Commonwealth v. Proia

92 Mass.App.Ct. 824

95 N.E.3d 285

COMMONWEALTH

v.Kayla M. PROIA.

No. 16–P–1191

Appeals Court of Massachusetts, Barnstable..

Argued October 4, 2017

Decided March 2, 2018

Kerry A. Haberlin, Boston, for the defendant.

Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Sacks, & Lemire, JJ.

AGNES, J.

Following a jury trial, the defendant, Kayla Proia, was convicted of one count of possession of a class A substance. G. L. c. 94C, § 34. The defendant moved for a required finding of not guilty pursuant to Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), at the close of all evidence. The defendant's motion was denied, and the case was submitted to the jury. After the jury returned their guilty verdict, the defendant again moved for a required finding of not guilty, both orally and in a subsequent written motion, pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 8962 (1979).

The defendant's motion for a required finding of not guilty was again denied.

On appeal, the defendant argues that testimony relating to a prior search of her apartment was erroneously admitted at trial. The defendant further argues that the Commonwealth failed to present sufficient evidence to convict her of possession of a class A substance. The defendant also claims that the prosecutor made improper remarks in his closing argument and that the judge did not remain impartial during the jury empanelment process. For the reasons set forth below, we affirm.

Background. The jury could have found the following facts.

1. January, 2015, search of the defendant's apartment. In January, 2015, a search warrant (January warrant) was executed at the defendant's apartment (January search or first search). Although the January warrant is not included in the record on appeal, it is inferable from the evidence concerning the second warrant, discussed below, that Alan Carey¹ was named in the January warrant and was the target of the police investigation. While conducting the January search, the police found approximately seventeen grams of heroin on top of the defendant's kitchen cabinets, as well as a scale. The defendant was not arrested or charged with any crime stemming from the January search of her apartment, although she was present in the apartment for the duration of that search. Instead, the defendant was advised by the police that "she shouldn't be hanging around" Carey.² Carey was subsequently arrested and charged with drug-related offenses based on the discovery of the heroin in the defendant's kitchen during the January search.

2. February, 2015, search of the defendant's apartment. On February 13, 2015, the police again executed a search warrant at the defendant's apartment. Carey was the target of the search and his name appeared on the search warrant. The defendant was not referenced in the warrant application, or the warrant itself, and was not a target of the police investigation.

Upon arriving at the defendant's residence, the police knocked on the door of the apartment and announced themselves. The apartment was breached after no one answered the door. After entering the defendant's apartment, the police found Carey, along with a three month old child, in the defendant's bedroom. After being read the Miranda rights, Carey stated that the defendant resided at the apartment, and that although he is not supposed to be there, he occasionally spent time at the apartment. When questioned about whether there were any drugs present in the apartment, Carey informed the police that "he had drugs under [the defendant's] dresser." He then directed the police to one of two dressers located in the room, under "which nine little knotted clear plastic baggies [containing] a brown, rock-like substance" were found. The police questioned Carey about the contents of the baggies, with Carey replying that they contained heroin.³ Police also located a box of clear sandwich baggies in the living room of the apartment, a digital scale in a container located in the kitchen of the apartment, and $226 in cash located in a separate container in the kitchen.

The defendant was not in the apartment during the execution of the February search warrant. Both the defendant and Carey testified that, approximately one hour after letting Carey into the apartment, the defendant asked him to watch their infant daughter while the defendant picked up their son from the bus stop. The search of the defendant's apartment began while the defendant was away from the residence picking up her son. Upon returning to the apartment, the defendant was immediately approached by police and placed under arrest. No drugs were found on the defendant's person. The police informed the defendant that drugs were found under her dresser and that Carey said the drugs were his. The defendant responded by stating that the drugs were not hers and that they belonged to Carey. The defendant was subsequently charged with one count of possession of a class A substance. G. L. c. 94C, § 34.⁴

Discussion. 1. Evidence of the first search of the defendant's apartment. During trial, the Commonwealth sought to introduce testimony relating to the January search of the defendant's apartment. The defendant objected. At a sidebar conversation following her objection, defense counsel stated, "I'd object. I think it's terribly prejudicial, and has nothing to do with the police [inaudible]."⁵ The judge admitted the testimony after concluding that the testimony "goes to [the defendant's] state of mind." At the time the testimony was proffered, the judge provided the jury with a limiting instruction that confined the use of the testimony to the issue of the defendant's knowledge. The defendant did not object to the limiting instruction or request that any alternative or additional instruction be given to the jury.

