Com. v. Montalvo

922 N.E.2d 155

76 Mass. App. Ct. 319

COMMONWEALTH v. Angel MONTALVO.

No. 08-P-1159.

Appeals Court of Massachusetts, Hampden.

Argued September 10, 2009.

Decided February 25, 2010.

Patricia Quintilian for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, BROWN, & WOLOHOJIAN, JJ.

KATZMANN, J.

After a jury trial in Superior Court, Angel Montalvo (defendant) was convicted of possession of cocaine with intent to distribute, in violation of G.L. c. 94C, § 32A(c) and (d) (second offender), and possession of heroin with intent to distribute, in violation of G.L. c. 94C, § 32A(b) (second offender). He now appeals. While the evidence was sufficient to establish constructive possession of cocaine (but not of heroin), it did not support the element of intent to distribute. Moreover the evidence did not support the defendant's conviction as a joint venturer.

Background. In January of 2007, after receiving complaints of drug activity, the Springfield police department began an investigation of suspected drug dealing at an apartment building located at 143 Belmont Avenue in Springfield, focusing on apartment 3R. Surveillance was established, revealing a high level of foot and car traffic in and around the address. Many people were observed entering and leaving the building, sometimes not staying for more than a few minutes. Additionally, an informant was used by the police to make two controlled purchases of unspecified quantities of heroin from the apartment. With respect to one of those transactions, Officer Bigda testified that the informant was in the apartment for less than two minutes. The informant was debriefed by the police after he made the purchases, and as a result of the information he provided, they drafted a "no-knock" search warrant, describing the subjects who were believed to be inside the apartment on the evening of the purchase. During his surveillance of apartment 3R, Officer Bigda observed that the subjects had a lookout who could give them warning of police arrival. He also observed that many people loitered in the area of the building in which apartment 3R was located, leaving and crossing to a bodega (a convenience store), where small purchases of crackers and chips were made, and then returning to the building.

On January 11, 2007, the police, armed with the no-knock search warrant, went to apartment 3R to search for illegal drugs. Upon arrival at the premises, the police organized their entry in two squads: one was placed in the front of the building, and the other in the rear; also, one police officer was assigned to stand below the window area.

The police entered apartment 3R through the rear part of the apartment. This entry proved difficult since the occupants had barricaded the rear entrance by adding large sliding deadbolt-type locks to the top and bottom of the door, which were drilled into the door casings. The police thought that they recognized these locks as "New York"-style locks (where two L-brackets are screwed into the door frames, and a wooden two-by-four is slid into the brackets so that the door cannot be forced in). The purpose of these fortifications is to prevent entry by the police or by rival drug dealers who might commit robbery. The officers needed to strike eighteen to twenty blows with a sixty-pound battering ram in order to break down the rear door. Upon entering the apartment's kitchen and proceeding down a long hallway, police officers observed five people crowded near the front door, which was also barricaded from within. By removing the two-by-four laid across the door, the five people were able to get the door open and leave the apartment. Officer Kent pursued these individuals,¹ and Officers Wadlegger and Bigda proceeded with searching the rest of the apartment.

Upon entering the apartment, Officer Bigda observed that the rooms were sparsely furnished and that the apartment did not appear to be inhabited in a traditional sense. There was little in the way of clothing, food, or personal items, and it did not seem as though people actually lived in the apartment.

