Commonwealth v. James

570 N.E.2d 168, 30 Mass. App. Ct. 490, 1991 Mass. App. LEXIS 260

• Court: Massachusetts Appeals Court
• Decided: April 26, 1991
• Docket: 90-P-424
• Status: Published

Opinions

Armstrong, J.

On the evening of October 29, 1987, Springfield police officers approached 55 Reed Street, Springfield, to execute a warrant to search the third-floor apartment. Several persons were standing on the first-floor porch or in a doorway to a staircase that led to the second and third-floor apartments. They began shouting warnings that the police were coming and fled up the stairs to the third-floor apartment.² The defendant James, who was on the porch, was evidently the last to flee into the house, and he slammed the door shut on the first of the police officers, John O’Mara. The defendant ran up the stairway with Officer O’Mara ten feet behind, followed by other officers. When the defendant reached the third-floor apartment, he tried to enter it but the door had been locked. (The police heard cries within, “Police, lock the door.”) Officer O’Mara saw the defendant drop a plastic bag in the hall outside the apartment. The defendant fled to the third-floor porch. O’Mara kicked in the door of the apartment and entered the living room. Other officers, Sergeants Thomas Kelly and Kevin Dudley, followed the defendant. They saw him “crouched in a ball” in a corner of the porch; nearby were plastic bags. As he tried to climb to the roof, officers seized and arrested him. Retrieved from the hallway floor outside the apartment was a plastic bag containing eight smaller plastic bags of cocaine weighing a total of 3.31 grams and from the porch, five bags of cocaine weighing 1.77 grams; altogether 5.08 grams, recognized by the officers as crack cocaine in white chunk form,³ with a street value of fifty dollars a bag (a “jumbo”), or $650 in all. The defendant had on his person $265 in cash. He told the police that he lived in Miami but was staying at 55 Reed Street.

O’Mara and other officers, upon entering the living room of the apartment, encountered Courtney McKenzie, Donald Johnson, and George A. Smith (aka Steven DePriest). On the floor beside them were six plastic bags of cocaine with a total weight of 2.55 grams, also one bag of cocaine weighing 0.55 grams. Under the living room couch the officers found a large plastic bag containing eighty bags of cocaine, together weighing 26.24 grams. The grand total of cocaine in the apartment was thus 29.34 grams. All was in the form of white chunks, recognized by the officers as crack cocaine, packaged (like the crack the defendant had dropped) in fifty dollar bags. The cocaine found in the apartment thus had a street value of $4,350.

In the back bedroom the officers found Angela McKenzie (aka Angela Wiley) and another woman and a considerable amount of marihuana, some packaged in small (“dime”) bags, some unpackaged, and a supply of empty dime-size bags.

After further search of the apartment, the officers recovered from a bureau drawer in another bedroom a .25 caliber Browning automatic pistol with an empty clip, together with ammunition of a larger caliber. The police also found a bill from a Holiday Inn in the name of Steven DePriest and papers belonging to others, including papers of the defendant; the testimony does not disclose the nature of these papers or the place or places in the apartment where they were found. Courtney McKenzie had $330 on his person, Johnson $250, Smith $76, and Angela McKenzie $171.

The foregoing account summarizes facts that could have been found by a jury upon the trial of the defendant James and a codefendant, George A. Smith, in Superior Court. The crimes charged against the defendant were possession of cocaine with intent to distribute, possession of marihuana with intent to distribute, and trafficking in cocaine (weight in excess of twenty-eight grams). The jury brought in guilty verdicts and judgments of conviction followed, the conviction of possession with intent to distribute being dismissed as duplicative.

On appeal the defendant contests all the convictions as being unwarranted by the evidence. He claims in particular that the evidence was not sufficient to connect him to the cocaine inside the third-floor apartment, a connection that was essential to the trafficking conviction,⁴ and, while he does not question the sufficiency of the evidence to show his possession of the thirteen bags of cocaine (eight from the hallway, five from the porch) that marked his path of flight, he contends that the aggregate amount, 5.09 grams, with a value of $650, was as consistent with personal use as with an intent to sell. See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 422-424 (1982); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 & n.10 (1984). This issue we need not face if the judge was correct in ruling that the evidence warranted an inference of the defendant’s complicity in possessing and distributing the cocaine found inside the apartment.

