# Commonwealth v. James

> Massachusetts Appeals Court · April 26, 1991 · 30 Mass. App. Ct. 490

URL: https://www.frixlaw.com/law-library/cases/9709477

## Case

- **Full name:** Commonwealth vs. Winston W. James
- **Court:** Massachusetts Appeals Court
- **Decided:** April 26, 1991
- **Citations:** 30 Mass. App. Ct. 490; 570 N.E.2d 168; 1991 Mass. App. LEXIS 260
- **Precedential status:** Published
- **Opinion:** Dissent by Gillerman
- **Judges:** Warner, Kaplan, Armstrong, Brown, Perretta, Dreben, Kass, Smith, Fine, Jacobs, Gillerman, Porada, Ireland, Greenberg, Laurence
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Gillerman, J.
(dissenting, with whom Kaplan, 1 Smith, Fine, Jacobs, Porada, and Greenberg, JJ., join). The defendant James could be found to have had in his possession thirteen bags with 5.08 grams of cocaine (3.31 grams retrieved outside the apartment, and 1.77 grams from the porch), with a street value of $650. An intent to distribute, a required element for each of the two convictions now on appeal, may be inferred from the fact that a person was in possession of a “large” quantity of a drug on the occasion of arrest. 2 How *501 ever, 5.08 grams in this case would likely be held not enough to figure as “large,” even if the $265 in cash, also found in the defendant’s possession, was viewed as a relevant factor, 3 and of course “trafficking” would not be made out. Counsel for the Commonwealth evidently conceived that the problem of raising mere possession to the higher levels could be overcome if a “joint enterprise” were charged to provide a plausible basis for bringing into consideration against this defendant the 29.34 grams of cocaine in the apartment. Elementary trial strategy then called for muddying the water ever so slightly for the confusion of a jury by putting this defendant, Winston James, on trial together with a codefendant, George A. Smith, who was found, along with a stash of cocaine, in the living room of the apartment, and who could be rather easily proved to have an intent to distribute, thus tainting James with guilt of trafficking.
To prove a person a joint venturer or enterpriser with responsibility for a trafficking offense based on possession, 4 *it must be shown that the person aided the principals in the possession, knowingly, of more than the required number of grams of cocaine, and shared the mental state required for the offense — here the specific intent to distribute the more than twenty-eight grams of cocaine. 5 It is not enough for joint venture responsibility that the person knew that a crime was to be, or had been, committed by others, 6 or even that the defendant was present when the crime was being committed. 7 Nor is evidence that an accused merely associated with persons who committed the crime sufficient to justify the inference that the accused was a participant. 8 Subsequent concealment of a completed crime does not make one an ac *502 cessory, 9 nor does acquiescence (without more) in the commission of a crime. 10 At the innermost core of joint venture liability is the need to prove that the defendant “somehow participated in committing the offense. . . ,” 11 Without knowing participation — without, as Judge L. Hand wrote (see note 11, supra) seeking by his own action to make the venture succeed — the defendant (as to whom proof of being a principal in the crime by hypothesis fails) is a mere bystander.
The trial judge understood the doctrine and, bringing it to bear on the crimes in this case, he instructed, as the binding law of the case, that to find the defendant guilty as a joint venturer the Commonwealth would have to demonstrate, beyond a reasonable doubt, that the defendant was “holding it [drugs] jointly for a joint enterprise for distribution purposes,” more particularly “that there is actual participation by the participants, by the particular defendant, and that he knew that the cocaine was there, and he knew what was in *503 tended to be done with it, and that he sought to make the enterprise succeed in some way.”
The evidence was so far short of satisfying the instruction that the instruction should not have been given as matter of law.
The Commonwealth’s principal witness was Officer O’Mara. He testified that as he and thirteen other police officers approached 55 Reed Street his “first observation” was “a person on the first floor porch .... He was standing there.” As Officer O’Mara got nearer the house, “people on the porch — one [unidentified] person in particular — began shouting ‘hondo’ and ‘police.’ ” Officer O’Mara than started running toward the porch, and the defendant “ran towards the door that leads up to the third floor .... He slammed the bottom door in my face. I pushed that door open. I chased him up the stairs to the third floor. As I got up to the third floor, he tried to get into the apartment. The door was locked. I could hear people inside yelling ‘police!’ Lock the door. Lock the door." (Emphasis added.) James then dropped several bags of cocaine and retreated to the third-floor porch where he was apprehended by other officers. Officer O’Mara kicked open the third-floor apartment door, went inside and arrested three males, including the codefendant Smith, and three females.
