Commonwealth v. Reyes

98 Mass.App.Ct. 797

159 N.E.3d 1055

COMMONWEALTH

v.Miosotis REYES (and eleven companion cases ¹ ).

Nos. 19-P-528 & 19-P-800

Appeals Court of Massachusetts, Hampden..

Argued July 15, 2020.

Decided November 17, 2020.

Lee Baker, Assistant District Attorney, for the Commonwealth.

Michelle A. Dame, Springfield, for Miosotis Reyes.

Robert F. Hennessy, Springfield, for Abner Alejandro.

Present: Blake, Sacks, & Ditkoff, JJ.

DITKOFF, J.

The Commonwealth appeals from an order dismissing indictments against the defendants, Miosotis Reyes and Abner Alejandro, for trafficking in thirty-six or more grams of heroin, G. L. c. 94C, § 32E (c ) (2) ; trafficking in one hundred or more grams of cocaine, G. L. c. 94C, § 32E (b ) (3) ; unlawful possession of a firearm, G. L. c. 269, § 10 (h ) (1) ; unlawful possession of ammunition, G. L. c. 269, § 10 (h ) (1) ;² possession of a firearm during the commission of a felony, G. L. c. 265, § 18B ; and improper storage of a firearm near a minor, G. L. c. 140, § 131L (a ) and (c ).³ We conclude that evidence that the defendants were present in and stayed in the one-bedroom apartment in which contraband was found in plain view, in combination with the other evidence presented to the grand jury, was adequate to provide probable cause that they constructively possessed the drugs, firearm, and ammunition seized from the apartment. Further concluding that the grand jury were not impaired and that a single cache of ammunition may be charged in a single count, we reverse so much of the order as dismissed the trafficking indictments and the indictments for unlawful possession of the firearm and ammunition. Concluding that the grand jury did not hear adequate evidence that the firearm was out of the defendants' control, we affirm the dismissal of the improper firearm storage indictments.

1. Background. Viewed in the light most favorable to the Commonwealth, the evidence presented to the grand jury was as follows. See Commonwealth v. Buono, 484 Mass. 351, 362, 142 N.E.3d 14 (2020). Members of the Holyoke police department were engaged in an investigation utilizing a confidential informant and focusing on a Hispanic male whose identity was not yet known to the police. As part of that investigation, the police obtained a warrant to search an apartment in Holyoke.

The warrant was executed on January 11, 2018, at approximately 3:45 P.M. Before entering the apartment, the police observed a man whom they believed to be a lookout in the alley leading to the side of the building. The police also observed a small security camera pointed at the back door of the apartment. Another security camera was later discovered in the bedroom window of the apartment.

The apartment itself was comprised of three rooms -- an open concept living area, which included kitchen and living spaces; a bedroom; and a bathroom. Upon entry, the police located four adults and four children inside. The defendants, another man, and three children ranging in age from three to six years old were in the living area; the children were sitting on a couch in front of a television. Another adult man, who was later identified as the target of the police investigation, along with an infant asleep in a car seat carrier, were in the bedroom. Reyes is the mother of all four children, and the two youngest children share the same last name as Alejandro.

Reyes reported that the apartment was rented in her mother's name. In the bedroom, the police located "clothing ... that appeared to belong to a younger female, matching the size of Ms. Reyes," "male clothing matching the size of Abner Alejandro," children's clothing in assorted sizes, and items for a baby, including diapers, formula, and toys. The police ultimately allowed Reyes to leave with the four children.

The search of the apartment and the three men present yielded an estimated forty-nine grams of heroin, 132 grams of cocaine, over eight ounces of marijuana, two firearms, twelve rounds of ammunition, and $8,643 in United States currency.

The heroin and cocaine were recovered from the living area. The heroin was packaged in 1,963 bags, and was located in a shoebox under the television stand and in a bag on a coat rack. The cocaine was found in a tin on a shelf in the kitchen and in a backpack under the kitchen sink. Loose bags of heroin and cocaine also were out on a shelf next to the refrigerator. Specifically, eight small baggies of cocaine were on the kitchen shelf, and thirteen baggies of heroin were next to the refrigerator.⁴ The marijuana was recovered from the bedroom, and was found in a crate and near the bed.

The police also recovered a loaded revolver wrapped in a T-shirt and also a sock containing three rounds of live ammunition from a wicker basket, three to four feet from where the children were sitting on the couch in the living area. A search of the man present in the living area with the defendants yielded a loaded nine millimeter handgun in his waistband.

