COMMONWEALTH v. RIVERA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was arrested after a search of the car he was driving revealed a hidden compartment containing over 360 grams of heroin. At trial, he argued that the car was not his and that he had no knowledge of the hidden compartment or the heroin. The jury rejected that argument and convicted the defendant of trafficking 200 grams or more of heroin, G. L. c. 94C, § 32E (c). On appeal, the defendant challenges the sufficiency of the evidence against him, and the prosecutor's closing argument. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On March 3, 2015, a cooperating individual (CI) placed a telephone call to his suspected drug source, spoke with an unidentified female, and requested a meeting between 5:00 p.m. and 5:30 p.m. because he needed a “thirty.” In a subsequent telephone conversation, the unidentified female told the CI “[h]e's going to be there in like fifteen minutes.” She also told the CI that “I'm just gonna call him because he's the one deciding ․ that's his stuff.”

Based on these monitored conversations, the police began surveillance in the area of Riverfront Park in Lawrence. At approximately 5:00 p.m., a surveillance officer observed a gray Jeep Cherokee drive into a parking lot at that location and park. A second officer observed a male, later identified as the defendant, walking up and down the street in the area “as if he was looking for somebody or something.” The defendant was then observed entering a “dark-colored” Jeep Cherokee. Approximately ten minutes later, the defendant drove off.

The blue lights of the unmarked police cruisers then were activated in an attempt to stop the Jeep Cherokee. The defendant immediately attempted a three-point turn in the middle of the street, reversed at a high speed, and almost struck one of the police cruisers. The Jeep Cherokee came to a stop shortly thereafter when it was boxed in by police vehicles and snow banks lining the street.

The defendant was removed from the Jeep Cherokee and a search of the vehicle revealed “aftermarket alterations” under the vehicle's dashboard that caused the police to suspect a hidden compartment. A K-9 unit was summoned and the drug detection dog alerted to an odor of drugs near the “firewall” between the vehicle's engine and windshield. The police opened the dashboard and discovered a hidden compartment behind the speedometer, where they located thirty-seven and one-half “fingers” of heroin.

Discussion. 1. Sufficiency. To convict the defendant of trafficking, the Commonwealth was required to prove beyond a reasonable doubt that the defendant knowingly or intentionally possessed with intent to distribute over 200 grams of heroin. See G. L. c. 94C, § 32E (b), (b) (4). See also Commonwealth v. Roman, 414 Mass. 642, 643-644 (1993). Because there was no evidence that the defendant actually possessed the heroin, we review for sufficient evidence of constructive possession. See Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323 (2010). Constructive possession requires proof that the defendant knew that the heroin was in the hidden compartment, and that he “had the ability and intent to exercise dominion and control over it.” Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019). “These elements can be shown by circumstantial evidence, and the reasonable inferences from such evidence.” Id.

“[A] sufficiency of the evidence evaluation for constructive possession is necessarily fact-specific, and turns on the totality of the evidence.” Santana, 95 Mass. App. Ct. at 268. While “mere presence in proximity to the contraband is not sufficient to establish constructive possession,” id., citing Commonwealth v. Romero, 464 Mass. 648, 653 (2013), the defendant's presence, coupled with other incriminating evidence -– “plus” factors -– “will serve to tip the scale in favor of sufficiency” (quotation and citation omitted). Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008). Here there were sufficient plus factors.

The defendant was observed arriving at the location where the CI had arranged to buy drugs at the approximate time the meeting was to occur. The defendant got out of the Jeep Cherokee and appeared to be looking for someone. The jury could have reasonably inferred from this evidence that the defendant was the person to whom the female caller earlier referred when she said “I'm just gonna call him because he's the one deciding ․ that's his stuff.” Further, when the police activated their blue lights to stop the defendant, he attempted to evade them. This evidence of flight could reasonably be considered as evidence of consciousness of guilt, another plus factor that the jury could consider. See Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41-42 (2010). See also Commonwealth v. Morris, 465 Mass. 733, 738 (2013), quoting Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) (“Flight is perhaps the classic evidence of consciousness of guilt”).

While it is undisputed that the defendant was not the registered owner of the Jeep Cherokee, the jury heard expert testimony that drug dealers frequently use vehicles registered to third parties to conceal their involvement in drug transactions. The expert also testified that drug dealers generally do not leave large quantities of heroin in the possession of persons uninvolved in their drug business. All of this evidence, considered together and in the light most favorable to the Commonwealth, was sufficient to permit the jury to conclude that the defendant knew the heroin was in the hidden compartment, and that he had the intent and ability to exercise dominion and control over it. See Latimore, 378 Mass. at 677.

2. Closing argument. The defendant also claims that during closing argument the prosecutor misstated the evidence, improperly injected her personal opinion, and shifted the burden of proof through the use of rhetorical questions. In reviewing these claims, we bear in mind that “[r]emarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).

First, the defendant claims that the prosecutor misstated the evidence when she referred to the Jeep Cherokee as “his car” that “he had somebody else register.” Because the defendant objected to these statements, we review them for prejudicial error. See Commonwealth v. Rosario, 430 Mass. 505, 515 (1999). Prosecutors cannot “misstate the evidence or refer to facts not in evidence” during closing argument (quotation and citation omitted). Commonwealth v. Walters, 472 Mass. 680, 703 (2015). Prosecutors are, however, “entitled to marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Here there was evidence that the defendant was the driver and sole occupant of a vehicle that contained over 360 grams of heroin, that the defendant attempted to evade the police while driving that vehicle, and that drug dealers' vehicles are often registered in the names of third parties to avoid detection by law enforcement. In light of this evidence, the prosecutor's reference to the Jeep Cherokee as “his car” that “he had somebody else register” was a fair inference. We discern no error in the prosecutor's argument that the jury should draw that conclusion. See Commonwealth v. Robinson, 482 Mass. 741, 753 (2019).

Second, the prosecutor's unobjected to statements regarding the strength of the evidence, the defendant's access to the heroin, and the prosecutor's reference to the defendant as a drug dealer, were fair responses to the defendant's closing argument. The defendant argued forcefully that the defendant had no knowledge of the 360 grams of heroin in the hidden compartment. The prosecutor was permitted to respond, see Commonwealth v. Anderson, 411 Mass. 279, 286 (1991), and her responsive argument was based on reasonable inferences from the evidence. Accordingly, we see no error, much less a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015).

Finally, we are not persuaded by the defendant's claim that the prosecutor's unobjected to use of rhetorical questions improperly shifted the burden of proof to the defendant.² While it is improper for prosecutors to use rhetorical questions in closing argument “where they could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant,” Commonwealth v. Habarek, 402 Mass. 105, 111 (1988), we do not perceive the prosecutor's questions in this case as ones that tended to shift the burden of proof. Rather, the questions were grounded in the evidence and were intended to convey that the defendant's argument defied common sense. Considering these questions “in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial,” Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018), quoting Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005), we see no substantial risk that justice miscarried.

Judgment affirmed.

FOOTNOTES

2.   The defendant challenges the following questions posed by the prosecutor: “Who was he looking for? Was he waiting for someone to arrive at that location to meet up with him?”; “Do you think that someone is going to leave 37 1/2 fingers of heroin, valued at almost $750 a finger, $28,000 worth of heroin, in a car and just let somebody borrow the car and hope he comes back? Wouldn't you be worried it would be in an accident and someone might find the hide; that the car could get stolen? $28,000 worth of the drugs, and they want you to believe he didn't know what was in there?”; and “If there was nothing –- if he was doing nothing wrong and there was nothing in the car that he was trying to avoid getting detected, why not stop?”