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Appeals Court of Massachusetts.



Decided: April 09, 2021

By the Court (Sullivan, Massing & Englander, JJ.1)


A jury found the defendant, Cory Mitchell-Edwards, guilty of trafficking in a controlled substance (200 grams or more of cocaine), see G. L. c. 94C, § 32E (b) (4), and unlawful possession of a controlled substance (cocaine) with intent to distribute, see G. L. c. 94C, § 32A (c). On appeal, the defendant contends that (1) there was insufficient evidence of constructive possession or joint venture to support the trafficking conviction; (2) the trial judge abused his discretion by declining to dismiss a juror for cause; (3) the prosecutor's and witnesses’ references to the defendant's nickname or alias was unfairly prejudicial; (4) the trial judge abused his discretion in denying defense counsel's request to admit evidence of a third-party culprit defense; and (5) the prosecutor's assertion of facts in his opening statement that were not introduced at trial created a substantial risk of a miscarriage of justice. We affirm.

Discussion. 1. Sufficiency. A brown paper bag containing nearly 200 grams of “crack” and powder cocaine was seized when the police executed a search warrant at the apartment in which the defendant was arrested. The defendant contends that there was insufficient evidence of his knowledge, possession, or control of the paper bag, and that his conviction of trafficking (as opposed to distribution) on a theory of either constructive possession or joint venture must be vacated.2

We review the evidence “in the light most favorable to the Commonwealth in order to determine whether the evidence was sufficient to satisfy a rational trier of fact of each element of the offense beyond a reasonable doubt.” Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting Commonwealth v. Brown, 401 Mass. 745, 747 (1988). To prove constructive possession the Commonwealth must show “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Boria, 440 Mass. 416, 418 (2003), quoting Commonwealth v. Brzenzinski, 405 Mass. 401, 409 (1989). “Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Id. Mere presence or living in an area where contraband such as drugs are found will not support a finding of constructive possession. See Sespedes, supra at 101; Boria, supra at 418–419. “Rather, the Commonwealth has the burden of presenting evidence that establishes a ‘particular link’ ” between the defendant and the contraband for the purposes of proving constructive possession.” Commonwealth v. Proia, 92 Mass. App. Ct. 824, 831 (2018), quoting Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013).

The evidence of the defendant's possession was sufficient for two reasons. First, there was direct evidence of actual possession. In response to questioning after his arrest, the defendant said that he had gotten the drugs in the brown paper bag from, in the officer's words, a “Hispanic male.” After analysis, the defendant's fingerprint was found on one of the plastic bags containing cocaine that was found inside the brown paper bag.

Second, there was sufficient evidence of a “particular link” to the crack and powder cocaine in the brown paper bag. Proia, 92 Mass. App. Ct. at 831. Other “incriminating evidence” was present here. Boria, 440 Mass. at 419, quoting Brzezinski, 405 Mass. at 410. In addition to the defendant's statement to the police and his fingerprint on the baggie in the brown paper bag, the defendant completed a drug sale in the apartment minutes before his arrest. The buyer testified that he purchased cocaine from the defendant on various occasions over a six-month period, although this was the first occasion he went to the apartment to do so.3 A scale suitable for weighing drugs was on the kitchen table near the refrigerator where the drugs were found. Cut baggies were in the apartment. The defendant had a plastic bag of crack cocaine in his pocket. Text messages on the defendant's cell phone from the buyer and others included requests to purchase both “hard” and “soft” cocaine. Both types of cocaine were found in the brown paper bag.

The jury also heard evidence of consciousness of guilt. The defendant attempted to flee when the police officers executed the search warrant. He gave them a false identification and tried to misdirect the officers to a cell phone that was not his -- inferably to prevent discovery of the incriminating text messages. “[A]n ‘inference of guilt ․ may be drawn from evidence of flight, concealment, or similar acts,’ such as false statements to the police, [or] destruction or concealment of evidence․’ ” Commonwealth v. Vick, 454 Mass. 418, 424 (2009), quoting Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). See Commonwealth v. Sutherland, 93 Mass. App. Ct. 65, 69-70 (2018).

