Commonwealth of Massachusetts
Appeals Court
Bristol County 2003 Sitting
No. 2003-P-0444
_________________________________________
Commonwealth
v.
Alexandria Ruiz
__________________________________________
On Appeal From A Judgment Of The
Superior Court Of Bristol County
__________________________________________
Brief And Record Appendix
For The Defendant/Appellant
____________________________________________
Dana A. Curhan, Esq.
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
November 2003
Table of Authorities
A. Cases
B. Other Authorities
Issue Presented
Statement of the Case
Statement of Facts
A. The Commonwealth's Evidence
B. The Defendant's Evidence
Argument
I. 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
II. Conclusion
Addendum
Record Appendix
Whether the defendant 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.
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). [R. App. 1-2, 6-7] . On August 29, 2000, the defendant entered pleas of not guilty. [R. App. 1, 3].
Prior to the start of trial, the parties filed various motions not relevant to the instant appeal. [R. 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. [R. 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. [R. App. 4, 14]. 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. [R. 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. [R. App. 4, 15-16].
The case was entered on the docket of this court on April 1, 2003.
A. 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].
B. 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].
I. 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. 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, and she is entitled to dismissal of the indictment.
“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. ___, ___ (2003 WL 22718222 at 1) (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 ___ (2003 WL 22718222 at 2).
In this case, the Commonwealth offered no evidence establishing that the defendant knew that Simpson possessed cocaine at the time the police stopped the car. The contraband 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. 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 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).
The fact that the defendant shared an apartment with Simpson also does not help the Commonwealth. See Commonwealth v. Boria, 440 Mass. at ___ (2003 WL 22718222 at 2-3). The evidence established that she lived there with her mother and daughter and that there was a telephone in her name. However, the Commonwealth offered no evidence that the apartment itself was in her name. The police did find some evidence in the apartment that might have been connected to drug activities, but that evidence does little to help the Commonwealth. Most of the items-two scales, a bag of rubber bands, a box of sandwich bags-are innocuous household items that could be found in any residence. Contrast Commonwealth v. Suarez, 59 Mass. App. Ct. at 119. Even if these items were significant proof of drug dealing, the evidence does not establish that she was or would have been aware of their presence in the house, or that she would have been aware of their significance. The gun found in the kitchen was perhaps of some significance, but it was concealed in a high cabinet. Again, the Commonwealth offered no evidence that the defendant knew or should have known of its presence. Trooper Warmington described a pot he observed in the sink, which appeared to have some brownish residue that appeared consistent with crack cocaine, but he never sent this item to the lab for testing. In any event, even assuming someone cooked cocaine in this pot, the Commonwealth offered no evidence that the defendant assisted in doing so.
Of further significance, the apartment was fully furnished. In addition to the defendant and Simpson, the defendant's mother and young daughter lived there. Even assuming that drugs were sold there, based on the character and appearance of the apartment, it cannot fairly be characterized as a drug house. 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).
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; the Commonwealth simply offered no proof that she “had knowledge of the criminal operation and 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 ___ (2003 WL 22718222 at 2). 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. The indictment must be dismissed.
II. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that the judgment be reversed and that the indictment be dismissed.
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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