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Commonwealth of Massachusetts

Supreme Judicial Court

Bristol County 2004 Sitting

FAR No. _______

_________________________________________

Commonwealth

v.

Alexandria Ruiz

__________________________________________

On Appeal From A Judgment Of The
Superior Court Of Bristol County

__________________________________________

Application for Further Appellate Review
For The Defendant/Appellant

____________________________________________

Dana A. Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800

Table of Contents

Table of Authorities i

1. Cases

2. Other Authorities

A. Statement Of The Issue With Respect
To Which The Defendant Seeks Further
Appellate Review

B. Statement Of Prior Proceedings

C. Statement Of Facts

1. The Commonwealth's Evidence

2. The Defendant's Evidence

Argument

D. The Defendant's Motions For A Required
Finding Of Not Guilty Should Have Been
Allowed Where The Evidence Failed To
Establish Her Involvement In Her
Boyfriend's Unlawful Activities

1. The Standards

2. The Evidence Fails To Connect The Defendant
To Any Unlawful Activities Within The
Apartment Or To Prove Beyond A Reasonable
Doubt That She Was Assisting Her Boyfriend
In The Commission Of A Crime By Driving
His Car On The Morning Of Her Arrest

E. Conclusion

Appendix

Pursuant to Rule 27.1 of the Massachusetts Rules of Appellate Procedure, Alexandria Ruiz, the defendant in the above captioned action, applies for leave to obtain further appellate review of the subject matter.

A. Statement Of The Issue With Respect To Which The Defendant Seeks Further Appellate Review

Whether the defendant's motions for a required finding of not guilty should have been allowed where, viewed in the light most favorable to the Commonwealth, the evidence failed to connect her to her boyfriend's unlawful activities.

B. Statement Of Prior Proceedings

On August 17, 2000, a Bristol County grand jury returned a two-count indictment charging the defendant Alexandria Ruiz with trafficking in one-hundred or more grams of cocaine and conspiracy to violate the controlled substances laws. (Indictment No. BRCR2000-00255). [App. 1-2, 6-7] . On August 29, 2000, the defendant entered pleas of not guilty. [App. 1, 3].

Prior to the start of trial, the parties filed various motions not relevant to the instant appeal. [App. 3-4].

Trial commenced on the trafficking charge before the Honorable Patrick Brady and a jury on October 18, 2001. On the following day, at the conclusion of the Commonwealth's evidence, the defendant filed a motion for a required finding of not guilty. Judge Brady denied that motion. On October 22, 2002, at the close of all of the evidence, the defendant renewed her motion for a required finding of not guilty. Judge Brady denied the renewed motion that same day. [App. 4, 8-13].

The trial court submitted the case to the jury on theories of principal liability and joint venture. On October 23, 2001, the jury returned a guilty verdict only on the joint venture theory. [App. 4, 14]. Prior to sentencing, the Commonwealth entered a nolle prosequi, reducing the conviction to trafficking in more than twenty-eight grams of cocaine. On January 4, 2002, Judge Brady sentenced the defendant to a term of imprisonment of five years to five years and a day. He also imposed a $60.00 victim-witness fee and a $150.00 criminal assessment fee. [App. 4].

The defendant filed a pro se notice of appeal, along with a motion to late file notice of appeal, on March 4, 2001. Her motion was allowed, and the notice was docketed on that day. [App. 4, 15-16].

The case was docket in the Appeals Court on April 1, 2003. On November 1, 2004, the Appeals Court affirmed the defendant's conviction in a memorandum and order pursuant to Rule 1:28. [App. 17-20]. The defendant seeks further appellate review of the decision rendered by the Appeals Court.

C. Statement Of Facts

1. The Commonwealth's Evidence

On May 2, 2000, officers from the Massachusetts State Police prepared to execute a search warrant for an apartment at 12 Bonnie Lane in Mansfield, as well as a separate warrant for a 2000 Nissan Maxima. As he took up surveillance near the search location, Sergeant Anthony Thomas observed the Maxima drive away from the apartment complex toward Route 106. The defendant drove and Dwayne Simpson sat in the front passenger seat. Thomas directed Troopers Bazzinotti and Sampson, who were in a marked unit, to stop the car, search it for weapons, and arrest the occupants. The troopers pulled the car over, and Bazzinotti ordered Simpson out at gunpoint. Sampson then searched the car. She found a shirt in between the front seats. The shirt was an extra large, but attached to the shirt was a laundry tag bearing the defendant's name and telephone number. Inside the shirt, she found two clear plastic bags containing a brownish powder. [Tr. 1, 80-87; Tr. 2, 22-30, 49].

