Commonwealth v. Cullity (Lawyers Weekly No. 10-029-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11728 COMMONWEALTH vs. TIMOTHY CULLITY. February 24, 2015. Controlled Substances. Evidence, Constructive possession. Motor Vehicle. Search and Seizure, Threshold police inquiry, Motor vehicle. Threshold Police Inquiry. After a jury-waived trial in the District Court, Timothy Cullity was convicted of possession of a class B substance, namely, “PCP.” A panel of the Appeals Court concluded that the evidence at trial was insufficient to establish constructive possession and, in an unpublished decision pursuant to its rule 1:28, reversed and directed the entry of judgment for Cullity.[1] Commonwealth v. Cullity, 85 Mass. App. Ct. 1121 (2014). We allowed the Commonwealth’s application for further appellate review, limited to issues concerning the sufficiency of the evidence.[2] 469 Mass. 1106 (2014). We affirm. “In reviewing the sufficiency of the evidence, we determine ‘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’” (emphasis in original). Commonwealth v. Romero, 464 Mass. 648, 652 (2013), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). “Proof of constructive possession requires the Commonwealth to show ‘knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting Commonwealth v. Boria, 440 Mass. 416, 418 (2003). At issue here is the sufficiency of the evidence that Cullity intended to exercise dominion and control over a bag of PCP found in a vehicle in which he was a passenger.[3] The evidence at trial established the following. The sole witness was State Trooper Nicholas Peter Fiore. At about 7 P.M. on November 5, 2010, Fiore saw a motor vehicle with a broken headlight in Chelsea. He stopped the vehicle, approached the driver’s side door, and began speaking with the driver. He immediately detected a “very strong odor of something that appeared to be . . . a freshly burnt substance” emanating from the vehicle. Fiore requested the driver’s license and registration; she eventually produced her license. He also asked her about the odor, but she did not respond. Cullity was in the front passenger’s seat of the vehicle, without his seatbelt. Fiore observed that he had watery, bloodshot eyes and that he appeared lethargic. Fiore had to request Cullity’s identification three times […]