Argued December 8, 2014.
Complaint received and sworn to in the Lowell Division of the District Court Department on April 26, 2010.
A pretrial motion to suppress evidence was heard by Martine Carroll, J.; the case was tried before Laurence D. Pierce, J.; and motions for a new trial and for other postconviction relief were heard by him.
Jeffrey G. Harris for the defendant.
Matthew Bailey for the Commonwealth.
Present: Kafker, Grainger, & Agnes, JJ.
[28 N.E.3d 505] Grainger, J.
The defendant was charged with possession of cocaine with intent to distribute. [28 N.E.3d 506] He was convicted by a jury in the District Court of the lesser included offense of possession of a class B substance, G. L. c. 94C, § 34. He appeals, asserting insufficiency of the evidence, error in the jury instructions, and error in the denial of his motion to suppress evidence and his motion for a new trial or a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). His claims of reversible error are primarily dependent on the issuance and execution of a so-called " no-knock" warrant that produced the evidence resulting in his conviction. We address ancillary claims before considering the issuance of the warrant, referring to the undisputed facts as they are pertinent to the issues.
The defendant argues that the Commonwealth failed to
demonstrate the requisite knowledge coupled with intent to exercise control that
would support a conviction of constructive possession of the cocaine found in
his bedroom. We disagree. The jury received evidence that the defendant was the
only person in his bedroom when the police executed the search warrant. The
police found cocaine in a glassine bag in the pocket of a man's shirt hanging in
the defendant's bedroom closet. In the defendant's bedroom the police found a
bottle of boric acid, sandwich bags, a digital scale, $422 in cash, a
Massachusetts identification card bearing the defendant's name and picture, a
Venezuelan passport bearing the defendant's name and a picture closely
resembling the defendant, and a billing receipt addressed to the defendant at
The defendant's argument that the absence of paraphernalia for personal use renders the conviction reversible ignores the fact that he was charged with intent to distribute. The absence of paraphernalia supports the distribution charge, and thereby also supports his conviction of a lesser included offense under these
circumstances. In any event, the absence of paraphernalia is irrelevant to the offense of simple possession. See Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 325-326, 922 N.E.2d 155 (2010) (evidence that goes to intent " does not ...