The contents of the bags were sent to the State Police laboratory for analysis. The lab returned the contraband with two separate certificates. Both identified the substance as cocaine in its freebase form, commonly known as crack cocaine, with a purity of 46 percent. The first bag weighed 21.78 grams, and the second weighed 78.5 grams. [Tr. 2, 51-53].

After securing the car and its occupants, the troopers executed the warrant at 12 Bonnie Lane. Inside the master bedroom, on a nightstand to the left of the bed, Trooper Richard Long found a pager and some rubber bands. Trooper Dean LeVangie found a small electronic scale and a cellular phone in a nightstand to the right of the bed. Also in the nightstand, he found various photographs of the defendant and Simpson, as well as various pieces of mail and documents bearing Simpson's name. Under the bed, he found a triple beam scale and a box of plastic sandwich bags. [Tr. 1, 97-110; Tr. 2, 3-17, 45-48]. Trooper Richard Warmington found a gunlock and gun case in the kitchen. [Tr. 2, 41-44]. In the kitchen sink, he observed a pan partially filled with water that appeared to have cocaine residue on the sides. [Tr. 2, 63-64].

On cross-examination, Warmington stated that he interviewed Simpson after his booking. After receiving his Miranda rights, Simpson stated that the cocaine was his, that he had purchased it, that he had cooked it, and that he had planned to distribute it. [Tr. 2, 108-110].

2. The Defendant's Evidence

Sergeant Thomas resumed the stand and testified that he was present during Dwayne Simpson's booking. After Simpson received Miranda warnings, he admitted responsibility for the contraband, he described where he purchased the drugs and how much he paid, and he admitted that he had cooked the cocaine. Simpson further stated that the defendant was not involved in the distribution of drugs and knew nothing about his activities. [Tr. 3, 3-7].

Argument

D. The Defendant's Motions For A Required Finding Of Not Guilty Should Have Been Allowed Where The Evidence Failed To Establish Her Involvement In Her Boyfriend's Unlawful Activities

As discussed above, the jury convicted the defendant of trafficking in cocaine on a joint venture theory but declined to convict her as a principal. Notwithstanding the jury's verdict, she contends that the evidence was legally insufficient to support her conviction under a joint venture theory. As the Appeals Court noted, the evidence would certainly support an inference that she lived with a drug dealer and that he conducted illegal activities in the apartment they shared. However, the evidence does not establish that she participated or assisted him in his illicit conduct. Her motion for a required finding of not guilty, filed at the close of the Commonwealth's case and renewed at the close of the evidence, should have been allowed. Moreover, in view of the lack of evidence supporting her conviction, the Appeals Court should have vacated that conviction and dismissed the indictment. Further appellate review is appropriate in these circumstances.

1. The Standards

“The Due Process Clause of the Fourteenth Amendment 'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'” Francis v. Franklin, 471 U.S. 307, 313 (1985), quoting In re Winship, 397 U.S. 358, 364 (1970). See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Commonwealth v. Salemme, 395 Mass. 594, 602 (1985). Article 12 of the Massachusetts Declaration of Rights provides a similar level of protection. Commonwealth v. Mills, 436 Mass. 387, 393 (2002); Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). See Commonwealth v. Boria, 440 Mass. 416, 418 (2003).

Under both constitutional standards, the trial court and an appellate court reviewing the sufficiency of the evidence are required to “consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Cordle, 412 Mass. 172, 175 (1992); Commonwealth v. Salemme, 395 Mass. at 595. See Jackson v. Virginia, 443 U.S. at 319.

Further, in deciding or reviewing a motion for a required finding of not guilty, "'it is not enough for the . . . court to find that there was some record evidence, however slight, to support each essential element of the offense.' Commonwealth v. Latimore, 378 Mass. at 677. Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation. Commonwealth v. Ferguson, 384 Mass. 13, 18 (1981).” Commonwealth v. Mandile, 403 Mass. 93, 94 (1988).

Beyond these general principles, where the prosecution seeks to establish the defendant's guilt under a joint venture theory, “the Commonwealth [is] required to prove that [s]he was present at the scene of the crime, had knowledge that another intended to commit the crime and shared the intent to commit the crime, and by agreement was willing and available to help the other if necessary.” Commonwealth v. Hernandez, 439 Mass. 688, 694 (2003). See Commonwealth v. Netto, 438 Mass. 686, 700 (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 [s]he knows the stash exists.” Id. See Commonwealth v. Cuffie, 414 Mass. 632, 639 (1993). “Living in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is not enough to prove” her guilt. Commonwealth v. Boria, 440 Mass. at 418-419.