In short, the defendant, whatever he was up to, fled to the third floor where he was confronted with a locked door, Smith on the other side, and not one single word of testimony to connect the two individuals, or to connect James to the stash.
What connects James and Smith, or rather what connects James to the inside of the apartment, and therefore to the stash, and therefore to the venture, is entirely a matter of inference. The dividing issue at this point is not so much what is in the record, as what can be drawn from the record. The inferential chain is essentially this. First strand, James was “living" in the apartment. This can be inferred from the fact that when booked he said he resided in Florida but that he was “staying at 55 Reed Street” (apartment unmen *504 tioned), that he fled to the third-floor apartment along with others who were on the first-floor porch, and that papers of the defendant were found inside the apartment. Second-strand, the packaging and contents of the bags the defendant discarded were indistinguishable from those found inside the apartment. Third strand, the behavior of the defendant “and his group (i.e., those on the porch) in response to the arrival of the police . . . [was] suggestive of an attempt to delay the police, to warn the occupants” etc. This collective behavior permitted the inference that the concerted efforts of the defendant and his group were “directed towards protecting the apartment that contained the stash of cocaine.” Such behavior, of which James was a part, and which focused on protecting the stash, effectively linked the defendánt to the inside of the apartment.
These are but strands of gossamer. No rational juror would infer that James was living inside the third-floor apartment from James’ admission that he was staying, presumably temporarily, at “55 Reed Street,” from his solo flight 12 to the third-floor apartment from which he was excluded, and from the total absence (after a thorough police search) of any personal property or personal papers belong *505 ing to James in the apartment. 13 Nor could any rational juror infer from James’ possession of five grams of cocaine — merely because of similarity in packaging and content — that James was living in the third-floor apartment or that he knew of the stash of thirty grams inside the apartment. 14 Nor could any reasonably thoughtful juror infer from the fact that “people” (number unknown) were standing on the first-floor porch and, with the approach of the police, evidently disappeared, that James was part of an illicit cabal to protect the stash which, the majority presumes, they all knew about, and therefore James knew about.
But even if the majority were granted all these extravagant inferences, it would avail them nothing. Putting James inferentially inside the apartment, even attributing to James knowledge of the stash, does not — as we know from the decisional law, the judge’s instructions, and the prosecution’s theory of the case — put James in possession of the stash (from which one otherwise might infer intent to distribute) because there would still be absent any evidence from which the inference of James’ power over or control of that stash *506 could be drawn. Commonwealth v. Pratt, 407 Mass. 647, 651 (1990); Commonwealth v. Ramos, post 915 (1991). This much is conceded, by the Commonwealth and by the majority.
The heart of the matter, as we have said, is participation in the illicit venture, and it is precisely there that the majority’s case evaporates. There was a failure of proof that James participated in the crime of trafficking by providing substantial assistance to the enterprise of collecting and possessing, with intent to distribute, more than twenty-eight grams of cocaine. The cases cited by the majority illustrate what is missing in the Commonwealth’s case herein. In each instance where a defendant was found to be an accomplice in such a possessory offense, the defendant either (a) assisted in obtaining the drug for the principal, 15 (b) exercised control over a drug deal by directing a partner to convey the drug to a buyer, 16 or (c) lent his residence to another to be used to store and conceal the drugs. 17 In all the cases, the defendant *507 not only had knowledge of the entire quantity of drugs involved, but actually “aidfed the principal in its] possession.” 18 In the present case there is no evidence that the defendant procured the quantity in the apartment for any principal, or controlled the premises where it was found, or had any hand in the storage, concealment, or disposition of the more than twenty-eight grams. 19 In sum, there is no evidence from which a rational juror could find that James actively participated in and assisted a trafficking operation — a requirement the majority concedes.
