NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1215
COMMONWEALTH
vs.
RICARDO CALVO, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Ricardo Calvo, Jr., was indicted on drug and
firearm-related charges, as an armed career criminal. The
defendant filed a motion to dismiss the firearm-related charges
claiming that the Commonwealth presented insufficient evidence
of probable cause to the grand jury; a Superior Court judge
(first judge) denied the motion after a nonevidentiary hearing.
The defendant also filed a motion to suppress. After an
evidentiary hearing, a second judge denied, in part, and
allowed, in part, the motion. Following a jury trial, the
defendant was convicted of possession with intent to distribute
cocaine, and possession of a firearm and ammunition without a
firearm identification card (FID).1 After a bench trial, the
1The jury found the defendant not guilty of distribution of cocaine. judge found the defendant guilty of the prior offense portion of
the charge of possession with intent to distribute cocaine, and
of being a level two, armed career criminal on the firearm and
ammunition charges.
On appeal, the defendant claims that the first judge erred
in denying his motion to dismiss, that it was error to allow
police officers to testify to the ultimate issue of whether the
defendant intended to distribute the drugs, that the evidence
was insufficient, and that the second judge erred in denying his
motion to suppress.
The Commonwealth concedes that the defendant is entitled to
a new trial on the firearm-related charges as it did not present
evidence during the trial regarding licensure. We agree and
vacate the convictions and set aside the verdicts on the charges
of possession of a firearm and ammunition without an FID card as
an armed career criminal pursuant to Commonwealth v. Guardado,
491 Mass. 666 (2023) (Guardado I), S.C., 493 Mass. 1 (2023),
petition for cert. filed, U.S. Supreme Ct. No. 23-886 (Feb. 14,
2024) (Guardado II). We affirm the remaining conviction.
1. Background. As a result of complaints about drug
activity, members of the Worcester police department
neighborhood response team set up surveillance at a four story
apartment building located at 5 King Street, an area where
police had made numerous drug, firearm, and violent crimes
2 arrests. On February 20, 2019, Sergeant Jason Gaumond saw the
defendant twice exit 5 King Street through the front door. Each
time, the defendant met with someone for a few minutes and then
reentered the building through the front door. In the early
morning hours of March 8, police saw the defendant leave the
first floor back door of 5 King Street, apartment 1-L, walk
around to the front of the building, and over to a group of four
people. The defendant spoke to the group, received money, and
dropped something on the sidewalk (that was picked up by Kenny
Liriano, who was known to police from "previous incidents").
After the defendant walked away, the police approached the
group. Officer Luis Baez spoke to Liriano, who initially
refused to open his mouth; when he eventually did open it,
Liriano's mouth was empty. No drugs were found.
A couple of hours later, police saw a gray Toyota sedan
circle around the King Street neighborhood. The driver, later
identified as Jason Fontaine, was the only occupant of the
Toyota. Fontaine parked in the area of 5 King Street as the
defendant was leaving the building; the defendant then walked by
the Toyota with a cell phone in his hand. After Fontaine got
his attention, the defendant went back to the Toyota, talked to
Fontaine through the open passenger side window, and then got in
the front passenger seat. Fontaine pulled out, and turned on to
Main Street. Police observed that Fontaine appeared to pay more
3 attention to the defendant than the road, as the defendant
appeared to be manipulating something on his lap. The defendant
handed something to Fontaine who immediately pulled over
approximately one block from where Fontaine picked him up. The
defendant, who was in the car for less than one minute, got out
and walked towards King Street, holding paper money in his hand.
Fontaine returned to King Street, and entered a store where he
purchased a small glass pipe that opened on both ends, and a
small piece of a copper Brillo pad. Police approached Fontaine,
identified themselves, looked in the Toyota, and recovered two
pieces of crack cocaine from the driver's seat. Approximately
five minutes after the defendant got out of the Toyota, he
returned to the front of 5 King Street where he was arrested. A
search of the defendant's person revealed $685 in cash, a cell
phone, and a spring assisted knife. The defendant, who had keys
for his apartment "on his chest," told police that he lived in
apartment 1-L at 5 King Street.