On appeal, the defendant argues that the judge erred in allowing testimony concerning the January search of the defendant's apartment in evidence on the basis that it was prior bad act evidence and its probative value was outweighed by the risk of unfair prejudice to the defendant. We disagree.

The defendant's objection was not sufficient to put the judge on notice as to the nature of her objection beyond challenging the evidence as not being relevant to the case before the jury. "When objecting, counsel should state the specific ground of the objection unless it is apparent from the context." Commonwealth v. Marshall, 434 Mass. 358, 365, 749 N.E.2d 147 (2001), overruled on other grounds by Commonwealth v. Santiago, 437 Mass. 620, 625–626, 774 N.E.2d 143 (2002), quoting from Liacos, Evidence § 3.8.3, at 85 (7th ed. 1999). See Mass. G. Evid. § 103(a) (2017). By stating only that the testimony of the Commonwealth's witness was "terribly prejudicial," the defendant did not object with the precision required to preserve the error on appeal, as she failed to delineate any specific evidentiary basis for the objection, and thus did not put the judge on notice that she was objecting to the testimony on the basis that it was prior bad act evidence.⁶ See Marshall, 434 Mass. at 365, 749 N.E.2d 147 ; Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192, 770 N.E.2d 1 (2002). The defendant's imprecise objection is of particular consequence in this case because a more exacting evidentiary standard must be applied by the trial judge when determining whether to admit prior bad act evidence.⁷ See Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27, 21 N.E.3d 157 (2014). The defendant's failure to preserve the issue for appeal requires us to consider whether the complained-of error created a substantial risk of a miscarriage of justice. See Commonwealth v. Jackson, 419 Mass. 716, 719, 647 N.E.2d 401 (1995).

Prior bad act evidence "is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Crayton, 470 Mass. at 249, 21 N.E.3d 157. See Mass. G. Evid. § 404(b)(1) (2017). However, if such evidence is offered "for a purpose other than character or propensity, such as to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation, the evidence is admissible where its probative value is not outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Veiovis, 477 Mass. 472, 481–482, 78 N.E.3d 757 (2017). See Crayton, 470 Mass. at 249, 21 N.E.3d 157 ; Mass. G. Evid. § 404(b)(2) (2017).

Here, the Commonwealth, proceeding on a theory that the defendant constructively possessed the heroin found in her bedroom, was required to prove, among other things, that the defendant had knowledge of the drugs located under her dresser. See, e.g., Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 680, 850 N.E.2d 1060 (2006). The testimony that the defendant was present during a prior search of her apartment, which uncovered seventeen grams of heroin, indicates that the defendant knew Carey had stored drugs in her apartment, and thus supports an inference that she had knowledge of the drugs located under her dresser that she was charged with possessing. See Commonwealth v. Mullane, 445 Mass. 702, 710, 840 N.E.2d 484 (2006) (evidence of prior prostitution investigation admissible to show "defendant's knowledge that illicit sexual activity was occurring at [the defendant's place of business]").

Additionally, the prejudicial effect of the testimony was greatly reduced by the circumstances surrounding the first search of the defendant's apartment. As was made clear through the testimony of all witnesses at trial, Carey, who admitted to being a heroin dealer at trial, was arrested after the first search of the defendant's apartment, while the defendant was not charged with any crime. Instead, the defendant was given advice by a police detective on the scene, which highlighted the fact that the defendant was not suspected of any wrongdoing at the time of the first search of her apartment. Therefore,the introduction of the...