A split panel of the Massachusetts Appeals Court today upheld the delinquency finding (juvenile speak for conviction) against a boy who was convicted of possessing cocaine in a car in which he was riding. The name of the case is Commonwealth v. Ormond O.
A Quincy police detective was conducting undercover surveillance in April of 2015 when he started following a car driving through a neighborhood known for drug activity. The juvenile defendant was sitting in the front passenger seat. The car drove in one direction before reversing course and driving back toward its starting point. The detective believed the driver was engaging in counter surveillance (making sure nobody was following him). At some point, the detective and other officers stopped the car and confronted three occupants – the driver, the defendant, and a man sitting behind the defendant. The detective saw the back seat passenger place his hand on the floor in a suspicious manner, and the detective grabbed him and removed him from the car. The detective located seven small bags of cocaine on the back seat and 23 bags of cocaine on the floor immediately in front of the back seat (where the back seat passenger had placed his hand). All of the car’s occupants were taken out of the car and searched. Each occupant possessed a knife. Inside the vehicle there were seven cell phones (only one of which was possessed by the defendant) and approximately $2,000 (of which $294 was in the possession of the defendant). At trial, the detective was asked whether the defendant appeared to have any control over the cocaine and he responded, “he did not, nope.” Nevertheless, the jury convicted the defendant of cocaine possession and the judge sentenced him to probation.
The defendant appealed, arguing the evidence had been insufficient to support his conviction. Two of the three Appeals Court justices hearing the case concluded the evidence was good enough. The question was whether any rational jury could have convicted the defendant based on the evidence presented at the trial. The Appeals Court said an adequate circumstantial case against the defendant had been established by: (1) evidence that the neighborhood was known for drug activity; (2) the driver’s alleged attempt to conduct counter surveillance; (3) the large number of cell phones in the car; and (4) the presence of a large amount of cash in the car (folded and in different denominations). The Court concluded the evidence proved beyond a reasonable doubt that the defendant was engaged in a joint venture to possess the cocaine found in the back seat.
One justice dissented. He correctly concluded the evidence was insufficient to prove the defendant knew there was cocaine in the car. The dissent pointed out that a defendant’s mere presence in a car that also contains contraband, without more, cannot be the basis of a conviction. There needs to be additional evidence that the defendant knew about the contraband – for example: if the contraband is in plain view; if the defendant made a movement toward the contraband; if the defendant’s property was found near the contraband; or if the defendant made a statement that suggests he knew about the contraband. None of those extra facts exist in this case. The dissenting justice argued the trial judge should have entered a finding of not delinquent against the defendant at the conclusion of the Commonwealth’s case.
This is a terrible decision and will hopefully be reviewed and reversed by the Supreme Judicial Court.