Police went to the apartment and spoke to Jasmine DeJesus,
the defendant's girlfriend. She eventually gave permission to
the police to search the couple's shared apartment, which
included a kitchen, master bedroom, and "kids room." In the
couple's master bedroom police found men's clothing, baseball
hats, and men's items on a bureau. In the windowsill, police
found digital scales, packaging, a gum container with ten grams
4 of cocaine "cut" in a red pouch, sandwich bags, cut corner bags,
scissors, a switchblade, a "straight shooter," rolling papers, a
Brillo pad, two glass pipes, a lighter, a spoon, and a "diaper
bag." Between the mattress and the box spring, police found an
unloaded, operable Glock 40 firearm with a magazine with bullets
next to it, and a double edged knife.
Worcester police vice squad officer Michael Ryder testified
as an expert witness in surveillance for narcotics distribution
and the modus operandi of drug dealers, buyers, and users. He
also testified about the nature of the so-called "meaningless
ride." Ryder also testified that the items recovered from the
windowsill in the master bedroom were more consistent with drug
distribution than personal use. Finally, he testified that drug
dealers often have weapons for protection, and that these
weapons are often hidden between a box spring and mattress.
2. Discussion. a. Motion to dismiss. The defendant
contends that the Commonwealth failed to present evidence to the
grand jury to establish probable cause for the firearm-related
charges, and failed to present evidence that he did not possess
an FID card. "A grand jury must hear sufficient evidence to
establish the identity of the accused . . . and probable cause
to arrest him for the crime" (quotation omitted). Commonwealth
v. Stirlacci, 483 Mass. 775, 780 (2020). "Probable cause is a
considerably less exacting standard than that required to
5 support a conviction at trial." Id. (quotation omitted). We
view the evidence heard by the grand jury in the light most
favorable to the Commonwealth. See Commonwealth v. Rakes, 478
Mass. 22, 29 (2017).
Here the Commonwealth proceeded on a theory of constructive
possession. The grand jury heard evidence that the defendant
was seen coming and going from 5 King Street, and selling crack
cocaine. They heard evidence that the defendant lived at 5 King
Street, had keys to the apartment on his person, and shared the
master bedroom where the drugs, paraphernalia, firearm, and
ammunition were located. This was sufficient to establish
probable cause of constructive possession. See Commonwealth v.
Rarick, 23 Mass. App. Ct. 912, 912 (1986) (and cases cited;
constructive possession supported by "evidence that the
contraband was found in proximity to personal effects of the
defendant in areas of the dwelling . . . to which other evidence
indicates the defendant has a particular relationship").
The defendant's argument that there was no evidence before
the grand jury that people engaged in drug distribution often
possess weapons is unavailing as such evidence is not required
to establish probable cause. The Commonwealth need only present
the grand jury "with the quantum of evidence adequate to support
probable cause, and not the greater amount of evidence necessary
6 to support a conviction." Commonwealth v. Reyes, 98 Mass. App.
Ct. 797, 802-803 (2020).
Although the defendant is entitled to a new trial on the
firearm-related charges as set forth supra, we briefly address
his claim that the grand jury heard insufficient evidence
concerning licensure. Neither Guardado I nor Guardado II
requires the Commonwealth to present evidence of licensure to
the grand jury. But here the grand jury heard evidence that the
firearm had been reported missing one year prior, the defendant
was not "registered to own a gun," and he did not have an FID
card. The motion to dismiss was properly denied.
b. Police testimony. Prior to trial, the defendant filed
a motion in limine to preclude police fact witnesses from
testifying as expert witnesses, and to limit their testimony
about why they were in the area of 5 King Street to "citizen
complaints," without specifying the type of complaint. The
judge ruled that police could testify about what they are
trained to look for and what they observed, but not about the
"final step." She also ruled that they could use the phrase
"alleged drug-related activity." The defendant contends that he
was prejudiced by the testimony of two police witnesses in
contravention of these pretrial rulings.2
2 The judge sustained all but one of defense counsel's objections, and instructed the jury to disregard the evidence
7 Officer Alexander Maracallo testified that the police
surveillance was related to "possible drug dealing." He also
testified that he "was to conduct surveillance in a particular
area and suspect." The judge struck the first answer and the
term "suspect" from the second answer. Even assuming that the
words "dealing" and "suspect" contravened the judge's ruling and
were properly stricken, we presume the jury followed the judge's
instruction to disregard Maracallo's answer. See Commonwealth
v. Williams, 450 Mass. 645, 651 (2008).