We note, finally, that the majority take pains to assert that a lookout may be convicted on a joint enterprise theory. Perhaps this is so, but there is nothing to support the idea that the defendant was serving as a lookout. 20 There was no testimony that he was among those who shouted “hondo” or “police.” He was first seen on the first-floor porch (perhaps where he was staying), and with the arrival of the police raced to the third floor with five grams of cocaine in his *508 pocket. At the very most “that merely places the defendant at the scene of the crime and shows him to be in association with the principals,” but we have held that is not enough for conviction. Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986). The “Commonwealth must present additional evidence which implicates the defendant in the crime.” Ibid. The majority has impermissibly stacked inference upon inference, see Commonwealth v. Mazza, 399 Mass. 395, 399 (1987) (“We are not permitted to pile inference upon inference”), but no rational inference from the facts of this case will supply the only conclusion that counts: that James was a deliberate participant in the crime of trafficking.
The majority is content to leave the question of guilt to a jury. But there is no such thing as trial by jury; trial is by judge and jury, and the judge may not abdicate responsibility to rule in the first place whether there is a case to be submitted to the jury. Here there was nothing for the jury with respect to the major offenses charged.
Winston James was justly and deservedly convicted of possessing 5.08 grams of cocaine; the matter ought to have ended there.
Mr. Justice Kaplan, an Associate Justice of the Supreme Judicial Court, retired and recalled to active service in the Appeals Court pursuant to statutory authority, joined in the disposition of the case. His term of recall service ended before the opinion was issued.
See Commonwealth v. Rugaber, 369 Mass. 765, 770 (1976); Commonwealth v. Pratt, 407 Mass. 647, 650-651, 653 (1990).
See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 422-424 (1982); Commonwealth v. Tripp, 14 Mass. App. Ct. 997, 998-999 (1982).
See note 4 to the opinion of the majority. Ante at 493.
See Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973); Commonwealth v. Sinnott, 399 Mass. 863, 881 (1987); Commonwealth v. Ortiz, 408 Mass. 463, 466 (1990).
See Commonwealth v. Perry, 357 Mass. 149, 151 (1970).
See Commonwealth v. Saez, 21 Mass. App. Ct. 408, 410 (1986).
Ibid.
See Commonwealth v. Perry, supra at 151 .
See Commonwealth v. Chinn, 6 Mass. App. Ct. 714, 716 (1978).
See Commonwealth v. Suez, supra at 410, quoting from Commonwealth v. Amaral, 13 Mass. App. Ct. 238, 242 (1982); Commonwealth v. Stout, 356 Mass. 237, 241 (1969) (the defendant must be found to have participated in the venture “as in something that he wishes to bring about, that he seek by his action to make it succeed.” — quoting from United States v. Peoni, 100 F.2d 401, 402 [2d Cir. 1938], in which Judge L. Hand, reversed a conviction for accessorial responsibility because of insufficient evidence of the defendant’s participation in the crime. There Judge Hand traced the history of accessorial responsibility from 1790 in American law and from the 14th Century in English law concluding that “[a] 11 the words used [in the various statutes and treatises] •— even the most colorless, ‘abet’ — carry an implication of purposive attitude towards [the venture]”); Commonwealth v. French, 357 Mass. 356, 391 (1970), vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972) (to be an accessory means “more than mere acquiescence but does not require physical participation, if there is association with the venture and any significant participation in it”; in n.37 at 391 Justice Cutter refers the reader to Perkins, Criminal Law 593 [1957], where emphasis is put on an accessory who is the “brains” of a crime ring). See G. L. c. 274, § 2, and note 9 to the opinion of the majority. Ante at 498. See Commonwealth v. Cook, 10 Mass. App. Ct. 668, 673-674 (1980), noting the differences between accomplice and conspiratorial liability.
There is no adequate basis for the majority’s statement that the jury could have found that the efforts of James and his group were “directed towards protecting the apartment” or that James “followed others through the door and up the stairs that led to the second and third-floor apartments . . . [and that he] attempted to follow the others into the third-floor apartment ....’’ On cross-examination Officer O’Mara, after suggesting for the first time that some unidentified number of people on the porch “ran up into the apartment,” immediately corrected his testimony by admitting that the “only person I saw run was Winston James.” Upon further questioning, Officer O’Mara testified that he was only ten feet behind the defendant — just beyond an arm’s length — as he chased James up the stairs, and that the first time he saw the codefendant Smith was when he broke into the third-floor apartment. He did not see Smith in the hallway. There was no further testimony of importance on this point. The people on the porch may well have dispersed but, with the exception of James whom O’Mara chased up the stairs, the transcript is silent as to where the people went, who the people were, how many they were, or what, if any, connection they had with James.
