Commonwealth v. Ronald Martin.

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

19-P-1713

COMMONWEALTH

vs.

RONALD MARTIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of one

count of possessing a class B substance with the intent to

distribute, and two counts of possessing a class E substance.

On appeal, he claims there was insufficient evidence to support

his convictions, and that the judge erred in denying the

defendant's motion to disclose the confidential informant's

identity. We affirm.

1. Sufficient evidence. The defendant claims that there

was insufficient evidence that he possessed the drugs in

question as well as insufficient evidence that he intended to

distribute the "crack" cocaine. We disagree with both claims.

"When analyzing whether the record evidence is sufficient
to support a conviction, an appellate court is not required
to 'ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.'
Rather, the relevant '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.'" (Citations omitted.)

Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009). See

Commonwealth v. Ormond O., 92 Mass. App. Ct. 233, 236 (2017).

a. Possession. Possession may be constructive and proved

by circumstantial evidence. See Commonwealth v. Beverly, 389

Mass. 866, 870 (1983). To prove constructive possession, the

Commonwealth must show "knowledge coupled with the ability and

intention to exercise dominion and control." Commonwealth v.

Brzezinski, 405 Mass. 401, 409 (1989), quoting Commonwealth v.

Rosa, 17 Mass. App. Ct. 495, 498 (1984). In addition,

contraband may be jointly possessed; it need not be exclusive to

the defendant. See Commonwealth v. Dinnall, 366 Mass. 165, 168–

169 (1974).

"When contraband is found in a dwelling shared by a
defendant and one or more other persons, a finder of fact
may properly infer that the defendant is in possession of
the contraband (not necessarily exclusive possession) from
evidence that the contraband was found in proximity to
personal effects of the defendant in areas of the dwelling,
such as a bedroom or closet, to which other evidence
indicates the defendant has a particular relationship."

Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986). See

Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 99 (2010).

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Viewing the evidence in the light most favorable to the

Commonwealth, the jury were entitled to find the following.

When police entered the apartment to execute the warrant, they

saw the defendant exiting the bedroom he later told the police

that he shared with his girlfriend. Also, in the bedroom, there

was mail addressed to the defendant at that same apartment. See

Commonwealth v. Schmieder, 58 Mass. App. Ct. 300, 303 (2003)

(documentary evidence that defendant rented dwelling is relevant

to constructive possession).

Moreover, that the crack cocaine was found among men's

clothing in the bedroom closet permitted the jury to infer that

the defendant had, at the very least, joint constructive

possession of the drugs. That a large amount of cash, apparent

proceeds of drug distribution, was also found in and among the

men's clothing, and in a shaving kit, further supports this

conclusion. See Commonwealth v. Lee, 2 Mass. App. Ct. 700, 704

(1974) (defendant's papers, including mail addressed to

defendant at address, and men's clothing found in same apartment

as drugs and paraphernalia, supported finding of constructive

possession). All these facts taken together provided more than

sufficient evidence to establish the defendant's knowledge,

ability, and intention to exercise dominion and control over the

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area where the drugs were found.1 See Farnsworth, 76 Mass. App.

Ct. at 99. See also Commonwealth v. Clarke, 44 Mass. App. Ct.

502, 504–506 (1998) (defendant had constructive possession of

drugs found in bedroom in which his clothes and various forms of

identification were present).

b. Intent to distribute. As the Commonwealth notes, the

defendant's argument that there was insufficient evidence that

he intended to distribute the cocaine depends on viewing the

evidence in isolation. This, we cannot do. In the light most

favorable to the Commonwealth, the jury could conclude that the

police recovered a little more than four grams of crack cocaine.

The defendant claims that an intent to distribute cannot be

inferred from such a small quantity. "Quantity, however, is not

the only relevant circumstantial evidence of intent to

distribute." Commonwealth v. Rivera, 44 Mass. App. Ct. 452, 454

(1998), quoting Commonwealth v. La Perle, 19 Mass. App. Ct. 424,

429 (1985). Indeed, the cocaine was contained in ten separate

bags, which were all packaged in one bigger bag.2 See

Commonwealth v. Dessources, 74 Mass. App. Ct. 232, 238-239

1 Once the defendant's possession of the crack cocaine had
been established, the jury could easily infer that he had joint
constructive possession of the pills found in plain view on top
of the dresser in his bedroom.

2 The cocaine had a street value of between four hundred and
five hundred dollars.

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(2009). In addition to the individual bags of cocaine were

bundles of cash totaling more than $3,000, which is also

indicative of an intent to distribute. See Pena v.

Commonwealth, 426 Mass. 1015, 1018 (1998) (arrestee "with a

large amount of cash on his person . . . strongly suggests his

direct participation in the drug distribution"). This evidence

was supplemented by testimony from detectives regarding common

features of the drug trade, and that this amount, as packaged,

was more consistent with distribution than personal use. In the

end, from all the evidence, and the reasonable inferences drawn

therefrom, the jury could have rationally concluded that the

defendant possessed the crack cocaine with an intent to

distribute it. See Commonwealth v. Beckett, 373 Mass. 329, 341

(1977) (inference drawn from circumstantial evidence "need only

be reasonable and possible; it need not be necessary or

inescapable").

2. Disclosure of informant's identity. The defendant also

claims that the motion judge abused her discretion by denying

his request that the Commonwealth be ordered to disclose the

identity of the confidential informant (CI). We disagree.

The informant's privilege has long been recognized in the

Commonwealth. See Commonwealth v. Madigan, 449 Mass. 702, 705-

706 (2007); Commonwealth v. Amral, 407 Mass. 511, 516 (1990).

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"In order to obtain the identity of a confidential informant,

the burden is on a defendant to demonstrate that an exception to

the privilege ought apply, that is, that the disclosure would

provide him with 'material evidence needed . . . for a fair

presentation of his case to the jury.'" Commonwealth v.

Shaughessy, 455 Mass. 346, 353-354 (2009), quoting Commonwealth

v. Lugo, 406 Mass. 565, 574 (1990).

In this case, contrary to the defendant's claim, the CI did

not participate in or witness the events underlying the drug

charges against the defendant, but merely provided evidence to

support the issuance of the search warrant. See Brzezinski, 405

Mass. at 408. In that posture, the defendant has not made any

showing tipping the balance in favor of disclosure, because

"proof of the crime charged does not require proof of any of the

drug transactions that the informant is alleged to have

witnessed." Commonwealth v. Gandia, 492 Mass. 1004, 1008

(2023). See Commonwealth v. Figueroa, 74 Mass. App. Ct. 784,

791 (2009) (disclosure not required where government's case did

not depend on "proof that the defendant was involved in any

particular transactions, including the controlled purchases; CI

was patently not a percipient witness to the incidents"

[quotation omitted]); Commonwealth v. Fernandes, 30 Mass. App.

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Ct. 335, 339 (1991) (same). The motion to disclose the CI's

identity was properly denied.

Judgments affirmed.

By the Court (Meade,
Hershfang & Toone, JJ.3),

Clerk

Entered: October 9, 2024.

3 The panelists are listed in order of seniority.

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