Currency, totaling over $7,000, was located in two shoeboxes under the television, and an additional $708 was found by the police in the pocket of the target of the investigation. The remainder of the currency was found in various places in the living area and bedroom.

The police also seized an electronic money counter on the kitchen counter; packaging materials, a digital scale, and paperwork on a dresser in the bedroom; a "[b]low-out bag" near the bed;⁵ and an identification card issued by the Commonwealth of Puerto Rico in the bedroom.⁶

The grand jury returned eleven indictments against Reyes and twelve against Alejandro. After a hearing on their respective motions to dismiss,⁷ a judge concluded that inadequate evidence was presented to the grand jury to link the defendants to the living area of the apartment or to the illegal drugs, firearm, and ammunition found there. As a result, the judge dismissed all the indictments against the defendants except those for possession of marijuana with the intent to distribute.⁸

2. Adequacy of the evidence supporting the indictments. a. Standard of review. "Although, in general, a ‘court will not inquire into the competency or sufficiency of the evidence before the grand jury,’ ... ‘[a]t the very least, the grand jury must hear enough evidence to establish the identity of the accused and to support a finding of probable cause to arrest the accused for the offense charged.’ " Buono, 484 Mass. at 365, 142 N.E.3d 14, quoting Commonwealth v. Rex, 469 Mass. 36, 39-40, 11 N.E.3d 1060 (2014). "Probable cause is a ‘considerably less exacting’ standard than that required to support a conviction at trial." Commonwealth v. Stirlacci, 483 Mass. 775, 780, 137 N.E.3d 375 (2020), quoting Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984). "It requires ‘sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed,’ not proof beyond a reasonable doubt." Stirlacci, supra, quoting Commonwealth v. Levesque, 436 Mass. 443, 447, 766 N.E.2d 50 (2002). "As the issue of probable cause presents a question of law, we review the motion judge's determination de novo." Commonwealth v. Ilya I., 470 Mass. 625, 627, 24 N.E.3d 1048 (2015).

b. Trafficking and possessory charges. The Commonwealth defends the indictments on the basis of constructive possession rather than actual possession. Constructive possession requires "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Tiscione, 482 Mass. 485, 494, 124 N.E.3d 690 (2019), quoting Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004, 26 N.E.3d 741 (2015). "[M]ere presence in the area where contraband is found is insufficient to show ‘the requisite knowledge, power, or intention to exercise control over the [contraband], but presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.’ " Commonwealth v. Woods, 94 Mass. App. Ct. 761, 765-766, 119 N.E.3d 758 (2019), quoting Commonwealth v. Schmieder, 58 Mass. App. Ct. 300, 303, 789 N.E.2d 596 (2003).

In the circumstances presented here, the evidence before the grand jury satisfied the "decidedly low standard" of probable cause to indict. Commonwealth v. Barbosa, 477 Mass. 658, 675, 81 N.E.3d 293 (2017), quoting Commonwealth v. Hanright, 466 Mass. 303, 311, 994 N.E.2d 363 (2013). The grand jury could have reasonably concluded that the defendants and Reyes's four children were a family that lived in the apartment at times, even absent affirmative evidence that it was their primary or sole residence. The defendants and the four children were present in the apartment, the apartment was rented to Reyes's mother (who was not present), and clothing in sizes consistent with that worn by the defendants, various children's clothing, and items for an infant were in the bedroom. The grand jury could reasonably infer residence from this evidence. See Commonwealth v. Alves, 70 Mass. App. Ct. 908, 909, 876 N.E.2d 1181 (2007) (clothing suitable for defendant found next to contraband supported probable cause).

The grand jury also heard evidence from which the grand jury could infer that the defendants were aware of the contraband inside the apartment and that they exercised dominion and control over it. The firearm, ammunition, and most of the heroin and cocaine were hidden in the living area of the apartment; however, a few bags of both drugs were out in plain view in the kitchen where the defendants were found by the police.⁹ See Commonwealth v. Brzezinski, 405 Mass. 401, 402-403, 540 N.E.2d 1325 (1989) (police observed defendant and four other people around table "on which lay" cocaine). Cf. Commonwealth v. Ortega, 441 Mass. 170, 174-175, 804 N.E.2d 345 (2004) (contraband in plain view relevant to constructive possession analysis). The grand jury also heard evidence of other apparent signs that the small apartment was being used for drug distribution, including the presence of a lookout...