The evidence of joint venture was also sufficient. “A joint venture is established by proof that two or more individuals ‘knowingly participated in the commission of the crime charged ․ with the intent required for that offense.’ ” Commonwealth v. Winquist, 474 Mass. 517, 521 (2016), quoting Commonwealth v. Bright, 463 Mass. 421, 435 (2012). The defendant admitted to getting the brown paper bag from another man, his cell phone contained text messages arranging drug sales, he was found with drugs in his pocket, and he completed a drug sale shortly before the search warrant was executed in the same apartment where the brown paper bag and scales were found. “Based on the entirety of this evidence, the Commonwealth satisfied its burden of proof as to the existence of a joint venture.” Winquist, supra at 522.

Viewed in the light most favorable to the Commonwealth, sufficient evidence was presented at trial for a rational trier of fact to conclude that the defendant had both actual and constructive possession of the drugs in the paper bag, and that the defendant was involved in a joint venture to traffic in cocaine. See Commonwealth v. Mgaresh, 83 Mass. App. Ct. 276, 278 (2013).

2. Juror challenge for cause. The defendant asserts that the trial judge erred in declining to dismiss a juror for cause. We review to determine whether there was an abuse of discretion resulting in prejudicial error. See Commonwealth v. McCoy, 456 Mass. 838, 843-844 (2010).

“[W]hen a prospective juror states an opinion or belief, whether it is specific to the case or not, the judge must satisfy himself or herself that the prospective juror will be able to fairly evaluate the evidence and apply the judge's instructions on the law.” Commonwealth v. Williams, 481 Mass. 443, 453 (2019). Defense counsel challenged juror no. 18 for cause based on her response to questions regarding the defendant's decision not to testify.4 The judge questioned the juror as follows:

The Judge: “[O]ne of the questions asked of you was about your beliefs if the defendants does not testify and you seemed to indicate that you might take that into account, is that a fair statement?”

The Juror: “Um, yeah.”

The Judge: “Okay. At the end ․ of this case I'm going to be giving instructions on the law and I'm going to be telling all the jurors that the defendant has an absolutely constitutional right not to testify and no inference adverse to the defendant may be drawn from his failure to testify.”

The Juror: “Okay.”

The Judge: “Now, can you comply with that instruction?”

The Juror: “Yeah, but I'm going to be honest with you, I would still wonder why he wouldn't want to testify.”

The Judge: “We always wonder about certain things. What I'm asking is whether or not you can comply with that instruction and draw absolutely no inference adverse to the defendant as to why he did not testify if he chose not to? Is that something that you can do?”

The Juror: “Yes.”

The Judge: “And are you sure about that?”

The Juror: “Yes.”

The scope of the judge's questioning was comprehensive; the resulting ruling fell squarely within her sound discretion. See Williams, 481 Mass. at 446-447. Juror no. 18 stated twice that she would comply with the judge's instructions and, taken as a whole, her responses showed that she would be able to set aside her initial impressions and follow the judge's instructions. See Commonwealth v. Kennedy, 478 Mass. 804, 817-819 (2018). See also Commonwealth v. Rios, 96 Mass. App. Ct. 463, 472 (2019) (judge did not err in determining juror impartial “after she candidly acknowledged her reservations” but stated she could be fair and impartial). “[A] determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous.” McCoy, 456 Mass. at 842, quoting Commonwealth v. Lopes, 440 Mass. 731, 736 (2004).

Furthermore, the defendant was not prejudiced. See McCoy, 456 Mass. at 842. Defense counsel exercised four of the allotted five peremptory challenges after the judge declined to dismiss juror no. 18 for cause. A peremptory challenge remained, and there is no claim that the defendant was forced to accept a juror he did not want to accept. See Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 647-648 (2017).

3. Alias. The defendant contends that it was improper and prejudicial for the Commonwealth to refer to him by the name “Money.” There was no objection to the use of this name at trial; we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Martin, 57 Mass. App. Ct. 272, 275 (2003).

The term “alias” is generally understood to mean “another name: an assumed name.” Webster's Third New International Dictionary 53 (2002). “While admissible if relevant and of more probative than prejudicial value, ‘[a]liases can be suggestive of bad character and prior criminality, and therefore raise a possibility that the jury will improperly consider criminal propensity.’ ” Martin, 57 Mass. App. Ct. at 275, quoting Commonwealth v. Carter, 423 Mass. 506, 514 (1996). Here, however, there was no argument either by the prosecutor or the defendant that “Money” was used to obscure the defendant's identity. “Money” was simply the only name the buyer had for the defendant. The buyer testified that he met the defendant in person between ten and fifteen times over a six-month period to purchase cocaine, and that he knew the defendant as “Money.” Both the prosecutor and the buyer referred to the defendant by his nickname on a handful of occasions, as did defense counsel.

