Commonwealth v. Ricardo Calvo, Jr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1215

COMMONWEALTH

vs.

RICARDO CALVO, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Ricardo Calvo, Jr., was indicted on drug and

firearm-related charges, as an armed career criminal. The

defendant filed a motion to dismiss the firearm-related charges

claiming that the Commonwealth presented insufficient evidence

of probable cause to the grand jury; a Superior Court judge

(first judge) denied the motion after a nonevidentiary hearing.

The defendant also filed a motion to suppress. After an

evidentiary hearing, a second judge denied, in part, and

allowed, in part, the motion. Following a jury trial, the

defendant was convicted of possession with intent to distribute

cocaine, and possession of a firearm and ammunition without a

firearm identification card (FID).1 After a bench trial, the

1The jury found the defendant not guilty of distribution of
cocaine.
judge found the defendant guilty of the prior offense portion of

the charge of possession with intent to distribute cocaine, and

of being a level two, armed career criminal on the firearm and

ammunition charges.

On appeal, the defendant claims that the first judge erred

in denying his motion to dismiss, that it was error to allow

police officers to testify to the ultimate issue of whether the

defendant intended to distribute the drugs, that the evidence

was insufficient, and that the second judge erred in denying his

motion to suppress.

The Commonwealth concedes that the defendant is entitled to

a new trial on the firearm-related charges as it did not present

evidence during the trial regarding licensure. We agree and

vacate the convictions and set aside the verdicts on the charges

of possession of a firearm and ammunition without an FID card as

an armed career criminal pursuant to Commonwealth v. Guardado,

491 Mass. 666 (2023) (Guardado I), S.C., 493 Mass. 1 (2023),

petition for cert. filed, U.S. Supreme Ct. No. 23-886 (Feb. 14,

2024) (Guardado II). We affirm the remaining conviction.

1. Background. As a result of complaints about drug

activity, members of the Worcester police department

neighborhood response team set up surveillance at a four story

apartment building located at 5 King Street, an area where

police had made numerous drug, firearm, and violent crimes

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arrests. On February 20, 2019, Sergeant Jason Gaumond saw the

defendant twice exit 5 King Street through the front door. Each

time, the defendant met with someone for a few minutes and then

reentered the building through the front door. In the early

morning hours of March 8, police saw the defendant leave the

first floor back door of 5 King Street, apartment 1-L, walk

around to the front of the building, and over to a group of four

people. The defendant spoke to the group, received money, and

dropped something on the sidewalk (that was picked up by Kenny

Liriano, who was known to police from "previous incidents").

After the defendant walked away, the police approached the

group. Officer Luis Baez spoke to Liriano, who initially

refused to open his mouth; when he eventually did open it,

Liriano's mouth was empty. No drugs were found.

A couple of hours later, police saw a gray Toyota sedan

circle around the King Street neighborhood. The driver, later

identified as Jason Fontaine, was the only occupant of the

Toyota. Fontaine parked in the area of 5 King Street as the

defendant was leaving the building; the defendant then walked by

the Toyota with a cell phone in his hand. After Fontaine got

his attention, the defendant went back to the Toyota, talked to

Fontaine through the open passenger side window, and then got in

the front passenger seat. Fontaine pulled out, and turned on to

Main Street. Police observed that Fontaine appeared to pay more

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attention to the defendant than the road, as the defendant

appeared to be manipulating something on his lap. The defendant

handed something to Fontaine who immediately pulled over

approximately one block from where Fontaine picked him up. The

defendant, who was in the car for less than one minute, got out

and walked towards King Street, holding paper money in his hand.

Fontaine returned to King Street, and entered a store where he

purchased a small glass pipe that opened on both ends, and a

small piece of a copper Brillo pad. Police approached Fontaine,

identified themselves, looked in the Toyota, and recovered two

pieces of crack cocaine from the driver's seat. Approximately

five minutes after the defendant got out of the Toyota, he

returned to the front of 5 King Street where he was arrested. A

search of the defendant's person revealed $685 in cash, a cell

phone, and a spring assisted knife. The defendant, who had keys

for his apartment "on his chest," told police that he lived in

apartment 1-L at 5 King Street.

