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11‑P‑1568                                       Appeals Court

COMMONWEALTH  vs.  DEANNE J. HAMILTON.

No. 11‑P‑1568.

Plymouth.     December 5, 2012.  ‑  March 13, 2013.

Present:  Kafker, Milkey, & Agnes, JJ.

Controlled Substances.  Evidence, Constructive possession, Expert opinion.  Practice, Criminal, Motion for a required finding, Indictment, Motion to suppress.  Search and Seizure, Warrant, Affidavit.  Witness, Expert.

Indictments found and returned in the Superior Court Department on February 1, 2008.

A motion to dismiss and a pretrial motion to suppress evidence were heard by Jeffrey A. Locke, J.; the cases were tried before Barbara A. Dortch‑Okara, J., and a motion to set aside the verdict and enter a finding of not guilty was heard by her.

Jessica L. Healy, Assistant District Attorney, for the Commonwealth.

Kathleen M. O’Connell for the defendant.

KAFKER, J.  A judge of the Superior Court set aside jury verdicts on various drug offenses as well as a subsequent offender finding, concluding that there was insufficient evidence that the defendant constructively possessed the cocaine found in her apartment.  On the Commonwealth’s appeal, we conclude that the evidence was sufficient to establish constructive possession.  None of the other issues raised by the defendant in her cross appeal warrants disturbing the jury verdicts and finding.  We therefore reverse the judge’s order and reinstate the jury verdicts, the subsequent offender finding, and the judgments.

1.  Background.  On February 1, 2008, the defendant was indicted for possession of cocaine with intent to distribute, second or subsequent offense, in violation of G. L. c. 94C, § 32A(c) and (d), and for doing so in a school zone, in violation of G. L. c. 94C, § 32J.  She made a motion to suppress evidence, not currently before this court, which was denied.  After obtaining new counsel, she moved to dismiss the indictment based on purportedly prejudicial evidence presented to the grand jury, and moved to suppress evidence for violation of the search warrant particularity requirement.  Both motions were denied.  After the jury returned guilty verdicts,^[1] the defendant renewed her motion for a required finding of not guilty pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), and the trial judge allowed the motion and ordered the entry of not guilty findings, relying chiefly on Commonwealth v. Boria, 440 Mass. 416 (2003) (Boria), and Commonwealth v. Brown, 34 Mass. App. Ct. 222 (1993) (Brown).  The Commonwealth appealed pursuant to Mass.R.Crim.P. 25(c)(1), and the defendant cross-appealed.

We summarize the evidence at trial in the light most favorable to the Commonwealth.  See Commonwealth v. Escalera, 462 Mass. 636, 649 (2012), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).  On December 11, 2007, at approximately 10:00 P.M., officers from the Brockton police department and the State police executed a search warrant for an apartment on the third floor of 109 Green Street in Brockton.  The officers knocked and announced themselves, and after five or ten seconds State Trooper Erik Telford forced the door open with a battering ram.  Inside, the officers found the defendant on the living room couch and her codefendant, David Nelson,^[2] also near the couch.  The defendant was wearing only a T-shirt and underwear at the time; Nelson did not have a shirt on.  The defendant requested clothing, and an officer brought her clothing from the bedroom.  Both defendants were secured outside the apartment during the search.

The apartment was very small, consisting of a living room with a closet and kitchenette, a small hallway, one small bedroom, and a bathroom.  The living room was approximately eight feet by twelve feet.  In the living room was a couch, a coffee table about three feet long, a chair, an end table, and a television.  The bedroom was smaller than the living room and contained a bed, a dresser, and plastic shelving.  The apartment was cluttered, with trash and clothing, and in disarray.

Brockton police Detective Robert Diliddo found and seized two cellular telephones (phones) and a digital scale on the coffee table.^[3]  The scale is small and resembles a compact disk (CD) when closed, as it was when Diliddo found it.  One of the phones contained a photograph of Nelson.  Subsequently, Brockton police Lieutenant (then-Sergeant) Kevin O’Connell discovered on the coffee table seven individually wrapped pieces of what he believed to be “crack” cocaine.  This substance later tested positive for cocaine and weighed approximately 3.3 grams.  There was testimony that the smaller pieces of crack cocaine would sell for twenty dollars, and the largest as much as fifty or eighty dollars.