“[A] prosecutor may refer to, or ask witnesses about, a defendant's nickname or alias when there is a reason to do so.” Commonwealth v. Martinez, 458 Mass. 684, 697 (2011). The use of the nickname here was highly relevant. The officers found text messages to “Money” from the buyer concerning drug sales on one of the cell phones found in the apartment. The same phone contained text messages to “Corey,” as well as messages from the defendant's girlfriend. The nickname helped link the defendant to the cell phone. The probative value of the nickname outweighed any prejudicial effect.

4. Third-party culprit. The defendant attempted to cross-examine the investigating sergeant to show that confidential informants had purchased heroin and cocaine from one or more individuals other than the defendant at the apartment approximately five months before the defendant's arrest. The judge sustained the prosecutor's objection after determining that any testimony from the sergeant as to what an informant said about who was present at the apartment during the controlled buys five months earlier was too attenuated and constituted unreliable hearsay. Because the admissibility of third-party culprit evidence is an issue of “constitutional dimension, we are not bound by an abuse of discretion standard, but rather examine the issue independently.” Commonwealth v. Moore, 480 Mass. 799, 807 (2018), quoting Commonwealth v. Conkey, 443 Mass. 60, 66-67 (2004).

“A defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it.” Moore, 480 Mass. at 806, quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009). See Mass. G. Evid. § 1105 (2021). Hearsay evidence that does not already fall within a hearsay exception is permitted to support a third-party culprit defense if “the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crimes.” Silva-Santiago, supra at 801, quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004). The evidence must also “have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.” Silva-Santiago, supra, quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996).

At trial the defendant argued that he was but a bit player, and that the drugs actually belonged to others. There is no authority “for the proposition that third-party culprit evidence is admissible when the claimed third-party is the principal and the defendant is charged under a joint venture theory.” Commonwealth v. Connors, 95 Mass. App. Ct. 46, 53 (2019). Additionally, we agree with the trial judge that the reports of drug sales by an unnamed informant some five months before the arrest consisted of multilevel hearsay that was too attenuated to show that there was a third-party culprit -- that is, that there was not a joint venture on the date specified in the indictments. See Commonwealth v. Cassidy, 470 Mass. 201, 216 (2014) (“proffered testimony was based on inadmissible ‘layered’ hearsay” and was inadmissible to prove third-party culprit defense). The fact that an unnamed informant may have been deemed reliable for purposes of a search warrant, see Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985); Commonwealth v. Santos, 94 Mass. App. Ct. 696, 699 (2019), does not mean that statements of an unnamed person are admissible at trial. See Cassidy, supra. See generally Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987) (“[E]vidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule”). The judge did not err in excluding this testimony.

5. Opening statement. In his opening statement, the prosecutor told the jury that at the time of the arrest there was “a small digital scale ․ covered in a white powdery residue which later tested positive for cocaine” on the kitchen table. There was evidence concerning the scale at trial, but there was no evidence of a white powdery substance on the scale, or that it tested positive for cocaine. As there was no objection, we review to determine whether any misstatement created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

A prosecutor may state anything he or she reasonably, and in good faith, expects to prove in his or her opening statement. See Commonwealth v. Halstrom, 84 Mass. App. Ct. 372, 383-384 (2013). “Absent a showing of bad faith or prejudice ․ the fact that certain evidence fails to materialize is not a ground for reversal” (citation omitted). Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 544 (2009). There is no claim of bad faith. The jury were instructed by the judge that opening statements were not evidence. While the reference to white powder or cocaine on the scale was mistaken, the failure of the Commonwealth to produce evidence at trial that it promised in its opening statement displayed a weakness in its case. Moreover, there was evidence that other substances in the apartment tested positive for cocaine. The misstatement did not create a substantial risk of a miscarriage of justice.

Judgments affirmed.


2.   At trial, the defendant conceded the distribution charge, but argued that he was not guilty of trafficking. The drugs in the brown bag were necessary to show, together with other drugs seized, trafficking weight of 200 grams or more of cocaine.

3.   The buyer was arrested outside of the apartment after throwing a bag of cocaine to the ground.

4.   The defendant also maintains on appeal that juror no. 18 expressed bias on two other occasions during the empanelment. This claim was not preserved at trial, is not separately argued here, and in any event, for the reasons stated infra, no prejudice has been demonstrated. See McCoy, 456 Mass. at 842-843.

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