Police went to the apartment and spoke to Jasmine DeJesus,

the defendant's girlfriend. She eventually gave permission to

the police to search the couple's shared apartment, which

included a kitchen, master bedroom, and "kids room." In the

couple's master bedroom police found men's clothing, baseball

hats, and men's items on a bureau. In the windowsill, police

found digital scales, packaging, a gum container with ten grams

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of cocaine "cut" in a red pouch, sandwich bags, cut corner bags,

scissors, a switchblade, a "straight shooter," rolling papers, a

Brillo pad, two glass pipes, a lighter, a spoon, and a "diaper

bag." Between the mattress and the box spring, police found an

unloaded, operable Glock 40 firearm with a magazine with bullets

next to it, and a double edged knife.

Worcester police vice squad officer Michael Ryder testified

as an expert witness in surveillance for narcotics distribution

and the modus operandi of drug dealers, buyers, and users. He

also testified about the nature of the so-called "meaningless

ride." Ryder also testified that the items recovered from the

windowsill in the master bedroom were more consistent with drug

distribution than personal use. Finally, he testified that drug

dealers often have weapons for protection, and that these

weapons are often hidden between a box spring and mattress.

2. Discussion. a. Motion to dismiss. The defendant

contends that the Commonwealth failed to present evidence to the

grand jury to establish probable cause for the firearm-related

charges, and failed to present evidence that he did not possess

an FID card. "A grand jury must hear sufficient evidence to

establish the identity of the accused . . . and probable cause

to arrest him for the crime" (quotation omitted). Commonwealth

v. Stirlacci, 483 Mass. 775, 780 (2020). "Probable cause is a

considerably less exacting standard than that required to

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support a conviction at trial." Id. (quotation omitted). We

view the evidence heard by the grand jury in the light most

favorable to the Commonwealth. See Commonwealth v. Rakes, 478

Mass. 22, 29 (2017).

Here the Commonwealth proceeded on a theory of constructive

possession. The grand jury heard evidence that the defendant

was seen coming and going from 5 King Street, and selling crack

cocaine. They heard evidence that the defendant lived at 5 King

Street, had keys to the apartment on his person, and shared the

master bedroom where the drugs, paraphernalia, firearm, and

ammunition were located. This was sufficient to establish

probable cause of constructive possession. See Commonwealth v.

Rarick, 23 Mass. App. Ct. 912, 912 (1986) (and cases cited;

constructive possession supported by "evidence that the

contraband was found in proximity to personal effects of the

defendant in areas of the dwelling . . . to which other evidence

indicates the defendant has a particular relationship").

The defendant's argument that there was no evidence before

the grand jury that people engaged in drug distribution often

possess weapons is unavailing as such evidence is not required

to establish probable cause. The Commonwealth need only present

the grand jury "with the quantum of evidence adequate to support

probable cause, and not the greater amount of evidence necessary

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to support a conviction." Commonwealth v. Reyes, 98 Mass. App.

Ct. 797, 802-803 (2020).

Although the defendant is entitled to a new trial on the

firearm-related charges as set forth supra, we briefly address

his claim that the grand jury heard insufficient evidence

concerning licensure. Neither Guardado I nor Guardado II

requires the Commonwealth to present evidence of licensure to

the grand jury. But here the grand jury heard evidence that the

firearm had been reported missing one year prior, the defendant

was not "registered to own a gun," and he did not have an FID

card. The motion to dismiss was properly denied.

b. Police testimony. Prior to trial, the defendant filed

a motion in limine to preclude police fact witnesses from

testifying as expert witnesses, and to limit their testimony

about why they were in the area of 5 King Street to "citizen

complaints," without specifying the type of complaint. The

judge ruled that police could testify about what they are

trained to look for and what they observed, but not about the

"final step." She also ruled that they could use the phrase

"alleged drug-related activity." The defendant contends that he

was prejudiced by the testimony of two police witnesses in

contravention of these pretrial rulings.2

2 The judge sustained all but one of defense counsel's
objections, and instructed the jury to disregard the evidence

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Officer Alexander Maracallo testified that the police

surveillance was related to "possible drug dealing." He also

testified that he "was to conduct surveillance in a particular

area and suspect." The judge struck the first answer and the

term "suspect" from the second answer. Even assuming that the

words "dealing" and "suspect" contravened the judge's ruling and

were properly stricken, we presume the jury followed the judge's

instruction to disregard Maracallo's answer. See Commonwealth

v. Williams, 450 Mass. 645, 651 (2008).