2. The Evidence Fails To Connect The Defendant To Any Unlawful Activities Within The Apartment Or To Prove Beyond A Reasonable Doubt That She Was Assisting Her Boyfriend In The Commission Of A Crime By Driving His Car On The Morning Of Her Arrest

In this case, the defendant does not dispute that Simpson was a drug dealer and that he conducted illegal activities in the apartment they shared. Although there was no direct evidence on this point, the inference could certainly be drawn that he did so openly and that she therefore knew of his activities. The question, however, is whether she actively participated in or assisted Simpson in these activities.

Nothing found in the apartment answers this question. See Commonwealth v. Boria, 440 Mass. at 418-421. Notwithstanding the presence of some tools of the trade, such as scales and plastic bags, the apartment itself could not be characterized as a drug house. It was fully furnished, and in addition to the defendant and Simpson, the defendant's mother and young daughter lived there. Contrast Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 150 (1999) (traffic pattern and barricade at the rear door tended to establish that apartment was a drug trading post); Commonwealth v. Antonio, 45 Mass. App. Ct. 937-938 (1998) (apartment was sparsely furnished; the door was fortified with a bar, brackets, and several locks; and drugs, drug paraphernalia, and cash were found therein).

Nothing in the evidence offered by the Commonwealth connected the defendant to any of the items found from the apartment or to any of Simpson's activities. There is no evidence, for example, that she assisted Simpson in cooking the cocaine or that any of the paraphernalia found in the apartment was under her exclusive control. Further, her connection to the apartment itself was not entirely clear. While there was a telephone in the defendant's name, the Commonwealth offered no evidence that the apartment itself was in her name.

In the absence of any evidence connecting the defendant to activities within the apartment, the case ultimately comes down to whether the defendant knew that Simpson had contraband in the car and whether she intended to help him distribute it. The evidence might be consistent with the theory that the defendant was driving him to a drug transaction, but it is equally consistent with the defense theory that she did not know that the contraband was in the car. It was not in plain view but was concealed inside a shirt found between the driver and passenger seats. While the Commonwealth focused at length on the fact that her name appeared on the laundry tag attached to the shirt, that fact does not establish her knowledge of what may have been in one of the pockets at the time of her arrest. In acquitting her as a principal, the jury rejected the contention that the shirt belonged to her and agreed with her contention that it belonged to Simpson. See Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 119-120 (2003) (evidence was insufficient to establish that defendant had the ability to exercise dominion or control over cocaine in codefendant's backpack). Indeed, at most, the presence of the tag establishes that at some time in the past, she took her boyfriend's shirt to the cleaners, at which time it certainly would not have contained cocaine.

Nothing in the defendant's conduct establishes or even suggests her awareness of the cocaine or of Simpson's planned activities. Contrast Commonwealth v. Miranda, 59 Mass. App. Ct. 378, 388 (2003); Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 308 (2000). For example, the fact that she was driving Simpson's car does not show her guilty knowledge in the absence of evidence connecting this trip to Simpson's illegal activities. Contrast Commonwealth v. Hernandez, 439 Mass. at 689 (police observed three trips to particular location where they then observed defendant distributing cocaine). Nothing in the way in which she drove the car or in her actions at the time of the stop suggest that she was assisting him in any illegal activities. Contrast Commonwealth v. Maillet, 54 Mass. App. Ct. 910, 911 (2002) (defendant, who was driving vehicle in which suspected drug dealer and another passenger were riding, maneuvered vehicle into sufficiently unusual position in relation to undercover trooper's car such that it could be inferred that he had been informed of purpose of meeting and need for keeping trooper in check).

Viewed in the light most favorable to the Commonwealth, the jurors did not have to credit Simpson's admissions that he engaged in illegal conduct without the defendant's knowledge or participation. Nevertheless, the evidence failed to establish more than that the defendant lived with a drug dealer and perhaps had knowledge of his activities; the Commonwealth simply offered no proof that she “was willing and available to help if necessary.” Id. Perhaps she simply turned a blind eye to his activities, but in order to convict, “[t]here needs to be a 'plus' factor, i.e., incriminating evidence of something other than presence.” Id. See Commonwealth v. Boria, 440 Mass. at 418. In the absence of proof of such a “plus” factor, the defendant's motion for a required finding of not guilty should have been allowed. Further appellate review is appropriate in these circumstances.

E. Conclusion

Based on the authorities cited and the reasons aforesaid, the defendant respectfully requests that her application for further appellate review be allowed.

Respectfully submitted,
Alexandria Ruiz

By her attorney,

Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800

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