circumstances. See, e.g., Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323-324 (2010).
Next, we address the defendant's argument that his motion to sever was improperly denied by the motion judge. Severance is a matter within the sound discretion of the judge. Commonwealth v. Moran, 387 Mass. 644, 658 (1982). However, 'when the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial . . ., failure to sever constitutes an abuse of discretion.' Ibid. This strong showing of prejudice can be made where the codefendants' defenses are so antagonistic that '[t]he only realistic escape for either defendant was to blame the other.' Id. at 659.
The defendant failed to make such a showing at the time of his pretrial motion. See id. at 659-660 ('[D]enial of a requested severance does not require reversal unless the request is made at a time when the necessity for severance has been firmly established. A premature request for severance, not renewed when the necessity to sever has been established, is not sufficient '). See also Commonwealth v. Rogers, 38 Mass. App. Ct. 395, 408 (1995) (where there is no renewal of the defendant's motion to sever 'the sole question before us is whether at the time of the ruling on the motion, the necessity for severance had been firmly established'). At the time of the defendant's pretrial motion it was not clear that either defendant would attempt to escape conviction by blaming the other, nor did the codefendants offer mutually antagonistic theories in their opening statements. See Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 809 (2008). In fact, the reasons stated by the defendant in his pretrial affidavit for requesting severance never came to fruition. The defendant was concerned that each defendant would contend that the other solely possessed the alleged drugs. However, there was no implication from counsel that such a theory would be advanced, and nowhere over the course of trial was such a theory developed. The motion judge therefore did not abuse his discretion in refusing to allow the defendant's pretrial motion to sever. See ibid.
Finally, the defendant argues that Carol's counsel's statements made in closing argument were improper and that they denied him a fair trial.
In closing argument, counsel for Carol argued to the jury that both defendants had used drugs in the bathroom and were guilty of simple possession. He told the jury 'they were both in there, two guys, two plates, small amount of cocaine that was mushed up so a residue formed that they were snorting. That's possession and that's what I'm going to ask you to find Mr. Carol guilty of because that's something we've never disputed.'
While Carol's counsel did not place blame exclusively on the defendant, this effective admission of Carol's guilt, and of the inculpatory events taking place in the bathroom, was directly at odds with the defendant's defense, which proceeded on the theory that he had exercised no possession or control over the seized drugs and in fact was not even aware of their presence in the bathroom. Beyond that, it was a concession on behalf of Carol made through his attorney that directly implicated the defendant in the crime.
A reasonable juror could well have concluded that this concession made by Carol's counsel of facts amounting to an admission of a criminal offense -- unlike some other exculpatory theories put forward by Carol's counsel in closing -- were made only after Carol had himself confirmed with his counsel that this is what had occurred. While this would be unobjectionable were Carol being tried alone, such an inculpatory concession by Carol's counsel was likely to be given substantial weight by the jurors in their deliberation of the defendant's case. Cf. Commonwealth v. Nordstrom, 364 Mass. 310, 315 (1973) (argument must be made on the evidence, not on the personal knowledge of the attorney). Like a confession of a codefendant that explicitly implicates the accused, an admission by codefendant's counsel in closing argument that both defendants are guilty of the crime is 'powerfully incriminating.' See Gray v. Maryland, 523 U.S. 185, 192 (1998). And of course, it is not subject to cross-examination. Cf. Bruton v. United States, 391 U.S. 123, 135-136 (1968).
However, defense counsel did not object to any portion of the closing by Carol's counsel, nor did he move to strike, or request a curative instruction, severance, or a mistrial. Consequently, the error must be reviewed to determine whether it created a substantial risk of a miscarriage of justice.
We think in these circumstances the question whether this error created a substantial risk of a miscarriage of justice would best be addressed in the first instance by the trial judge in a motion for new trial. Unlike us, the trial judge may, if necessary, take evidence and make findings of fact about what occurred at trial. The judgment is therefore affirmed without prejudice to the defendant seeking relief from the District Court on this ground in a motion for new trial, should he so choose.
By the Court (Graham, Rubin & Wolohojian, JJ.),