Officers also seized $ 110 in cash, in smaller denomination bills, from the bedroom; a box of Glad plastic bags from the end table in the living room; and a BB gun from the living room closet.  Telford observed women’s clothing, women’s perfume, and women’s lotions in the bedroom, but did not observe any men’s clothing there.  At booking, both the defendant and Nelson gave 109 Green Street, apartment 3, as their address.^[4]

Brockton police Detective Thomas Keating testified as an expert for the Commonwealth, over the defendant’s objection.  He testified that crack cocaine is frequently packaged in sandwich bags.  Keating also testified that money found along with crack cocaine is indicative of drug distribution and may be the proceeds from drug sales.  He found the discovery of a scale significant, stating, “I never saw an addict buy crack cocaine and weigh it unless they’re buying it to sell it.”

Neither codefendant testified.  The defendant’s counsel argued chiefly that the drugs were not hers; Nelson’s defense was personal use.

2.  Commonwealth’s appeal.  a.  Standard of review.  The defendant asserts that we should defer to the trial judge’s ruling and review the trial judge’s allowance of the rule 25(b)(2) motion for abuse of discretion, citing Commonwealth v. Cobb, 399 Mass. 191, 192 (1987), and Commonwealth v. Woodward, 427 Mass. 659, 668 (1998).  She misunderstands the context of Cobb and Woodward.

A rule 25(b)(2) motion may seek any or all of three forms of relief:  a new trial, a finding of not guilty, or a reduction of the verdict to a lesser included offense.  See Commonwealth v. Keough, 385 Mass. 314, 317-318 (1982).^[5]  The standard for a new trial is akin to that under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).  “A judge has similar broad discretion to grant a new trial in the interests of justice under both rules.”  Commonwealth v. Pring-Wilson, 448 Mass. 718, 732 n.14 (2007).  Likewise, a judge asked to reduce a verdict has the discretion to consider the weight of the evidence to reach the result the judge believes most consonant with justice.  See Commonwealth v. Almeida, 452 Mass. 601, 613-614 (2008), and cases cited.  Both of these forms of relief are discretionary, and we would review for abuse of discretion, with particular deference to the trial judge’s familiarity with the proceedings and credibility judgments.  See Commonwealth v. Preston, 393 Mass. 318, 324 (1984); Commonwealth v. Cornish, 28 Mass. App. Ct. 173, 177 (1989); Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 93 (2007).

However, a motion seeking a finding of not guilty due to insufficient evidence stands on different footing.  The sufficiency of the evidence is a question of law because the judge must take the evidence in the light most favorable to the Commonwealth rather than weighing it independently.  See Commonwealth v. Torres, 24 Mass. App. Ct. 317, 321-324 (1987); Commonwealth v. Walker, 68 Mass. App. Ct. 194, 197-198 (2007).  See also Smith, Criminal Practice & Procedure § 36.21 (3d ed. 2007).  Therefore, “the judge does not properly exercise discretion concerning the weight or integrity of the evidence, but instead must assess the legal sufficiency of the evidence by the standard set out in Commonwealth v. Latimore, 378 Mass. [at] 677.”  Commonwealth v. Doucette, 408 Mass. 454, 456 (1990).  We thus determine the legal question of sufficiency without deference to the trial judge’s ruling.  See ibid.

b.  Sufficiency of the evidence.  As the cocaine was not found on the defendant’s person, she was tried on a theory of constructive possession.^[6]  The Commonwealth therefore was required to prove the defendant’s knowledge of the cocaine, and her ability and intent to exercise dominion and control over it.  See Boria, 440 Mass at 418; Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008).  “Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom.”  Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).  However, mere presence in proximity to contraband, or even “[l]iving in a place where drugs are in plain view and being sold,” is insufficient to establish constructive possession.  Boria, 440 Mass. at 418.  See Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 300 (2012) (“That a defendant provides as [her] address the place where contraband is found does not alone provide an ability and intent to control the contraband”).  Rather, “[o]ther incriminating evidence” is necessary to “tip the scale in favor of sufficiency.”  Commonwealth v. Brzezinski, supra at 410, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977).  A “particular link” of the defendant to the contraband, or at least to the area where the contraband is found, must be established.  Boria, 440 Mass. at 420.  See Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 913 (1986) (drugs and paraphernalia found in bedroom with defendant’s belongings);  Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 505-506 (1998) (defendant’s clothes and documents found in bedroom with contraband).

