Commonwealth v. James

¶1On the evening of October 29, 1987, Springfield police officers approached 55 Reed Street, Springfield, to execute a warrant to search the third-floor apartment. Several persons were standing on the first-floor *491porch or in a doorway to a staircase that led to the second and third-floor apartments. They began shouting warnings that the police were coming and fled up the stairs to the third-floor apartment.2 The defendant James, who was on the porch, was evidently the last to flee into the house, and he slammed the door shut on the first of the police officers, John O’Mara. The defendant ran up the stairway with Officer O’Mara ten feet behind, followed by other officers. When the defendant reached the third-floor apartment, he tried to enter it but the door had been locked. (The police heard cries within, “Police, lock the door.”) Officer O’Mara saw the defendant drop a plastic bag in the hall outside the apartment. The defendant fled to the third-floor porch. O’Mara kicked in the door of the apartment and entered the living room. Other officers, Sergeants Thomas Kelly and Kevin Dudley, followed the defendant. They saw him “crouched in a ball” in a corner of the porch; nearby were plastic bags. As he tried to climb to the roof, officers seized and arrested him. Retrieved from the hallway floor outside the apartment was a plastic bag containing eight smaller plastic bags of cocaine weighing a total of 3.31 grams and from the porch, five bags of cocaine weighing 1.77 grams; altogether 5.08 grams, recognized by the officers as crack cocaine in white chunk form,3*492with a street value of fifty dollars a bag (a “jumbo”), or $650 in all. The defendant had on his person $265 in cash. He told the police that he lived in Miami but was staying at 55 Reed Street.

¶2O’Mara and other officers, upon entering the living room of the apartment, encountered Courtney McKenzie, Donald Johnson, and George A. Smith (aka Steven DePriest). On the floor beside them were six plastic bags of cocaine with a total weight of 2.55 grams, also one bag of cocaine weighing 0.55 grams. Under the living room couch the officers found a large plastic bag containing eighty bags of cocaine, together weighing 26.24 grams. The grand total of cocaine in the apartment was thus 29.34 grams. All was in the form of white chunks, recognized by the officers as crack cocaine, packaged (like the crack the defendant had dropped) in fifty dollar bags. The cocaine found in the apartment thus had a street value of $4,350.

¶3In the back bedroom the officers found Angela McKenzie (aka Angela Wiley) and another woman and a considerable amount of marihuana, some packaged in small (“dime”) bags, some unpackaged, and a supply of empty dime-size bags.

¶4After further search of the apartment, the officers recovered from a bureau drawer in another bedroom a .25 caliber Browning automatic pistol with an empty clip, together with ammunition of a larger caliber. The police also found a bill from a Holiday Inn in the name of Steven DePriest and pa*493pers belonging to others, including papers of the defendant; the testimony does not disclose the nature of these papers or the place or places in the apartment where they were found. Courtney McKenzie had $330 on his person, Johnson $250, Smith $76, and Angela McKenzie $171.

¶5The foregoing account summarizes facts that could have been found by a jury upon the trial of the defendant James and a codefendant, George A. Smith, in Superior Court. The crimes charged against the defendant were possession of cocaine with intent to distribute, possession of marihuana with intent to distribute, and trafficking in cocaine (weight in excess of twenty-eight grams). The jury brought in guilty verdicts and judgments of conviction followed, the conviction of possession with intent to distribute being dismissed as duplicative.

¶6On appeal the defendant contests all the convictions as being unwarranted by the evidence. He claims in particular that the evidence was not sufficient to connect him to the cocaine inside the third-floor apartment, a connection that was essential to the trafficking conviction,4 and, while he does not question the sufficiency of the evidence to show his possession of the thirteen bags of cocaine (eight from the hallway, five from the porch) that marked his path of flight, he contends that the aggregate amount, 5.09 grams, with a value of $650, was as consistent with personal use as with an intent to sell. See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 422-424 (1982); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 & n.10 (1984). This issue we need *494not face if the judge was correct in ruling that the evidence warranted an inference of the defendant’s complicity in possessing and distributing the cocaine found inside the apartment.