Officer Wadlegger went into the middle bedroom, where he found the defendant and two other individuals, Santos Ramos (a "ringleader" and the target of investigation) and Armando Revilla. The officer testified that when he entered the bedroom, the defendant, who was wearing a T-shirt (in January), and Revilla "were standing up, just—just kind of like in a startled, didn't know—just standing there." Officer Wadlegger also observed Ramos throw a bag out the window. The bag was later found to contain fifteen bags of "crack" cocaine totaling 3.45 grams (or one-eighth ounce), known as an "eight-ball," a common unit of measure in the cocaine trade. Eight balls are typically broken down for resale, and each of the fifteen bags (.23 grams) sold for twenty dollars on the street. In the middle bedroom, Officer Bigda saw a small safe in a closet, which was later determined to contain seventy-two bags of heroin and $427. The defendant was standing five or six feet away from the safe when the first police officer entered. On the night stand in the middle bedroom, the officers retrieved a glass plate, three bags containing a white powder that tested negative for cocaine, and several empty bags with white powder residue.² The middle bedroom was the only room in the apartment where the police found contraband. They did not recover from the apartment any paraphernalia associated with the use or consumption of either cocaine or heroin. In a search of the defendant's person, the police did not find any paraphernalia or drugs; they found thirty dollars in his possession. No personal papers were recovered in a search of the apartment that would indicate the occupant of the apartment.

Officer Bigda, experienced in narcotics investigations, explained that the drug operation at the premises was "multi-person," meaning that it involved services of more than one drug dealer. The apartment, where the drug operation took place, was of the type commonly known as "hustle houses" or "hot houses," and typically, drug transactions take place at such houses. At such houses, people sell narcotics and also buy narcotics; they may also use narcotics on the premises. Typical of such operations, apartment 3R was heavily barricaded, and fortified with a "New York"-style lock.

Discussion. Sufficiency of evidence. The defendant asserts that there was insufficient evidence to sustain the two convictions. In addressing the defendant's arguments, we must 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." Commonwealth v. Gonzalez, 452 Mass. 142, 146, 892 N.E.2d 255 (2008), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). See Commonwealth v. Murphy, 31 Mass.App.Ct. 901, 901, 574 N.E.2d 412 (1991). "In cases in which the evidence is largely circumstantial, `it is not essential that the inferences drawn should be the only necessary inferences. . . . It is enough that [the inferences] be reasonable and possible.'" Commonwealth v. Martino, 412 Mass. 267, 272, 588 N.E.2d 651 (1992), quoting from Commonwealth v. Merrick, 255 Mass. 510, 514, 152 N.E. 377 (1926). With respect to the two counts of conviction, we consider the sufficiency question in terms of the component elements for possession with intent to distribute: first, possession, and then, intent to distribute.

1. Constructive possession. As there was no evidence that the defendant actually possessed the seized cocaine and heroin, the first issue before us is whether the defendant constructively possessed them. See Commonwealth v. Sespedes, 442 Mass. 95, 99-100, 810 N.E.2d 790 (2004); Commonwealth v. Arias, 29 Mass. App.Ct. 613, 617-618, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 426, 475 N.E.2d 81 (1985). "Possession implies `control and power,' . . . exclusive or joint . . ., or, in the case of `constructive possession,' knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). "While presence in an area where contraband is found `alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], . . . presence, supplemented by other incriminating evidence, "will serve to tip the scale in favor of sufficiency."'" Id. at 409-410, 540 N.E.2d 1325, quoting from Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977). See Commonwealth v. Boria, 440 Mass. 416, 419, 798 N.E.2d 1017 (2003); Commonwealth v. Brown, 34 Mass.App.Ct. 222, 226, 609 N.E.2d 100 (1993).

In the case before us, the evidence was substantial to support the inference that the defendant knew that there were drugs in the apartment.³ Upon arrest, the defendant was in the only room where contraband was located, standing next to the ringleader, who threw bags of cocaine out the window when he heard that the police officers were approaching. He was in close proximity to the drugs and packaging materials that were in the open, in plain view. Contrast Commonwealth v. Pimentel, 73 Mass.App.Ct. 777, 784-786, 901 N.E.2d 718 (2009).

While the defendant is correct that his mere presence in an apartment, coupled with his awareness of the drugs being at the premises, is not enough to establish constructive possession, Commonwealth v. Gonzalez, 452 Mass. at 147, 892 N.E.2d 255, there are other factors here that adequately support a finding that he also had the...