The defendant next contends that Gaumond's use of the term
"drug area," which the judge struck, prejudiced him. Even if
this term violated the judge's pretrial rulings, the
Commonwealth contends, and we agree, that evidence that an area
is known for drug activity is generally admissible and that the
defendant in any event opened the door to this testimony when
defense counsel asked Maracallo if the area was a high crime
area where he had made arrests for drug possession and
distribution, crimes of violence, and firearm possession in the
past. Again, to the extent that the judge struck portions of
that she struck. Defense counsel assisted in crafting the instruction, did not object to the instruction, and did not move for a mistrial. The defendant contends this claim of error was preserved, while the Commonwealth argues that it was not. However, under either standard of review, the result is the same.
8 that testimony, the defendant received more than he was entitled
to. See Commonwealth v. Cassidy, 470 Mass. 201, 224 (2014). At
worst, the testimony was cumulative of other evidence. See
Commonwealth v. Best, 50 Mass. App. Ct. 722, 727 (2001).
Next, the defendant challenges Maracallo's testimony that
he told Fontaine that he would be charged with drug possession.
The judge instructed the jury that Maracallo was not testifying
as an expert witness, and therefore whether a suspected narcotic
was for personal use or distribution was a jury question.
Contrary to the defendant's claim, this testimony was not
inadmissible opinion evidence that Fontaine was a "buyer." It
was evidence that Fontaine was found in possession of crack
cocaine. Contrast Commonwealth v. Rodriguez, 456 Mass. 578, 592
(2010) (police testimony that they arrested "buyer" inadmissible
opinion evidence). The defendant also claims that Gaumond's
testimony that he was familiar with the defendant's clothing was
inadmissible opinion evidence. We disagree. This testimony was
based on Gaumond's direct observations of the defendant and his
identity, nothing more.
Finally, the defendant claims error in Maracallo's
testimony that based on his training and experience, Fontaine
purchased "drug paraphernalia,"3 and, during cross-examination,
3Maracallo testified that Fontaine "bought a small cylinder. They usually comes in [sic] a rose, there's a rose
9 when he testified that "we work as a unit. So my job was to
follow the buyer -- I'm sorry -- the vehicle." The judge struck
a portion of each answer and gave an instruction to the jury
(that defense counsel assisted with and did not object to) that
Maracallo was testifying as a fact witness, and not an expert
witness. See Commonwealth v. Amran, 471 Mass. 354, 360 (2015)
(no prejudice where curative instruction deemed sufficient by
defense counsel). The jury "are presumed to follow a judge's
instructions, including instructions to disregard certain
testimony." Williams, 450 Mass. at 651. Here the jury's
acquittal on the distribution charge is evidence that they were
able to disregard excluded testimony. See Commonwealth v.
Bourgeois, 68 Mass. App. Ct. 433, 438 (2007).
c. Sufficiency of the evidence. The defendant contends
the evidence was insufficient to convict him of any of the
charges. The "question is 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 Jackson v. Virginia, 443 U.S.
307, 319 (1979). "[C]ircumstantial evidence is competent to
establish guilt beyond a reasonable doubt." Commonwealth v.
that comes in it, but drug addicts, they usually take the rose out."
10 Bush, 427 Mass. 26, 30 (1998). See Commonwealth v. Casale, 381
Mass. 167, 173 (1980) ("inferences drawn by the jury need only
be reasonable and possible and need not be necessary or
inescapable").
i. Drug charges. To prove the crime of possession with
intent to distribute, the Commonwealth must prove, beyond a
reasonable doubt, that the defendant "(1) knowingly possess[ed]
[cocaine] and (2) intend[ed] to transfer it physically to
another person." Commonwealth v. Tavernier, 76 Mass. App. Ct.
351, 355 (2010). The defendant only contests the element of
possession. To establish constructive possession, the
Commonwealth must prove that the defendant had knowledge of the
items and the ability and intention to exercise dominion and
control over them. See Commonwealth v. Hubbard, 69 Mass. App.
Ct. 232, 237 (2007). "Although mere presence where drugs are
discovered is not enough to support an inference of possession
of the drugs, the defendant's presence, coupled with a 'plus
factor,' i.e., other incriminating evidence, may suffice."
Commonwealth v. Ortega, 441 Mass. 170, 174 (2004) (quotation
omitted).
Here, police observed the defendant coming and going from
the apartment, where the defendant admitted he lived. See
Ortega, 441 Mass. at 174-175. The contraband was found in the
master bedroom, which the defendant shared with his girlfriend.
11 "Residential status . . . is a relevant inculpatory factor to be
considered . . . since it indicates more than mere presence."
Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991)
(quotation omitted). Additionally, keys that opened the front
and back doors of the apartment were found on the defendant's
person. See Commonwealth v. Delarosa, 50 Mass. App. Ct. 623,
627 (2000) (possession of keys to apartment connected defendant
to apartment where contraband found). The master bedroom
contained men's clothing and men's items. The only other
bedroom in the apartment had children's items. From this the
jury could infer that the defendant shared the master bedroom
with his girlfriend. See Commonwealth v. Rivera, 31 Mass. App.
Ct. 554, 556-557 (1991) (evidence showed connection to bedroom
in apartment and no connection to other bedroom). That there
were no documents with the defendant's name on them or
photographs of him in the apartment is of no moment. Such items
are not necessary to link the defendant to the master bedroom.
In addition, police observations of the defendant's
behavior before the arrest, as set forth supra, was consistent
with the sale of drugs, and the contraband on the windowsill in
the master bedroom suggested that the drugs' owner was selling
them. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 831
(2018) (constructive possession may be proved by linking
defendant to area in home where contraband is found). This
12 evidence, coupled with Ryder's expert witness testimony,
permitted the jury to infer that the defendant left his
apartment with the drugs and returned there to obtain more drugs
to sell. This conclusion is buttressed by the discovery of $685
in cash on the defendant's person when he was arrested outside
of his apartment building. See Commonwealth v. Montalvo, 76
Mass. App. Ct. 319, 324-325 (2010).
ii. Firearm-related charges. Although, as discussed
above, we are vacating the defendant's convictions on the
firearm-related charges pursuant to the Guardado decisions, we
comment on the sufficiency of the evidence to determine whether
he can be retried. For the reasons set forth supra, the
evidence likewise established that the defendant constructively
possessed the firearm and ammunition located in between the
mattress and box spring in the master bedroom. The jury also
heard expert testimony from Ryder that drug dealers possess
weapons to protect themselves, their money and contraband, and
that these weapons are often concealed between a box spring and
mattress. From this the jury could infer that the defendant had
knowledge of and intended to exercise dominion and control over
the firearm and ammunition located underneath the mattress in
the master bedroom where he slept. See Hubbard, 69 Mass. App.
Ct. at 237.
13 d. Consent to search. The defendant claims that the judge
erred in denying his motion to suppress because DeJesus did not
consent to the search of the apartment. The second judge ruled
that DeJesus freely and voluntarily consented to the search of
the apartment based on the following findings. "DeJesus
[either] affirmatively responded to [the police] request to
enter [the apartment} or [she] only stepped back, allowing
[their] entry." See Commonwealth v. Rogers, 444 Mass. 234, 240
(2005) (occupant's gesture or stepping aside from threshold in
response to request from police amounts to consent to enter).
About an hour later, "DeJesus, the lessee of the apartment, said
she had something to show police. Before allowing her to do so,
police had DeJesus sign a written consent form permitting
officers to search the apartment." Because DeJesus consented to
the search, it was lawful.
To the extent that the defendant challenges the judge's
finding of the voluntariness of DeJesus's consent, this is a
question of fact, and we defer to the judge's findings which are
not clearly erroneous. See Commonwealth v. Soto-Suazo, 100
Mass. App. Ct. 460, 467 (2021). Although DeJesus initially
refused to allow the police to search the apartment, she later
changed her mind and gave her consent. This is evidence that
DeJesus understood her right to refuse to consent to the search.
While being videotaped, DeJesus signed a consent to search form,
14 and led police to the windowsill where the contraband was
located. This is further evidence of DeJesus's free and
voluntary consent. See id. at 468. Although police told
DeJesus that they did not want to execute a search warrant when
her children returned from school (in order to not traumatize
them) -- and while in some circumstances such a statement might
support an inference that the police were attempting to obtain
consent by frightening a resident about the effects on her
children of not doing so -- the judge's finding that this did
not establish coercion was adequately supported, as was his
conclusion that it did not negate the voluntariness of DeJesus's
consent.
3. Conclusion. The judgments of conviction of possession
of a firearm and possession of ammunition without an FID card
are vacated and the verdicts are set aside, with the
Commonwealth remaining free to retry the defendant if it so
chooses. See Guardado II, 493 Mass. at 12. The judgment of
15 conviction on the charge of possession with intent to distribute
cocaine is affirmed.
So ordered.
By the Court (Rubin, Blake & Shin, JJ.4),
Assistant Clerk
Entered: April 4, 2024.
4 The panelists are listed in order of seniority.