¶7In the view of a majority of the court, the jury could properly find on the foregoing evidence that the third-floor apartment at 55 Reed Street was the base of a cocaine distribution operation (the base in the sense that it was the location of the stash, if not also the place from which sales were made) and that the defendant James was implicated in the operation, if not as one of the persons who had actual or constructive possession of the stash, at least as one who aided and assisted those persons in the possession and distribution of the cocaine in the stash. Three strands of evidence, overlapping to some extent, warranted that inference.

¶8First, there was evidence that established the nexus between James and the apartment, evidence that would support a finding that James was living there (even if only temporarily). He admitted to the police that he was “staying at 55 Reed Street,” meaning in context that he was staying in one of the three apartments at that address. When the police arrived, he followed others through the door and up the stairs that led to the second and third-floor apartments.…5 He attempted to follow the others into the third-floor apartment and would have done so, presumably, if the door had not by then been locked. Papers belonging to the defendant were found inside the third-floor apartment.6

¶9*495Second, there was the evidence that the bags of cocaine that the defendant was discarding were apparently indistinguishable in content and packaging from those found by the police inside the apartment. While the laboratory certificates did not specify the type or the purity of cocaine in the separate packages,…7 the narcotics officers, some of whom had extensive experience in narcotics investigations and seizures, identified the white chunks in all the bags as crack cocaine, describing in some detail how it had been manufactured and the method by which it had been packaged, all in $50 bags, or “jumbos.” The judge sustained an objection to a question whether certain samples “appear [ed] consistent,” because the jury, which had all the samples before them, could judge for itself. With the jury looking at the samples, the prosecutor urged them to draw conclusions from their similarity, and the defendant’s counsel, acknowledging the similarity, argued that the evidence was equally consistent with the defendant’s being a buyer as with his being a seller. Without the bags before us, we have no basis for assuming that the jury could not properly infer from their appearance and from the expert testimony of the narcotics officers that the defendant’s thirteen bags were identical in content and packaging to those in the large cache.

¶10In some cases a defendant’s connection to a stash of narcotic drugs has been established largely by the close similarity of the narcotic drugs in his actual possession (i.e., on his person) to the narcotic drugs in the stash. See, e.g., Commonwealth v. Brown, 12 Mass. App. Ct. 988 (1981), where *496the defendant was convicted of possessing marihuana with intent to distribute based on evidence that the small quantity in his variety store, with manila envelopes, was replicated in a large cache of marihuana, with identical manila envelopes, found in the home of his former wife, where the defendant was “more than a casual visitor.” 12 Mass. App. Ct. at 989. See also Commonwealth v. Pratt, 407 Mass. 647, 652 (1990). Examples from other States are numerous.8 The validity of such an inference depends on many circumstances, *497such as the distinctiveness of the packaging; and a close similarity, while it may support an inference that the personally held sample came from the stash, does not by itself establish the relation of the person holding the sample to the stash. (In this connection, the jury had a basis, as the prosecutor argued, for excluding the possibility that the defendant had come to 55 Reed Street to purchase, in light of his admission that he was staying at 55 Reed Street.)

¶11The third strand of evidence consisted of the behavior of the defendant and his group (i.e., those on the porch) in response to the arrival of the police, behavior that was suggestive of an attempt to delay the police, to warn the occupants, and to reach the apartment, inferentially to assist in concealing or disposing of the contraband therein. Instead of dispersing, they fled towards the apartment, shouting warnings to those above, and shutting doors against the police. Because the police were so close behind them, there would have been no time to dispose of the stash, and one can surmise that the packets on the living room floor, like those discarded by the defendant in the hall and on the porch, may have represented a last-second attempt to shed packets carried on their persons. An inference could properly be drawn by the jury, however, that the defensive behavior exhibited collectively by the defendant and his group went beyond personally carried packets and was directed towards protecting the apartment that contained the stash of cocaine. Behavior of this type has played a role in many decisions that have held the defendant sufficiently linked to a stash of narcotics. See, e.g., Commonwealth v. Dinnall, 366 Mass. 165, 169 (1974) (“the defendant, seeing the invading officers, endeavored to slam the door shut”); Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) (“[t]he defendant’s retreat into the closet containing cocaine and cocaine paraphernalia allowed an inference of consciousness of guilt”); Commonwealth v. Pratt, 407 Mass. at 652 and n.7 (delay in opening door and defensive gestures as police approached contraband). Compare Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426-427 (1985), and, on the facts, Commonwealth v. Arias, *49829 Mass. App. Ct. 613 (1990), further appellate review granted, 409 Mass. 1103 (1991) (defensive behavior by occupants of apartment used as a stash for narcotics).

