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Commonwealth v. Ormond O.

Appeals Court of Massachusetts, Norfolk

September 18, 2017

COMMONWEALTH
v.
ORMOND O., a juvenile.

          Heard: February 7, 2017.

         Complaint received and sworn to in the Norfolk County Division of the Juvenile Court Department on April 6, 2015.

         The case was tried before Mary M. McCallum, J.

          Frank H. Spillane for the juvenile.

          Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

          Present: Green, Meade, & Agnes, JJ.

          MEADE, J.

         After a 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.[1] The judge imposed a sentence of six months of probation. On appeal, the juvenile claims there was insufficient evidence to support his conviction. We affirm.

         1. Background.[2]

         On 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 residence.

         The 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.

         The 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.

         As the 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.

         After 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.

         Andrade 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 the vehicle.

         After 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.

         From 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 compartment.

         No 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."

         Based 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 person."

         Keenan 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."

         2. Discussion.

         The 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).

         When 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.

         Here, 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.[3] 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.

         Once 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[4] containing twenty-three individual bags of cocaine was found in plain view[5]and 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.[6] 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 car).

         From 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, [7] 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").[8]

         This 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'") .

         In the 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).

         Adjudication of delinquency affirmed.

          AGNES, J. (dissenting).

         At the 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[1] 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.[2]

         The 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.

         Discussion.

         1. The essential facts.

         A very 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.[3] 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.[4] 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").

         2. The foundation for an inference of personal ...


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