Heard: February 7, 2017.
received and sworn to in the Norfolk County Division of the
Juvenile Court Department on April 6, 2015.
case was tried before Mary M. McCallum, J.
H. Spillane for the juvenile.
Kukafka, Assistant District Attorney, for the Commonwealth.
Present: Green, Meade, & Agnes, JJ.
jury trial in the Juvenile Court, the juvenile was found
delinquent by reason of possession of cocaine, in violation
of G. L. c. 94C, § 34. The judge imposed a sentence of
six months of probation. On appeal, the juvenile claims there
was insufficient evidence to support his conviction. We
April 4, 2015, Quincy police Detective Dennis Keenan was
patrolling the "South Quincy/Penn Hill" area of
Quincy in plain clothes and in an unmarked cruiser. Detective
Keenan, a seven-year drug control unit veteran who had been
involved in more than one thousand drug cases, had made
arrests in that area. Around 5:45 £.M., Keenan
witnessed Tyler Mauritson exit a blue Infiniti motor vehicle,
registered to a Brockton woman, that was parked in front of
35 Nicholl Street, which is Mauritson's home. Keenan, who
was familiar with Mauritson, watched as Mauritson entered his
Infiniti drove away and turned left onto Franklin Street,
traveling into Braintree. The detective followed the car as
it went left onto Hayward Street and then right onto Quincy
Avenue, traveling south. While Keenan followed the Infiniti,
he contacted Detective Michael Duran and requested that he
speak to Mauritson and provide Keenan with an update.
Infiniti turned onto the Arborway, which is a residential way
that ends at the Fore River with side streets that lead back
to Quincy Avenue. Once the vehicle was on the Arborway, it
began to slow down before it turned into a driveway located
ten to fifteen houses down the street. The car then backed
up, turned around, and traveled back on the same route it had
just driven. While this was occurring, Keenan
"tucked" his unmarked cruiser onto a side street to
remain undetected. Keenan was aware of counter surveillance
methods by which a suspect, who is being surveilled for
illegal narcotics activity, employs certain driving tactics
to determine if the police are following him. Such tactics
include the suspect pulling the car over and watching how
many cars go by and in which direction they proceed, or
driving around a rotary without exiting to monitor any cars
that similarly follow.
Infiniti passed by Keenan, he noticed that the front
passenger window was open and that there was both an operator
and a front seat passenger. The detective could not see if
there were back seat passengers because the windows were
tinted and closed. The car continued back up the Arborway,
back onto Quincy Avenue, then back onto Hayward Street on the
same route it had just followed. The vehicle did not go back
to Franklin Street; instead, it continued toward Elm Street,
which leads toward a highway on-ramp. Keenan found it
significant that the Infiniti had stopped, reversed
direction, and then continued toward the same place from
where it had started.
Detective Duran provided Keenan with an update on his
conversation with Mauritson, Keenan contacted the Braintree
police to request assistance in stopping the Infiniti. When a
Braintree police officer pulled his car behind the Infiniti
and activated its siren, the Infiniti did not stop
immediately, but turned right and traveled "a very short
distance and stopped." When the car stopped, Keenan
approached the passenger's side, while the Braintree
police officer approached the driver. The driver was
identified as Kevin Cardoza, and the front seat passenger was
identified as the juvenile. Through the open back
passenger's side window, Keenan saw Louis Andrade, the
back seat passenger, take his right hand and place it on the
floor. Keenan considered this movement "suspicious"
and "significant, " and he feared that Andrade
might be retrieving a weapon. Keenan grabbed Andrade's
hand and pinned it to the floor, then raised it up and told
Andrade to keep his hands in the air.
was removed from the back seat of the Infiniti. As he was
removed, Keenan saw a small bag on the seat where Andrade had
been sitting. That bag contained seven individually packaged
bags of cocaine. The other occupants were also removed from
Andrade had been handcuffed, Detective Keenan went back to
the area of the car where Andrade had put his hand on the
floor and Keenan "could see right in front of [him] ...