     In this case, the jury could reasonably infer the defendant’s awareness of the cocaine and ability and intent to exercise dominion and control over it.  In the light most favorable to the Commonwealth, the evidence supported an inference of the defendant’s awareness of the cocaine.  The cocaine was found on a table right in front of her.  Although the table was cluttered, the cocaine was not concealed.  See Boria, 440 Mass. at 417, 421 (presence where contraband was found permitted reasonable inference of awareness even where drugs were hidden); Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323-326 (2010).  The apartment was also very small.  See Commonwealth v. Pratt, 407 Mass. 647, 651-652 (1990) (drugs and paraphernalia in plain view in one-room cottage).  Contrast Boria, 440 Mass. at 420 n.5 (no evidence of size or layout of apartment).  As explained more fully below, the defendant was also a resident and not merely present in the apartment.  See Commonwealth v. Charlton, 81 Mass. App. Ct. at 302-303, quoting from Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991) (“A defendant’s ‘residential status at a premises is a relevant inculpatory factor to be considered . . . , since it indicates “more than mere presence”‘”).

The more difficult issue, then, is whether there was sufficient evidence of the defendant’s ability and intent to exercise dominion and control over the cocaine.  As stated earlier, the cocaine was located on the table in front of her when officers entered the apartment.  We also consider it significant that the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to establish that  the defendant was the primary occupant of the apartment.  See Brown, 34 Mass. App. Ct. at 225, 227 (“there was obviously sufficient evidence” to convict codefendant Howard of possession of cocaine with intent to distribute because “[t]he apartment was Howard’s place; it was full of his personal papers,” and he was “the person who controlled the apartment”).  Cf. Commonwealth v. Charlton, supra at 303.  The defendant here gave the apartment as her address at booking.  See id. at 302-303.  She was there at a late hour of the night in a state of undress.  See Commonwealth v. Rodriquez, 16 Mass. App. Ct. 944, 945-946 (1983).  Cf. Commonwealth v. Arias, 29 Mass. App. Ct. 613, 615, 619 (1990), S.C., 410 Mass. 1005 (1991).  The sole bedroom contained only women’s items, and the police retrieved clothing for her from it, giving rise to a reasonable inference that it was hers.  See Commonwealth v. Rarick, 23 Mass. App. Ct. at 913; Commonwealth v. Clarke, 44 Mass. App. Ct. at 505-506.

Finally, there was no evidence establishing that another person in the apartment, rather than the defendant, was the person controlling the apartment or the contraband and its proceeds.^[7]  In contrast, in Boria and especially in Brown, the evidence strongly pointed to other codefendants as responsible for the drugs.^[8]  In Brown, one codefendant (Howard) was the primary occupant and another (Mikell) was found with cash and cocaine on her person, apparently attempting to dispose of other drugs.  Brown, 34 Mass. App. Ct. at 225.  In Boria, one of the codefendants had over $ 1,200 in cash on him.  Boria, 440 Mass. at 417 n.3.^[9]  The only cash found here was the $ 110 located in the bedroom belonging to the defendant.  See Commonwealth v. Rarick, 23 Mass. App. Ct. at 913.  Although this is not an unusually large amount of cash, the jury could have inferred that it constituted the proceeds of drug sales, in light of the expert testimony as well as other evidence concerning the value of the seized drugs.  See Commonwealth v. Arias, 29 Mass. App. Ct. at 619 n.10.  In sum, the evidence here sufficed to establish knowledge as well as ability and intent to exercise dominion and control over the cocaine.  See Commonwealth v. Alcantara, 53 Mass. App. Ct. 591, 596-597 (2002).

