Posts tagged "1104413"

Commonwealth v. Hamilton (Lawyers Weekly No. 11-044-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;       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 […]


Posted by Massachusetts Legal Resources - March 13, 2013 at 5:56 pm

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