Commonwealth v. Boria

798 N.E.2d 1017, 440 Mass. 416, 2003 Mass. LEXIS 819
CourtMassachusetts Supreme Judicial Court
DecidedNovember 20, 2003
StatusPublished
Cited by31 cases

This text of 798 N.E.2d 1017 (Commonwealth v. Boria) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Boria, 798 N.E.2d 1017, 440 Mass. 416, 2003 Mass. LEXIS 819 (Mass. 2003).

Opinion

Ireland, J.

A District Court jury convicted the defendant of possession with intent to distribute a Class B substance (cocaine) (G. L. c. 94C, § 32A [c]), and possession with intent to distribute within 1,000 feet of a school (G. L. c. 94C, § 32J).1 At the close of the Commonwealth’s case against her, the defendant moved for a required finding of not guilty. The judge denied the motion. The defendant appealed, claiming that the judge erred in denying her motion, and that the prosecutor improperly referred to facts not in evidence in closing argument, thereby creating a substantial risk of a miscarriage of justice. The Appeals Court, in an unpublished opinion pursuant [417]*417to its rule 1:28, affirmed the defendant’s convictions. 57 Mass. App. Ct. 1106 (2003). We granted the defendant’s application for further appellate review. Because we conclude that the evidence, viewed in a light most favorable to the Commonwealth, Commonwealth v. Cordle, 412 Mass. 172, 175 (1992), was insufficient for the jury to find the defendant guilty beyond a reasonable doubt of actual or constructive possession of the cocaine seized in a search, we reverse the convictions.2

1. Facts. The jury could have found the following facts. At the outset, we note that there is a dearth of evidence in this case, a point addressed more fully below, see note 5, infra.

Pursuant to a search warrant, on October 20, 2000, several police officers went to an apartment in Brockton, knocked on the door, and announced themselves. When no one answered, they forced the door open with a metal ram. Present in the apartment were two men and the defendant. The defendant was sitting on the living room floor and the television was on. Police secured the three individuals, including the defendant, and searched them. No cocaine (or other incriminating evidence) was found on the defendant.3 The defendant told one of the officers that she lived in the apartment and that she was the girl friend of one of the men.

The police officers searched the living room and the kitchen. Inside a video cassette recorder (VCR) located in the living room, they found nine small plastic bags containing cocaine. In the kitchen, they found various items that, according to trial testimony, are used in processing cocaine for distribution.4

One officer searched a closet in the living room and two items found there were introduced in evidence. One was an address book containing the defendant’s name and telephone number on the page for the letter “B.” The other was an “AFDC/RRP” application from the Department of Public [418]*418Welfare (AFDC application), dated August 2, 2000, containing the defendant’s name, signature, date of birth, and social security number. The address on the AFDC application was the same as the address of the apartment that was searched. One detective found a notebook with documentation that looked like it related to “people who owed money.” The notebook was not introduced in evidence, nor was there any evidence that it belonged to the defendant.

2. Denial of the defendant’s motion for a required finding of not guilty. We evaluate the denial of a motion for a required finding of not guilty to determine whether “the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury ‘might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.’ ” Commonwealth v. Pope, 406 Mass. 581, 584 (1990), quoting Commonwealth v. Clary, 388 Mass. 583, 588 (1983).

In this case, because incriminating evidence was found in the apartment but not on the defendant herself, the issue before us is whether the Commonwealth proved, beyond a reasonable doubt, that the defendant had constructive possession of the drugs. Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990), S.C., 410 Mass. 1005 (1991). Proof of constructive possession requires the Commonwealth to show “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). “Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Commonwealth v. Brzezinski, supra at 409, quoting Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). However, “presence in an area where contraband is found ‘alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] .’ ” Commonwealth v. Brzezinski, supra at 409-410, quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977). Living in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is [419]*419not enough to prove constructive possession. See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225-227 (1993); Commonwealth v. Booker, 31 Mass. App. Ct. 435, 437-438 (1991), and cases cited.

In order for there to be sufficient evidence to prove constructive possession, “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Brzezinski, supra at 410, quoting Commonwealth v. Albano, supra. Other incriminating evidence is required because “the peril is that the [constructive possession] doctrine may be used in narcotics prosecutions as support for preexisting suspicions rather than as an abstraction fostering fair analysis.” Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 238 (1997).

Commonwealth v. Alcantara, 53 Mass. App. Ct. 591 (2002), discussed in the Appeals Court’s unpublished memorandum, is inapposite. There, when the master bedroom was searched, police found two pagers, a large amount of cash hidden in a curtain, and in a dresser, documents identifying Alcantara, thereby linking him to that bedroom. Therefore, it was reasonable to infer that the defendant was the one who had dominion and control of the crack cocaine found under a kick plate of the bathroom sink and in a pill bottle bearing his name. Id. at 592, 597.

The facts in this case are more in keeping with Commonwealth v. Brown, supra, and Commonwealth v. Booker, supra. In the Brown case, the defendant lived with others in the apartment that was searched, and her personal belongings and personal papers were found there. In addition, “if she had eyes” she would have known that dmgs were being prepared, sold by passing them under the door of the apartment, and that the door was barricaded when the police executed their search warrant. Id. at 225-226. The Appeals Court held, however, that the evidence was insufficient to support her conviction where, inter aha, no cocaine or cash was found on Brown’s person or in her belongings, the bedroom in which the police found her personal things did not contain dmgs, Brown had no key to the premises, none of the furniture was hers, and the duration of her stay was not established. Id. at 226-227.

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Bluebook (online)
798 N.E.2d 1017, 440 Mass. 416, 2003 Mass. LEXIS 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-boria-mass-2003.