As for intent to distribute, there was sufficient evidence based on the quantity of the cocaine, the expert testimony regarding the differences between distributors and users of cocaine, and the presence of plastic bags, a cellular phone, a BB gun, and most particularly, a digital scale.  We therefore reverse the order entering findings of not guilty.

3.  Defendant’s cross appeal.  The defendant raises several issues that she urges are grounds to reverse her convictions if the evidence was sufficient to sustain them.  We take them in turn.

a.  Motion to dismiss.  The defendant moved to dismiss the indictment on the basis that improper evidence was presented to the grand jury.  See generally Commonwealth v. O’Dell, 392 Mass. 445 (1984).  Specifically, Diliddo testified at the grand jury that the police were investigating drug sales at 109 Green Street, apartment 3, and that Telford had a confidential informant who knew that the defendant and Nelson were selling drugs at that apartment.  The defendant contends that this information constituted prior bad acts and that it was irrelevant because she was not charged with distribution of drugs, only possession with intent to distribute.  See Commonwealth v. Vinnie, 428 Mass. 161, 174-175, cert. denied, 525 U.S. 1007 (1998).  However, this limited testimony was probative of the defendant’s intent to distribute, and the defendant has not shown that it was either false or misleading.  See Commonwealth v. Brien, 19 Mass. App. Ct. 914, 914 (1984); Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 299 (2012).  Cf. Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986).  Seeking an indictment for possession with intent to distribute rather than distribution was within “the discretion of the prosecuting authority to decide what charge the government will bring.”  Commonwealth v. Rose, 54 Mass. App. Ct. 919, 919 (2002).  Cf. Commonwealth v. Gordon, 410 Mass. 498, 500-501 (1991).  The motion to dismiss was properly denied.

b.  Motion to suppress.  The defendant argues that her motion to suppress based on the warrant particularity requirement should have been allowed.  See generally Commonwealth v. Balicki, 436 Mass. 1, 7-8 (2002); G. L. c. 276, § 2.  When he applied for the search warrant, Diliddo believed that there were three apartments at 109 Green Street, and therefore sought and secured a warrant for “109 Green St, Brockton Ma, third floor apartment.”  In fact, there were nine apartments in that building, three on each floor.  The warrant could therefore have been read as permitting a search of any of three apartments.

However, Diliddo’s affidavit supporting the warrant included information by an informant that the third-floor apartment was accessed via the side door adjacent to the fire escape, and was at the top of the stairs, “right in front of you with a yellow sign on the front door that reads something to the effect of ‘Private/Keep Out.’”  The officers executing the warrant found the defendant’s apartment as described, and entered and searched the correct apartment.  The case is analogous to Commonwealth v. Todisco, 363 Mass. 445 (1973), where a warrant could have referred to any of three apartments in a building, but the affidavit sufficiently identified the apartment to be searched.  Id. at 448-450.  There, as here, the affiant was involved in the execution of the warrant and located the defendant’s apartment and no other.  See id. at 449.  Under the circumstances, we discern no error in the denial of the motion to suppress.  See Commonwealth v. Toledo, 66 Mass. App. Ct. 688, 696-697 (2006).^[10]

c.  “Knock and announce” rule.  After Telford testified at trial that he had waited five or ten seconds between announcing his presence and forcing the door open, the defendant made an objection based on the “knock and announce” rule, and now argues that suppression of the fruits of the search was warranted on this basis.  See generally Commonwealth v. Santiago, 452 Mass. 573, 574-575 (2008).  The defendant did not file a timely motion to suppress, and indeed never filed a motion to suppress on this basis.  See Mass.R.Crim.P. 13(a), (d), as appearing in 442 Mass. 1517 (2004).  She requested no specific relief from the trial judge.^[11]  Even treating the objection as a motion to suppress, it was within the judge’s discretion to decline to entertain it in the middle of trial.  See Commonwealth v. Pope, 15 Mass. App. Ct. 505, 507 (1983).  See also Smith, Criminal Practice & Procedure § 24.23, at 359.  Moreover, we have upheld a five-second delay for a narcotics search warrant where the police have information that occupants may have guns.  See Commonwealth v. Bush, 71 Mass. App. Ct. 130, 132-135 & n.8 (2008).  Here, an informant had told Telford that, within a day prior to the search, Nelson had loaded a firearm and threatened to make someone “disappear,” and probation records indicated that Nelson had been convicted of two prior weapons offenses.^[12]  In light of this information and prior controlled purchases indicating drug distribution, “it was reasonable for the police to fear a threat to their safety within five seconds.”  Id. at 135.