a larger plastic bag" that contained twenty-three
individually packaged bags of cocaine and that weighed
forty-four grams. Keenan thought Andrade's earlier hand
movement to the car's floor was consistent with Andrade
removing the cocaine from his person and putting it on the
floor. Other than the front seat itself, no barrier separated
the juvenile from the back seat area where the larger bag of
cocaine was discovered.
the car's occupants, the police also seized three knives,
one from each suspect; seven cellular telephones (cell
phones); and approximately $2, 000, divided among the three
occupants. The money was separated into "different
folds" and denominations. Cardoza possessed the majority
of the money, the juvenile had $294, and sixty-five dollars
were either in Andrade's possession or in the glove
narcotics were found on the juvenile's person or in the
front seat area where he had been sitting, but he did possess
one of the cell phones and a knife. When asked on
cross-examination whether the juvenile "appear[ed] to
have any control over" the cocaine, Keenan replied that
"[h]e did not, nope."
on his training and experience, Detective Keenan explained
that multiple cell phones are often used in the distribution
of narcotics. Narcotics dealers keep both a personal phone
and a phone for their illicit transactions. Phones are often
"switched out" after a couple of weeks or months
"if a person selling narcotics is nervous that maybe the
police are on to them or their phone, . . . they dump it, and
they get a new phone and a new number. So they're
constantly changing. But . . . their own personal phone
usually stays the same, and that's why . . . sometimes we
do recover more than one cell phone off a single
also testified that large sums of money, in different folds
and denominations, often signifies drug distribution. He
explained that this is because "a lot of times these
deals happen this quick, " and "[t]he drugs go in
one, the money goes in your pocket, and if you were buying a
$40 bag of narcotics, you could have two 20s or some
denomination of $40. If it's 100, you could have five
20s, and that's why we find the different denominations.
It's denoting the sales of the drug trafficker."
juvenile claims that there was insufficient evidence to
support the verdict of delinquency by reason of possession of
cocaine. We disagree. To evaluate this claim, we apply the
same test as if we were evaluating the sufficiency of the
evidence to support a criminal conviction. That is,
"[w]hen analyzing whether the record evidence is
sufficient to support a conviction, an appellate court is not
required to 'ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt.' Commonwealth v. Hartnett, 72
Mass.App.Ct. 467, 475 (2008), quoting from Commonwealth
v. Velasquez, 48 Mass.App.Ct. 147, 152
(1999).... Rather, the relevant 'question is 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. Latimore, 378
Mass. 671, 677 (1979), quoting from Jackson v.
Virginia, 443 U.S. 307, 319 (1979)."
Commonwealth v. Rocheteau, 74 Mass.App.Ct.
17, 19 (2009) . See Commonwealth v. Bell,
83 Mass.App.Ct. 82, 83-84 (2013).
evaluating sufficiency, the evidence must be reviewed with
specific reference to the substantive elements of the
offense. See Jackson v. Virginia,
supra at 324 n.l6; Commonwealth v.
Latimore, supra at 677-678. Here, the
Commonwealth sought to prove the juvenile's possession of
the cocaine as a joint venturer or as a principal based on a
theory of constructive possession. However, there was no
requirement that the Commonwealth prove precisely what role
the juvenile played, i.e., whether he acted as a principal or
as a joint venturer. See Commonwealth v.
Rosa, 468 Mass. 231, 246 (2014); Commonwealth
v. Silva, 471 Mass. 610, 621 (2015). Rather,
under Commonwealth v. Zanetti, 454 Mass.
449, 466-468 & n.22 (2009), there need only be (1) proof
of the juvenile's knowing participation in some manner in
the commission of the offense and (2) proof that the juvenile
had or shared in the intent necessary for the offense.
there was direct evidence that Andrade possessed the cocaine.
Although the Commonwealth did not present direct evidence of
possession of the cocaine on behalf of the juvenile,
"evidence of a [juvenile's delinquency] may be
primarily or entirely circumstantial." Commonwealth
v. Lao, 443 Mass. 770, 779 (2005). Indeed, a
joint venture may be proved wholly by circumstantial
evidence. See Commonwealth v. Bright, 463
Mass. 421, 435 (2012). When we view the evidence in the light
most favorable to the Commonwealth, the juvenile's claim
of mere presence is defeated by several facts, and the
reasonable inferences drawn from those facts. Detective
Keenan's investigation began in a Quincy neighborhood
known for drug activity where he had made arrests in the
past. His attention was drawn to the blue
Infiniti, in which the juvenile was the front seat passenger.