In the view of a majority of the court, the jury could properly find on the foregoing evidence that the third-floor apartment at 55 Reed Street was the base of a cocaine distribution operation (the base in the sense that it was the location of the stash, if not also the place from which sales were made) and that the defendant James was implicated in the operation, if not as one of the persons who had actual or constructive possession of the stash, at least as one who aided and assisted those persons in the possession and distribution of the cocaine in the stash. Three strands of evidence, overlapping to some extent, warranted that inference.

First, there was evidence that established the nexus between James and the apartment, evidence that would support a finding that James was living there (even if only temporarily). He admitted to the police that he was “staying at 55 Reed Street,” meaning in context that he was staying in one of the three apartments at that address. When the police arrived, he followed others through the door and up the stairs that led to the second and third-floor apartments.* ***⁵ He attempted to follow the others into the third-floor apartment and would have done so, presumably, if the door had not by then been locked. Papers belonging to the defendant were found inside the third-floor apartment.⁶

Second, there was the evidence that the bags of cocaine that the defendant was discarding were apparently indistinguishable in content and packaging from those found by the police inside the apartment. While the laboratory certificates did not specify the type or the purity of cocaine in the separate packages,* **⁷ the narcotics officers, some of whom had extensive experience in narcotics investigations and seizures, identified the white chunks in all the bags as crack cocaine, describing in some detail how it had been manufactured and the method by which it had been packaged, all in $50 bags, or “jumbos.” The judge sustained an objection to a question whether certain samples “appear [ed] consistent,” because the jury, which had all the samples before them, could judge for itself. With the jury looking at the samples, the prosecutor urged them to draw conclusions from their similarity, and the defendant’s counsel, acknowledging the similarity, argued that the evidence was equally consistent with the defendant’s being a buyer as with his being a seller. Without the bags before us, we have no basis for assuming that the jury could not properly infer from their appearance and from the expert testimony of the narcotics officers that the defendant’s thirteen bags were identical in content and packaging to those in the large cache.

In some cases a defendant’s connection to a stash of narcotic drugs has been established largely by the close similarity of the narcotic drugs in his actual possession (i.e., on his person) to the narcotic drugs in the stash. See, e.g., Commonwealth v. Brown, 12 Mass. App. Ct. 988 (1981), where the defendant was convicted of possessing marihuana with intent to distribute based on evidence that the small quantity in his variety store, with manila envelopes, was replicated in a large cache of marihuana, with identical manila envelopes, found in the home of his former wife, where the defendant was “more than a casual visitor.” 12 Mass. App. Ct. at 989. See also Commonwealth v. Pratt, 407 Mass. 647, 652 (1990). Examples from other States are numerous.⁸ The validity of such an inference depends on many circumstances, such as the distinctiveness of the packaging; and a close similarity, while it may support an inference that the personally held sample came from the stash, does not by itself establish the relation of the person holding the sample to the stash. (In this connection, the jury had a basis, as the prosecutor argued, for excluding the possibility that the defendant had come to 55 Reed Street to purchase, in light of his admission that he was staying at 55 Reed Street.)

The third strand of evidence consisted of the behavior of the defendant and his group (i.e., those on the porch) in response to the arrival of the police, behavior that was suggestive of an attempt to delay the police, to warn the occupants, and to reach the apartment, inferentially to assist in concealing or disposing of the contraband therein. Instead of dispersing, they fled towards the apartment, shouting warnings to those above, and shutting doors against the police. Because the police were so close behind them, there would have been no time to dispose of the stash, and one can surmise that the packets on the living room floor, like those discarded by the defendant in the hall and on the porch, may have represented a last-second attempt to shed packets carried on their persons. An inference could properly be drawn by the jury, however, that the defensive behavior exhibited collectively by the defendant and his group went beyond personally carried packets and was directed towards protecting the apartment that contained the stash of cocaine. Behavior of this type has played a role in many decisions that have held the defendant sufficiently linked to a stash of narcotics. See, e.g., Commonwealth v. Dinnall, 366 Mass. 165, 169 (1974) (“the defendant, seeing the invading officers, endeavored to slam the door shut”); Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) (“[t]he defendant’s retreat into the closet containing cocaine and cocaine paraphernalia allowed an inference of consciousness of guilt”); Commonwealth v. Pratt, 407 Mass. at 652 and n.7 (delay in opening door and defensive gestures as police approached contraband). Compare Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426-427 (1985), and, on the facts, Commonwealth v. Arias, 29 Mass. App. Ct. 613 (1990), further appellate review granted, 409 Mass. 1103 (1991) (defensive behavior by occupants of apartment used as a stash for narcotics).