d.  Expert testimony.  Finally, the defendant argues that the trial judge erred in permitting Keating to testify beyond his expertise and vouch for his own credibility.  The defendant filed a motion in limine to prevent Keating from testifying “that a theoretical drug ‘buyer’ would not purchase multiple bags of cocaine and instead purchase said substances in bulk,” relying on Commonwealth v. Little, 453 Mass. 766 (2009), which criticized an “imprecise economic argument” made by Keating as “likely beyond his expertise as a narcotics investigator.”  Id. at 771.  The trial judge allowed the motion to the extent that Keating’s testimony related to the behavior of hypothetical buyers rather than his own experiences and observations, but indicated she could not completely address the issue in the abstract.  However, although the defendant objected to Keating’s qualification as an expert (which she does not contest on appeal), she did not object to any of the specific statements that she now challenges, and so we review Keating’s testimony for error creating a substantial risk of a miscarriage of justice.  See id. at 770.

Keating testified that crack addicts usually do not keep money on their persons because they would spend it on more cocaine, and so the recovery of money suggests that it could be the proceeds from drug sales.  He also testified that addicts would likely have drug paraphernalia around because they would consume the cocaine as soon as they got it, and he had never seen an addict weigh crack cocaine unless they were going to sell part of it.  These statements were not objected to, and are not obviously beyond Keating’s experience and expertise.^[13]  See id. at 770-771.  To the extent Keating made “economic” arguments of the type at issue in Little, they were largely elicited in response to defense counsel’s questions about the behavior of a hypothetical crack addict and were not objected to.^[14]  See Commonwealth v. DeCastro, 24 Mass. App. Ct. 937, 938 (1987).  This evidence was also primarily relevant to the question of intent to distribute, whereas the defendant’s defense was lack of possession.  Cf. Commonwealth v. Springer, 49 Mass. App. Ct. 469, 480 (2000).  There was no substantial risk of a miscarriage of justice from this testimony.

Finally, the defendant calls attention to a portion of Keating’s testimony where he described how prosecutors seek his opinion whether he would be prepared to take the stand to testify whether the drugs were for distribution or personal use, and that he would give them his opinion.  Keating stated that if he opines that personal use is more likely, the prosecutor typically does not proceed with charges based on intent to distribute.  He further indicated that he has only testified that a situation is not indicative of distribution five to ten times out of hundreds of times testifying as an expert in court.  The defendant asserts that by this testimony, Keating was improperly vouching for his own credibility.  Cf. Commonwealth v. Burgess, 450 Mass. 422, 436 (2008), quoting from Simon v. Solomon, 385 Mass. 91, 105 (1982).  Although generally not an appropriate line of inquiry, in this instant case it was a fair response to Nelson’s pointed attack on Keating’s credibility as “the ultimate hired gun” trying to help out his colleagues, which Nelson’s counsel made during his opening and reinforced during his cross-examination.  Cf. Commonwealth v. Ortega, 441 Mass. 170, 180 n.17 (2004); Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509 (2009).  In his opening, for example, defense counsel for Nelson stated that Keating has a “percentage . . . that . . . [Dustin] Pedroia and the Red Sox would die for.  Almost a thousand percent saying things are consistent with distribution.”  The defendant did not object to Nelson’s cross-examination, which elicited the same information.  We discern no abuse of discretion under these circumstances in admitting this testimony.