After Keenan saw an individual he knew leave the car, he
followed the car on its seemingly meaningless path through
residential south Quincy and into Braintree, and then its
return on a nearly identical path. Having watched the car
retrace its route, Keenan believed the car was conducting
counter surveillance, which is a tactic used by drug
traffickers to detect a police presence.
the car stopped, Detective Keenan saw Andrade, the back seat
passenger, put his hand to the floor, directly behind the
juvenile, where the transparent plastic bag containing
twenty-three individual bags of cocaine was found in plain
viewand within the juvenile's reach. After
the juvenile and the other occupants were removed from the
car, each was found in possession of a knife. Although the
juvenile had but a single cell phone in his possession, a
total of seven cell phones were seized. As Keenan explained
to the jury, multiple cell phones are often used in the
distribution of narcotics. Also, more than $2, 000 was
recovered from the three occupants of the car. Even though
Cardoza possessed most of the money, each occupant possessed
multiple folds of money in different denominations that to
Keenan could signify it was the proceeds from the fast-moving
business of drug distribution. See Commonwealth v.
Crapps, 84 Mass.App.Ct. 442, 445 n.3 (2013) (cash
and cell phone, in combination with other evidence, permitted
finding of intent to exercise control over contraband in
all of the evidence, and the reasonable inferences drawn
therefrom, the jury could conclude that: the car was
conducting counter surveillance to avoid the police
discovering that the occupants were engaged in illegal drug
activity; all three occupants of the car were similarly armed
with a knife,  which implied an organized and collective
effort; all three possessed different folds of money
(totaling more than $2, 000) and a total of seven cell
phones, which both further indicated drug trade activity; the
cocaine was in plain view and within the juvenile's
reach; and the packaging and amount of the cocaine indicated
that it was for sale. See Commonwealth v.
Scala, 380 Mass. 500, 511 (1980) . Viewing these
facts collectively and in the light most favorable to the
Commonwealth, the jury were entitled to employ their
experience and common sense to reasonably conclude that the
juvenile and the other occupants of the car were working
together with a shared intent to, at the very least, commit
the lesser included offense of possession of the cocaine in
the car. See Commonwealth v. Longo, 402
Mass. 482, 487 (1988), quoting from Commonwealth v.
Cerveny, 387 Mass. 280, 287 (1982) ("The line that
separates mere knowledge of unlawful conduct and
participation in it, is 'often vague and uncertain. It is
within the province of the jury to determine from the
evidence whether a particular defendant [has] crossed that
line'"). A joint venture was properly established by
the Commonwealth. See Commonwealth v.
Zanetti, 454 Mass. at 466; Commonwealth v.
Bright, 463 Mass. at 435. See also Commonwealth
v. Drew, 4 Mass.App.Ct. 30, 32 (1976)
("Whether an inference is warranted or is impermissibly
remote must be determined, not by hard and fast rules of law,
but by experience and common sense").
was not a simple case for the Commonwealth to prove. The
evidence of delinquency was far from indisputable. But it is
not our (or the dissent's) task to substitute our
judgment or belief for that of the jury to determine whether
the juvenile's delinquency has been established beyond a
reasonable doubt. See Jackson v. Virginia,
443 U.S. at 318-319. Rather, our review is limited to whether
a rational jury could have found that the juvenile possessed
the cocaine beyond a reasonable doubt. See id. at
319. In other words, our appellate office does not permit us
to reweigh the evidence ourselves to determine whether the
jury made the correct delinquency determination but, rather,
after viewing the evidence in the light most favorable to the
prosecution, we may only determine whether the jury made a
rational decision regarding the juvenile's delinquency.
See Herrera v. Collins, 506 U.S. 390, 402
(1993). Indeed, "a reviewing court 'faced with a
record of historical facts that supports conflicting
inferences must presume -- even if it does not affirmatively
appear in the record -- that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to
that resolution.'" McDaniel v.