The totality of the evidence, in the view of a majority of the court, warranted the inference that the defendant knew of the stash of cocaine in the apartment, was carrying cocaine that had come from the stash, and was a joint venturer in the crime of trafficking in cocaine. “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. Drew, 4 Mass. App. Ct. 30, 32 (1976).

As one who could be found to have assisted knowingly in a trafficking operation, the defendant was properly charged and convicted as a principal. See Commonwealth v. Pope, 397 Mass. 275, 283 (1986); Commonwealth v. Cook, 10 Mass. App. Ct. 668, 677 (1980).⁹ This was the theory on which the case was submitted to the jury, the judge having ruled that the evidence was insufficient to warrant an inference beyond a reasonable doubt, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), that the defendant was himself in possession of the cocaine in the apartment except as part of a joint venture. There is no question that one may be found guilty as an accessory to a crime that involves possession as an element. See, e.g., Commonwealth v. Alicia, 6 Mass. App. Ct. 904, 905 (1978); Commonwealth v. Ramos, post 915, 915-916 (1991). See also United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982); United States v. Carter, 721 F.2d 1514, 1533 (11th Cir. 1984); People v. Ortiz, 208 Cal. App. 2d 572, 581-582 (1962); People v. Doemer, 35 Mich. App. 149, 151-152 (1971); Annot., Offense of Aiding and Abetting Illegal Possession of Drugs or Narcotics, 47 A.L.R.3d 1239, 1241 (1973). To convict on a theory of accessorial responsibility, it is not necessary to show that the defendant himself possessed the narcotics, either actually or constructively, United States v. Raper, 676 F.2d 841, 848-852 & n.1 (D.C. Cir. 1982); United States v. Fischel, supra at 1087-1088; United States v. Wesson, 889 F.2d 134, 135 (7th Cir. 1989); United States v. Poston, 902 F.2d 90, 94 (D.C. Cir. 1990), but it is frequently said that it is necessary to show that the defendant aided in the possession and in each other element of the substantive offense. United States v. Fischel, supra at 1087. United States v. Jackson, 526 F.2d 1236, 1238 (5th Cir. 1976). United States v. Zapata-Alvarez, 911 F.2d 1025, 1026 (5th Cir. 1990). In the words of Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973), “guilt of the accessory is established when it is further shown [i.e., in addition to the commission of a crime] that he intentionally assisted the principal in the commission of the crime and that he did this, sharing with the principal the mental state required for that crime.”¹⁰

Here, we do not know the identity of the principal: i.e., the person or persons who actually or constructively possessed the large cache of cocaine. But it is obvious that someone possessed it, and it is inferable from the quantity — eighty $50 bags — that the intent of the person or persons was distribution. In these circumstances, it is not necessary that the principal or principals be identified or convicted before the person who assisted him or them in the perpetration of the principal crime may be convicted as a joint venturer or accessory. See United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982), and cases cited. “To be sure, there must be a guilty principal before there can be an aider or abettor, but here the proofs connoted plainly enough that somebody was culpable .... It was not essential that the principal in the operation be identified so long as someone held that status.” Id., quoting from United States v. Staten, 581 F.2d 878, 887 (D.C. Cir. 1978).

While the evidence was sufficient for the conviction of trafficking in cocaine, the marihuana conviction must be reversed. Nothing in the evidence connected the defendant to the bedroom where it was found. The testimony did not disclose the location of his personal papers or their nature. No marihuana was found on his person. The evidence is at least equally consistent with an inference that the marihuana operation was the separate enterprise of Angela McKenzie and the other woman who were engaged in its packaging when the police arrived. Compare the Korreckt, Davenport, and Monson decisions cited in note 8, supra.