The defendant next contends that Gaumond's use of the term

"drug area," which the judge struck, prejudiced him. Even if

this term violated the judge's pretrial rulings, the

Commonwealth contends, and we agree, that evidence that an area

is known for drug activity is generally admissible and that the

defendant in any event opened the door to this testimony when

defense counsel asked Maracallo if the area was a high crime

area where he had made arrests for drug possession and

distribution, crimes of violence, and firearm possession in the

past. Again, to the extent that the judge struck portions of

that she struck. Defense counsel assisted in crafting the
instruction, did not object to the instruction, and did not move
for a mistrial. The defendant contends this claim of error was
preserved, while the Commonwealth argues that it was not.
However, under either standard of review, the result is the
same.

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that testimony, the defendant received more than he was entitled

to. See Commonwealth v. Cassidy, 470 Mass. 201, 224 (2014). At

worst, the testimony was cumulative of other evidence. See

Commonwealth v. Best, 50 Mass. App. Ct. 722, 727 (2001).

Next, the defendant challenges Maracallo's testimony that

he told Fontaine that he would be charged with drug possession.

The judge instructed the jury that Maracallo was not testifying

as an expert witness, and therefore whether a suspected narcotic

was for personal use or distribution was a jury question.

Contrary to the defendant's claim, this testimony was not

inadmissible opinion evidence that Fontaine was a "buyer." It

was evidence that Fontaine was found in possession of crack

cocaine. Contrast Commonwealth v. Rodriguez, 456 Mass. 578, 592

(2010) (police testimony that they arrested "buyer" inadmissible

opinion evidence). The defendant also claims that Gaumond's

testimony that he was familiar with the defendant's clothing was

inadmissible opinion evidence. We disagree. This testimony was

based on Gaumond's direct observations of the defendant and his

identity, nothing more.

Finally, the defendant claims error in Maracallo's

testimony that based on his training and experience, Fontaine

purchased "drug paraphernalia,"3 and, during cross-examination,

3Maracallo testified that Fontaine "bought a small
cylinder. They usually comes in [sic] a rose, there's a rose

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when he testified that "we work as a unit. So my job was to

follow the buyer -- I'm sorry -- the vehicle." The judge struck

a portion of each answer and gave an instruction to the jury

(that defense counsel assisted with and did not object to) that

Maracallo was testifying as a fact witness, and not an expert

witness. See Commonwealth v. Amran, 471 Mass. 354, 360 (2015)

(no prejudice where curative instruction deemed sufficient by

defense counsel). The jury "are presumed to follow a judge's

instructions, including instructions to disregard certain

testimony." Williams, 450 Mass. at 651. Here the jury's

acquittal on the distribution charge is evidence that they were

able to disregard excluded testimony. See Commonwealth v.

Bourgeois, 68 Mass. App. Ct. 433, 438 (2007).

c. Sufficiency of the evidence. The defendant contends

the evidence was insufficient to convict him of any of the

charges. The "question is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979). "[C]ircumstantial evidence is competent to

establish guilt beyond a reasonable doubt." Commonwealth v.

that comes in it, but drug addicts, they usually take the rose
out."

10
Bush, 427 Mass. 26, 30 (1998). See Commonwealth v. Casale, 381

Mass. 167, 173 (1980) ("inferences drawn by the jury need only

be reasonable and possible and need not be necessary or

inescapable").

i. Drug charges. To prove the crime of possession with

intent to distribute, the Commonwealth must prove, beyond a

reasonable doubt, that the defendant "(1) knowingly possess[ed]

[cocaine] and (2) intend[ed] to transfer it physically to

another person." Commonwealth v. Tavernier, 76 Mass. App. Ct.

351, 355 (2010). The defendant only contests the element of

possession. To establish constructive possession, the

Commonwealth must prove that the defendant had knowledge of the

items and the ability and intention to exercise dominion and

control over them. See Commonwealth v. Hubbard, 69 Mass. App.

Ct. 232, 237 (2007). "Although mere presence where drugs are

discovered is not enough to support an inference of possession

of the drugs, the defendant's presence, coupled with a 'plus

factor,' i.e., other incriminating evidence, may suffice."

Commonwealth v. Ortega, 441 Mass. 170, 174 (2004) (quotation

omitted).

Here, police observed the defendant coming and going from

the apartment, where the defendant admitted he lived. See

Ortega, 441 Mass. at 174-175. The contraband was found in the

master bedroom, which the defendant shared with his girlfriend.

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"Residential status . . . is a relevant inculpatory factor to be

considered . . . since it indicates more than mere presence."

Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991)

(quotation omitted). Additionally, keys that opened the front

and back doors of the apartment were found on the defendant's

person. See Commonwealth v. Delarosa, 50 Mass. App. Ct. 623,

627 (2000) (possession of keys to apartment connected defendant

to apartment where contraband found). The master bedroom

contained men's clothing and men's items. The only other

bedroom in the apartment had children's items. From this the

jury could infer that the defendant shared the master bedroom

with his girlfriend. See Commonwealth v. Rivera, 31 Mass. App.

Ct. 554, 556-557 (1991) (evidence showed connection to bedroom

in apartment and no connection to other bedroom). That there

were no documents with the defendant's name on them or

photographs of him in the apartment is of no moment. Such items

are not necessary to link the defendant to the master bedroom.

In addition, police observations of the defendant's

behavior before the arrest, as set forth supra, was consistent

with the sale of drugs, and the contraband on the windowsill in

the master bedroom suggested that the drugs' owner was selling

them. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 831

(2018) (constructive possession may be proved by linking

defendant to area in home where contraband is found). This

12
evidence, coupled with Ryder's expert witness testimony,

permitted the jury to infer that the defendant left his

apartment with the drugs and returned there to obtain more drugs

to sell. This conclusion is buttressed by the discovery of $685

in cash on the defendant's person when he was arrested outside

of his apartment building. See Commonwealth v. Montalvo, 76

Mass. App. Ct. 319, 324-325 (2010).

ii. Firearm-related charges. Although, as discussed

above, we are vacating the defendant's convictions on the

firearm-related charges pursuant to the Guardado decisions, we

comment on the sufficiency of the evidence to determine whether

he can be retried. For the reasons set forth supra, the

evidence likewise established that the defendant constructively

possessed the firearm and ammunition located in between the

mattress and box spring in the master bedroom. The jury also

heard expert testimony from Ryder that drug dealers possess

weapons to protect themselves, their money and contraband, and

that these weapons are often concealed between a box spring and

mattress. From this the jury could infer that the defendant had

knowledge of and intended to exercise dominion and control over

the firearm and ammunition located underneath the mattress in

the master bedroom where he slept. See Hubbard, 69 Mass. App.

Ct. at 237.

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d. Consent to search. The defendant claims that the judge

erred in denying his motion to suppress because DeJesus did not

consent to the search of the apartment. The second judge ruled

that DeJesus freely and voluntarily consented to the search of

the apartment based on the following findings. "DeJesus

[either] affirmatively responded to [the police] request to

enter [the apartment} or [she] only stepped back, allowing

[their] entry." See Commonwealth v. Rogers, 444 Mass. 234, 240

(2005) (occupant's gesture or stepping aside from threshold in

response to request from police amounts to consent to enter).

About an hour later, "DeJesus, the lessee of the apartment, said

she had something to show police. Before allowing her to do so,

police had DeJesus sign a written consent form permitting

officers to search the apartment." Because DeJesus consented to

the search, it was lawful.

To the extent that the defendant challenges the judge's

finding of the voluntariness of DeJesus's consent, this is a

question of fact, and we defer to the judge's findings which are

not clearly erroneous. See Commonwealth v. Soto-Suazo, 100

Mass. App. Ct. 460, 467 (2021). Although DeJesus initially

refused to allow the police to search the apartment, she later

changed her mind and gave her consent. This is evidence that

DeJesus understood her right to refuse to consent to the search.

While being videotaped, DeJesus signed a consent to search form,

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and led police to the windowsill where the contraband was

located. This is further evidence of DeJesus's free and

voluntary consent. See id. at 468. Although police told

DeJesus that they did not want to execute a search warrant when

her children returned from school (in order to not traumatize

them) -- and while in some circumstances such a statement might

support an inference that the police were attempting to obtain

consent by frightening a resident about the effects on her

children of not doing so -- the judge's finding that this did

not establish coercion was adequately supported, as was his

conclusion that it did not negate the voluntariness of DeJesus's

consent.

3. Conclusion. The judgments of conviction of possession

of a firearm and possession of ammunition without an FID card

are vacated and the verdicts are set aside, with the

Commonwealth remaining free to retry the defendant if it so

chooses. See Guardado II, 493 Mass. at 12. The judgment of

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conviction on the charge of possession with intent to distribute

cocaine is affirmed.

So ordered.

By the Court (Rubin, Blake &
Shin, JJ.4),

Assistant Clerk

Entered: April 4, 2024.

4 The panelists are listed in order of seniority.

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