Brown, 558 U.S. 120, 133 (2010), quoting from
Jackson v. Virginia, supra at 326.
See Commonwealth v. Wilborne, 382 Mass.
241, 245 (1981), quoting from Commonwealth v.
Amazeen, 375 Mass. 73, 81 (1978) ("To the
extent that conflicting inferences are possible from the
evidence, 'it is for the jury to determine where the
truth lies'") .
end, the case against the juvenile "was not overwhelming
and involved some uncertainties that cannot be erased, but it
was also not so weak as to render the jury verdict
irrational. A rational jury might well have acquitted without
violating its oath; but, drawing all reasonable inferences in
favor of the prosecution, a rational jury could also [have
found the juvenile delinquent]." Stewart v.
Coalter, 48 F.3d 610, 616 (1st Cir.), cert, denied,
516 U.S. 853 (1995).
of delinquency affirmed.
Commonwealth's request and over the juvenile's
objection, the judge charged the jury on two theories of
delinquency by reason of possession of cocaine: constructive
possession, and joint venture by aiding and abetting. The jury
were directed to return a general verdict. See
Commonwealth v. Zanetti, 454 Mass. 449, 468
n.22 (2009). In order to prove its case under either of these
two theories, the Commonwealth was required to prove beyond a
reasonable doubt that the juvenile had knowledge that the
back seat passenger had the cocaine in his possession. See
Commonwealth v. Hamilton, 83 Mass.App.Ct.
406, 410-411 (2013); Commonwealth v. Lugo,
89 Mass.App.Ct. 229, 232 (2016). Cf. Commonwealth v.
Hernandez, 439 Mass. 688, 694 (2003) ("Where it
is a stash of cocaine that forms the basis for a charge of
trafficking, a defendant can only share an intent to traffic
if he knows the stash exists"). Because I do not believe
that the evidence was sufficient to permit the jury to infer
that the juvenile sitting in the front seat had knowledge of
the cocaine in the actual possession of the back seat
passenger, I respectfully dissent.
question before the court is whether the Commonwealth proved
beyond a reasonable doubt that the juvenile, who was in the
front passenger seat of the car, had knowledge of the cocaine
that was in the actual possession of the back seat passenger.
The essential facts.
brief statement of the essential facts is necessary to
clarify that evidence of the juvenile's knowledge of the
cocaine in the possession of the back seat passenger is
lacking. There is no evidence of any interaction among the
occupants of the car prior to or during the police stop. When
Detective Keenan approached the car on the back
passenger's side, the only observation he made was that
the back seat passenger, Louis Andrade, reached his hand to
the floor. Detective Keenan opened the back door and
grabbed Andrade's hand, pinning it to the floor. After
Andrade was removed from the car, Detective Keenan found, on
the seat where Andrade had been sitting, a bag that was small
enough to fit in one's palm containing seven individual
packages of cocaine. Keenan stated that this bag had been
under Andrade's buttocks. Detective Keenan returned to
the car after Andrade was secured and found a second bag of a
similar size containing twenty-three individual packages of
cocaine on the back floor where Andrade had reached with his
hand. There is no evidence that the juvenile made any
gestures or spoke any words. Each of the occupants had in
his possession a knife, but no description of the knives was
given. Seven cellular telephones (cell phones) also were
seized by the police. The juvenile had only one cell phone on
his person, and there was no evidence as to the location of
the other cell phones. The police found approximately $2, 000
in cash, most of which was found in the possession of the
driver. The juvenile had $294 (of unspecified denominations)
in his possession. There is no evidence that any of the cash
was located in plain view inside the car. There is no
evidence of any drug paraphernalia located in plain view
inside the car. There is no evidence that any item of
property associated with the juvenile was found in proximity
to the cocaine that was found in the back seat area. Finally
(and here I part company with the majority), there was no
evidence that the cocaine seized from the back seat area
where Andrade had been sitting was in the plain view of the
juvenile. See Commonwealth v. Snow, 76
Mass.App.Ct. 116, 119-120 (2010) (discussing meaning of
"in plain view").
The foundation for an inference of personal ...