The marihuana conviction is reversed and the verdict is set aside. The conviction of trafficking in cocaine is affirmed.

So ordered.

2 The officer who so testified, John O’Mara, acknowledged he could not see the movements of the persons who ran into the doorway ahead of the defendant James. Officer O’Mara’s inference that they “ran up into the apartment” was apparently based on James’s being the only person left in the hallway. There was no motion to strike and no further exploration of the subject. The suggestion in the dissenting opinion, at note 12, that the other people on the porch “may well have dispersed but... the transcript is silent as to where the people went,” makes the error of viewing the evidence in the light least favorable to the Commonwealth. It is axiomatic that a guilty verdict must be measured by “viewing the evidence in light most favorable to the prosecution.” Commonwealth v. Nardone, 406 Mass. 123, 129 (1989), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979).

3 “Crack” cocaine, as distinguished from ordinary cocaine (cocaine hydrochloride, or cocaine HC1), a powder usually ingested by inhalation, is cocaine that has been converted into “freebase,” a chunk or crystalline form ingested by smoking. Crack generally sells more cheaply than cocaine HC1, and it produces a shorter but more intense “high,” followed by a more intense depression, than the powdered, inhaled form. It is reported also to be more addictive. The percentage of cocaine HC1 in crack has been found to range from forty percent to ninety percent. See Note, Police Tactics, Drug Trafficking, and Gang Violence, 64 Notre Dame L. Rev. 552, 559, nn. 37 & 38 (1989); Comment, Aider and Abettor Liability, the Continuing Criminal Enterprise, and Street Gangs, 81 Crim. L. & Criminology 348, 348-349 n.5 (1990); Skolnick, A Critical Look at the National Drug Control Strategy, 8 Yale L. & Pol’y Rev. 75, 97-98 (1990); Reinarman & Levine, Crack in Context, 16 Contemp. Drug Problems 535, 539-540 (1989); Fagan & Chin, Initiation into Crack and Cocaine, 16 Contemp. Drug Probs. 579, 580, 591-593, 611 n.9 (1989); Kleiman & Saiger, Drug Legalization: Asking the Right Question, 18 Hofstra L. Rev. 527, 561-562 (1990); Loken & Kennedy, Legal Cocaine and Kids, 18 Hofstra L. Rev. 567, 570 n.19 (1990).

4 Possession with intent to distribute cocaine, G. L. c. 94C, § 32A(a), differs from “trafficking” in cocaine (G. L. c. 94C, § 32E[b])(“trafficking” is defined to include possession with intent to distribute) by the absence of a quantity element: the trafficking statute requires now (since St. 1988, c. 124) a weight of fourteen grams or more of cocaine, without regard to purity. The trafficking statute sets out escalating penalties for amounts of certain drugs in excess of specified minima: the cocaine subsection (§ 32E[b]) provides higher penalties for amounts equal to or greater than twenty-eight grams, 100 grams, and 200 grams. Under § 32E(b) as in effect in 1987, when the events related in the text occurred, twenty-eight grams was the minimum quantity to constitute trafficking.

5 The evidence implied, and the defendant in his brief states, that 55 Reed Street consists of three apartments. A police officer indicated that there were two front doors, one for the first-floor apartment, which is not involved in this case, the other opening to a common stairwell leading to the second and third-floor apartments.

6 The dissenting opinion suggests (in note 13) that there may be error in the transcript at this point, that the actual testimony may have been to the effect that no papers of the defendant were found in the apartment. The defendant has not suggested that the transcript is in error, despite the fact that the Commonwealth has argued the significance of the papers in its brief and at argument. An appellate court normally deems itself bound by the record as it receives it, Sweezey v. Mayor of Malden, 273 Mass. 536, 537 (1931); Commonwealth v. Bannister, 15 Mass. App. Ct. 71, 81 n.8 (1983), the traditional rule being that errors in the record must be corrected before argument, normally in the trial court under the procedure set forth in Mass.R.A.P. 8(e), as amended, 378 Mass. 934 (1979). Ibid.