¶12The totality of the evidence, in the view of a majority of the court, warranted the inference that the defendant knew of the stash of cocaine in the apartment, was carrying cocaine that had come from the stash, and was a joint venturer in the crime of trafficking in cocaine. “Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.” Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976).

¶13As one who could be found to have assisted knowingly in a trafficking operation, the defendant was properly charged and convicted as a principal. See Commonwealth v. Pope, 397 Mass. 275, 283 (1986); Commonwealth v. Cook, 10 Mass. App. Ct. 668, 677 (1980).9 This was the theory on which the case was submitted to the jury, the judge having ruled that the evidence was insufficient to warrant an inference beyond a reasonable doubt, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), that the defendant was himself in possession of the cocaine in the apartment except as part of a joint venture. There is no question that one may be found guilty as an accessory to a crime that involves possession as an element. See, e.g., Commonwealth v. Alicia, 6 Mass. App. Ct. 904, 905 (1978); Commonwealth v. Ramos, post 915, 915-916 (1991). See also United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982); United States v. Carter, 721 F.2d 1514, 1533 (11th Cir. 1984); People v. Ortiz, 208 Cal. App. 2d 572, 581-582 (1962); People v. Doe*499mer, 35 Mich. App. 149, 151-152 (1971); Annot., Offense of Aiding and Abetting Illegal Possession of Drugs or Narcotics, 47 A.L.R.3d 1239, 1241 (1973). To convict on a theory of accessorial responsibility, it is not necessary to show that the defendant himself possessed the narcotics, either actually or constructively, United States v. Raper, 676 F.2d 841, 848-852 & n.1 (D.C. Cir. 1982); United States v. Fischel, supra at 1087-1088; United States v. Wesson, 889 F.2d 134, 135 (7th Cir. 1989); United States v. Poston, 902 F.2d 90, 94 (D.C. Cir. 1990), but it is frequently said that it is necessary to show that the defendant aided in the possession and in each other element of the substantive offense. United States v. Fischel, supra at 1087. United States v. Jackson, 526 F.2d 1236, 1238 (5th Cir. 1976). United States v. Zapata-Alvarez, 911 F.2d 1025, 1026 (5th Cir. 1990). In the words of Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973), “guilt of the accessory is established when it is further shown [i.e., in addition to the commission of a crime] that he intentionally assisted the principal in the commission of the crime and that he did this, sharing with the principal the mental state required for that crime.”10

¶14Here, we do not know the identity of the principal: i.e., the person or persons who actually or constructively possessed the large cache of cocaine. But it is obvious that someone possessed it, and it is inferable from the quantity — eighty $50 bags — that the intent of the person or persons was distribution. In these circumstances, it is not necessary that the principal or principals be identified or convicted before the person who assisted him or them in the perpetration of the principal crime may be convicted as a joint venturer or accessory. See United States v. Campa, 679 F.2d 1006, 1013*500(1st Cir. 1982), and cases cited. “To be sure, there must be a guilty principal before there can be an aider or abettor, but here the proofs connoted plainly enough that somebody was culpable .... It was not essential that the principal in the operation be identified so long as someone held that status.” Id.,quoting from United States v. Staten, 581 F.2d 878, 887 (D.C. Cir. 1978).

¶15While the evidence was sufficient for the conviction of trafficking in cocaine, the marihuana conviction must be reversed. Nothing in the evidence connected the defendant to the bedroom where it was found. The testimony did not disclose the location of his personal papers or their nature. No marihuana was found on his person. The evidence is at least equally consistent with an inference that the marihuana operation was the separate enterprise of Angela McKenzie and the other woman who were engaged in its packaging when the police arrived. Compare the Korreckt, Davenport, and Monson decisions cited in note 8, supra.

¶16The marihuana conviction is reversed and the verdict is set aside. The conviction of trafficking in cocaine is affirmed.

¶17So ordered.