COMMONWEALTH v. MORPEAU, 2010-1292 (Ma.Super. Aug. 4, 2011)

No. 2010-1292.Commonwealth of Massachusetts Superior Court. Middlesex, SS.
August 4, 2011.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
LEILA R. KERN, Justice of the Superior Court.

The defendant was indicted by the grand jury in December of 2010 on the charge of Trafficking in Cocaine over 28 grams. Defendant now moves to dismiss that charge on the grounds that the grand jury indicted him on insufficient evidence under Mass.R.Crim.P 13 and Commonwealth v. McCarthy, 385 Mass. 160 (1982). Specifically, defendant argues that no evidence was presented to the grand jury to support the “constructive possession” requirement of the crime. For the following reasons, the Motion to Dismiss is DENIED.

DISCUSSION
1. Standard of Review under McCarthy

For the grand jury to issue a valid indictment the grand jury must “hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” McCarthy, 385 Mass. at 162 n. 5, 163. Probable cause to arrest requires “more than mere suspicion but something less than evidence sufficient to warrant a conviction.”Commonwealth v. Roman, 414 Mass. 642, 643 (1993). It exists where, “at the moment of arrest, the facts, and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the

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individual arrested has committed or was committing an offense.”Commonwealth v. Story, 378 Mass. 312, 321 (1979) cert. denied 466 U.S. 955 (1980).

2. Evidence Presented to the Grand Jury
a. Background

Trooper Orlando Tirella testified in front of the grand jury. On July 30, 2010, after an approximately 15-month investigation, Massachusetts State Police Officers executed a search warrant on 2 Dolores Avenue, Apartment 4 in Waltham. The 15-month investigation consisted of “controlled buys” with confidential informants, day and nighttime surveillance and subpoenas for phone numbers. Upon executing the search warrant, police officers found cash, two (2) cell phones, two (2) digital scales, plastic baggies with the corners cut out, and 64.11 grams of cocaine and crack cocaine.

b. “Constructive Possession”

In order to find that the defendant had constructive possession of the cocaine found in the apartment, there must be proof that the defendant knew of the location of the illegal drugs and had the ability and intent to exert dominion and control over the drugs. Commonwealth v. Gonzalez, 42 Mass.App.Ct. 235 (1997). “The requisite proof of possession may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Id. at 237.

Trooper Tirella testified to the grand jury that the defendant was the only resident of 2 Dolores Avenue, Apartment 4 in Waltham. Tirella testified that throughout the course of the investigation, police observed the defendant coming and going from that location and saw a car that the defendant was known to drive parked at that location. Upon executing the search warrant, the police found keys on the defendant’s person, which they used to enter the apartment. Furthermore, inside the apartment were many photographs of the defendant and his family,

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utility bills addressed to the defendant at that location, and clothes and sneakers that belonged to the defendant. There is no evidence or testimony indicating that the defendant lived with anyone else.

Based on that evidence, it was well within the scope of the grand jury to infer that 2 Dolores Avenue, Apartment 4 was the defendant’s apartment. Since the defendant lived in the apartment there was probable cause to support the defendant’s knowledge of the illegal drugs and his ability and intent to exert dominion and control over them. The fact that the number of bedrooms in the apartment and the location of the paper shredder (where the drugs were found) were not presented to the jury is irrelevant since the evidence in its totality shows that the defendant was the only one living there and thus had control over the residence as a whole. Therefore, there was sufficient probable cause for the grand jury to indict the defendant.

ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant’s Motion to Dismiss is DENIED.

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