October 4, 2017.
received and sworn to in the Barnstable Division of the
District Court Department on February 17, 2015.
case was tried before Christopher D. Welch, J.
A. Haberlin for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
Present: Agnes, Sacks, & Lemire, JJ.
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.
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.
jury could have found the following facts.
January, 2015, search of the defendant's
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
Carey 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. 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
February, 2015, search of the defendant's
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
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. 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.
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.
Evidence of the first search of the ...