7 Using the statutory terminology, the laboratory certificates from the Department of Public Health identified each of the cocaine samples, including the thirteen bags dropped by the defendant and the eighty bags found under the living room sofa, only as “white chunks, contained in [number] plastic bags . . . found to contain: Cocaine, a derivative of coca leaves, as defined in Chapter 94C, Controlled Substance Act, Section 31, Class B.” The statute does not distinguish between ordinary cocaine and crack cocaine. The laboratory did assay the contents of the stash, finding the cocaine to be 82.48 percent pure.

8 Out-of-State cases applying similar reasoning include: United States v. Smith, 520 F.2d 74, 76 (D.C. Cir. 1975) (marihuana in street below apartment window linked to marihuana in apartment by similar bags); United States v. Arango, 853 F.2d 818, 826 (11th Cir. 1988)(traces of cocaine on clothing linked defendants to stash); Korreckt v. State, 507 So. 2d 558, 564-566 (Ala. Crim. App. 1986)(defendant’s convictions affirmed as to cocaine found hidden in house he shared with wife and children, based on cocaine residue on a straw he carried, but reversed as to cocaine found in truck borrowed from a friend, the latter cocaine being diluted with a different cutting agent [lactose as opposed to inositol]); Blanco v. State, 515 So. 2d 115, 121 (Ala. Crim. App. 1987)(cocaine on defendant’s person diluted with same distinctive cutting agent [boric acid] as that in large cache in truck in which defendant had been a passenger); People v. MacArthur, 126 Cal. App. 2d-232, 235-237 (1954) (inference that defendant possessed heroin packaged in rubber finger stalls in his shared apartment based on evidence that defendant had earlier sold heroin packaged in rubber finger stalls to an undercover officer); People v. Monson, 255 Cal. App. 2d 689, 692-693 (1967) (defendant’s admission that she used heroin permitted inference that she was in possession of heroin, but not marihuana, found in house she shared with male friend); People v. Brownstein, 105 Ill. App. 3d 459, 465-466 (1982)(defendant’s possession of thirteen bags of cocaine warranted inference that he possessed cocaine and marihuana in room he shared with girlfriend as a bedroom and with others as a TV room); State v. Stewart, 542 S.W.2d 533, 538-539 (Mo. Ct. App. 1976) (defendant’s possession of freshly cut marihuana in house owned by others inferred from defendant’s presence therein coupled with the presence of freshly cut marihuana in the defendant’s rented van); People v. Salas, 451 S.W.2d 504, 505 (Tex. Crim. App. 1970) (marihuana in car attributed to passenger who had marihuana residue in pocket). To same effect see Duran v. People, 145 Colo. 563, 564-566 (1961). Contrast United States v. Herrera, 757 F.2d 144 (7th Cir. 1985) (heroin found in footlocker differed in purity from that carried by defendant); Ridgeway v. State, 187 Ga. App. 381, 381-382 (1988)(cocaine found on defendant’s person packaged differently from cocaine found in apartment); People v. Davenport, 39 Mich. App. 252, 254-258 (1972)(defendant’s possession of marihuana not a sufficient basis for inference that he possessed heroin found in house he shared with three others).

9 Although the defendant in Commonwealth v. Pope was indicted and convicted of being an accessory before the fact to the principal offense, it seems accepted, under G. L. c. 274, § 2, as appearing in St. 1973, c. 529, § 1, that a person indicted as a principal may be convicted on a showing of accessorial, or joint venture, involvement. See, e.g., Commonwealth v. Soares, 377 Mass. 461, 469-470, cert. denied, 444 U.S. 881 (1979); Commonwealth v. Campbell, 378 Mass. 680, 689 (1979); Commonwealth v. Whitehead, 379 Mass. 640, 650-651 (1980); Commonwealth v. Tyree, 387 Mass. 191, 208 (1982).

10 The defendant, apparently thinking of his actions when the police arrived, argues that “it is not enough for the Commonwealth to establish that the defendant was a ‘lookout.’ ” This is not correct. “It is clear that a person who acts as a lookout while others are engaged in a criminal enterprise can be convicted on a joint enterprise theory.” Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986). In any event, the defendant’s involvement here went beyond being a lookout; an inference can properly be drawn that he was himself dealing in cocaine from the stash.