The majority insists on the existence of such papers in the apartment, but concede that the testimony does not disclose “the nature of these papers or the place or places in the apartment where they were found.” Ante at 493. A more appropriate concession might have been to state that no papers of the defendant were found in the apartment, that the one isolated suggestion in the record that papers of James were found in the apartment was based on an obvious error in the transcript.
The majority claims that the packaging and the contents of the bags found outside the apartment were “indistinguishable” from thosé found inside the apartment, and that that permits the inference of James’ “connection to the stash” in the third-floor apartment. There is nothing in the record to suggest other than that the similarity was attributable to the absence of any distinguishing markings. Distinctive packaging (not present here) sensibly permits the inference of intent to distribute, rather than the inference of knowledge of the amount of another’s entire stash. See Commonwealth v. Pratt, 407 Mass. 647, 653 (1990). Moreover the cases cited in note 8 to the opinion of the majority merely present the issue of whether the evidence was sufficient to permit the inference of possession or constructive possession, not the quantum of evidence necessary for a finding of accessorial responsibility. Ante at 496. Commonwealth v. Brown, 12 Mass. App. Ct. 988 (1981), also cited by the majority, addressed the former issue. Ante at 495.
United States v. Carter, 721 F.2d 1514, 1534 (11th Cir. 1984) (defendants provided transportation, security, and protection payments to police for principals who were involved in marihuana smuggling); People v. Doemer, 35 Mich. App. 149, 153 (1971) (defendant was driving truck used to pick up marihuana shipment). See also United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974) (defendant shipped LSD to a trafficker and then received a portion of the proceeds after it was sold; on one occasion he accompanied the trafficker on a car trip to deliver LSD to where it was being sold). Federal cases cited in notes 16, 17, and 18 are based on the “aiding and abetting” provisions of 18 U.S.C. § 2 , the common law root of which is accessorial liability.
Commonwealth v. Alicia, 6 Mass. App. Ct. 904, 905 (1978) (defendant procured a buyer for heroin, then directed his accomplice, who possessed it, to bring the heroin for delivery); United States v. Fischel, 686 F.2d 1082, 1088-1089 (5th Cir. 1982) (defendant helped procure a buyer, and exercised some control over the drug when the deal was consummated). See also United States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982) (defendant arranged a sale of heroin, and directed an accomplice to turn the narcotics over to a buyer). Contrast United States v. Jackson, 526 F.2d 1236, 1238 (5th Cir. 1976) (conviction for aiding and abetting possession with intent to distribute reversed where defendant merely located a buyer for a dealer, but was not present when the transaction took place).
People v. Ortiz, 208 Cal. App. 2d 572, 579-580 (1962) (defendant kept personal belongings in, supplied equipment for, spent significant time in, and paid the bills for residence where heroin was found; defendant also *507 attempted to prevent police from entering the building and shouted “look out, here they come” from inside the building). See also United States v. LaGuardia, 774 F.2d 317, 319 (8th Cir. 1985) (defendant was lessee of apartment where drugs were found, possessed weapons in her purse used by drug dealers, had $10,000 hidden among her clothes, and had cocaine hidden in her bedroom).
United States v. Fischel, 686 F.2d at 1088 .
Even if James purchased the five grams of cocaine from those in control of the stash, absent evidence from which a rational juror could infer that James knew of the twenty-eight gram stash and intended to participate in its distribution, the purchase does not yield accessorial responsibility.
The majority quotes language from Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986), to the effect that a lookout may be convicted on a joint enterprise theory. This is certainly an accurate statement, but it is inapposite to the facts here. To the extent that James was shown to be a lookout, there is no evidence as to what he was guarding against. Given that he was found in possession of his own personal quantity of cocaine, the facts imply no more than that he was looking out for his own safety, or perhaps those on the porch with him. Compare Commonwealth v. Santiago, ante 207, 218 (1991) (defendant convicted on joint venture theory where he spent three days in a hotel room near his house with two coconspirators where numerous overseas phone calls were made, the three left in a vehicle, defendant acted as a lookout from rear window as car was being followed by the police, cocaine was later found in the trunk of the car).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709477. Public record. Not legal advice.