MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was indicted on charges of trafficking in heroin, a class A substance; possession of a large capacity feeding device; and possession of ammunition without a firearm identification card. In connection with the latter two indictments, he was also charged with being an armed career criminal. Following the denial of his motion to dismiss, the defendant entered a conditional guilty plea, pursuant to Commonwealth v. Gomez, 480 Mass. 240 (2018). As part of the plea deal, the Commonwealth agreed to a reduction in the trafficking charge and dismissed the armed career criminal enhancements. The defendant appeals contending that the judge erred in denying his motion to dismiss the indictments. We affirm.
1. Background. We recite the evidence presented to the grand jury in the light most favorable to the Commonwealth. See Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020). At approximately 5 a.m. on September 5, 2018, officers of the Boston Police Department executed a search warrant at an apartment in South Boston. Just prior to the execution of the warrant, Zulemy Rivera left the target apartment. Officer Keith Kaplan stopped Rivera, who lived in the apartment. Kaplan gave Rivera Miranda warnings, after which she told him that there may be drugs in her room and a firearm in a safe in her nephews room. This nephew was later identified as the defendant. Police officers located four men in the three bedroom apartment. The defendant was found in what Kaplan described as “his” (the defendants) bedroom. In this bedroom, police officers found a cellular telephone on a television stand, nine Suboxone pills on top of the television stand, and a black digital scale on the bedside. In the closet of the bedroom, police officers found a safe and thirty-seven live rounds of .40 caliber ammunition, twenty-seven live rounds of .22 caliber ammunition, a high capacity feeding device, and a firearm cleaning device. A piece of mail addressed to the defendant at a different address was also found in the bedroom.
Police officers also found a live rifle round and a medium size plastic bag of heroin in the defendants bedroom. The officers noticed that one of the bedroom windows was “ajar a little bit,” and the air conditioner in the window next to it was “tilted a little.” Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) assisting in the execution of the search warrant were doing a perimeter search when they observed a plastic bag on the ground “located right like at an angle of [the defendants] window.” The bag contained 198 grams of fentanyl heroin with a street value between six thousand and ten thousand dollars.
A search of the defendants cell phone revealed photographs of the defendant holding what appeared to be a firearm. Portions of recordings of telephone calls made by the defendant while he was in jail were summarized and presented to the grand jury. Notably, the defendant denied throwing the drugs out of the window, but he also referenced “when [he] was selling.”
2. Discussion. “[G]enerally a court will not inquire into the competency or sufficiency of the evidence before the grand jury” (quotation and citation omitted). Commonwealth v. McCarthy, 385 Mass. 160, 161-162 (1982). Extraordinary circumstances may warrant a judicial inquiry into grand jury proceedings “when it is unclear that sufficient evidence was presented to the grand jury to support a finding of probable cause to believe that the defendant committed the offense charged in the indictment.” Commonwealth v. Freeman, 407 Mass. 279, 282 (1990). “[T]he grand jury must hear enough evidence to ․ support a finding of probable cause to arrest the accused for the offense charged.” Commonwealth v. Carter, 474 Mass. 624, 630 (2016), quoting Commonwealth v. Rex, 469 Mass. 36, 40 (2014). Probable cause requires “considerably less than that which is required to warrant a finding of guilt.” Carter, supra, quoting Commonwealth v. Levesque, 436 Mass. 443, 447 (2002). “It requires ‘sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed,’ not proof beyond a reasonable doubt.” Commonwealth v. Buono, 484 Mass. 351, 362 (2020), quoting Stirlacci, 483 Mass. at 780. Our review is de novo. See Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015). In order for an indictment to stand, the grand jury must be presented with evidence on each of the elements of the offense charged. See Commonwealth v. Hanright, 466 Mass. 303, 312 (2013).
a. Constructive possession. The defendant contends that the Commonwealth presented insufficient evidence to the grand jury to prove that he constructively possessed the drugs found in his bedroom and on the ground beneath his bedroom window. We are not persuaded. Possession of a controlled substance may be established by circumstantial evidence and reasonable inferences drawn from it. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). See also Commonwealth v. Ralph R., 100 Mass. App. Ct. 150, 163-164 (2021). The Commonwealth must present sufficient evidence to permit the grand jury to infer the defendants knowledge of the contraband, and his ability and intention to exercise dominion and control over it. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 (2018). While mere presence alone is insufficient, see Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 323 (2010), contraband found in proximity to the defendants personal effects, and the defendants relationship to the location within an apartment, may provide a sufficient nexus. See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411-413 (2013). See also Proia, supra at 831. Here, the circumstantial evidence and the reasonable inferences drawn therefrom establish a sufficient nexus between the defendant and the bedroom. Specifically, the search occurred in the early morning, and the defendant was found in a bedroom with personal mail, a digital scale, and his cell phone. Additionally, Rivera told Kaplan that there may be a firearm in a safe in her nephews bedroom. In this precise location, police officers located gun components. Contrast Montalvo, 76 Mass. App. Ct. at 323-327 (insufficient nexus between defendant and contraband found inside safe in room occupied by three men in apartment with little to no furniture or other indicia of occupancy).
Moreover, police officers observed that the window in the defendants bedroom was slightly ajar, and the air conditioner was tilted. On the ground outside the window, ATF agents discovered a bag that contained fentanyl heroin with a significant street value.
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On this record, it is a reasonable inference that an illicit substance with such a significant monetary value was not merely left on the sidewalk in the early morning hours, but rather was tossed out of the open window during the search. See, e.g., Commonwealth v. Bonner, 489 Mass. 268, 288 (2022) (reasonable to infer defendant possessed gun “and then threw it in the snow while he was being chased by police”); Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012) (reasonable to infer gun in middle of walkway had only recently landed there and “would not have remained there for long without being reported or removed”). In addition, photographs taken from outside the apartment building show that there were no screens on the windows in the defendants bedroom. Moreover, it is not uncommon for contraband to be thrown out a window or flushed down a toilet during a search or police encounter. See, e.g., Jefferson, supra (firearm apparently thrown from vehicle during police chase).
b. Integrity of the grand jury. The defendant next claims that through acts of commission and omission, the Commonwealth impaired the integrity of the grand jury, and therefore the indictments should be dismissed. The defendant bears the “heavy burden to show impairment of the grand jury.” Commonwealth v. Stevenson, 474 Mass. 372, 376 (2016). The defendant must prove that: “(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jurys decision to indict.” Commonwealth v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986). We agree with the motion judge that the defendant failed to meet his burden here and address each claim in turn.
First, the defendant claims that it was improper to show the grand jury photographs recovered from the defendants cell phone depicting him with a firearm because this was improper propensity evidence. We agree with the Commonwealth that this evidence was properly admitted to demonstrate the defendants knowledge of and access to firearms. See Commonwealth v. Watt, 484 Mass. 742, 749 (2020). Also, viewing the evidence in its totality, the photographs could not have made a difference in the jurys determination to indict the defendant. See Commonwealth v. Hall, 485 Mass. 145, 160 (2020). Moreover, the prosecutor gave a limiting instruction to the grand jury and reminded them the defendant was charged with possession of ammunition and not a firearm, and we presume that the grand jurors followed this instruction. See Commonwealth v. Brown, 479 Mass. 163, 173 (2018). See also Commonwealth v. Fernandes, 483 Mass. 1, 2 (2019), quoting Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922).
Second, the defendant argues that the prosecutor misled the grand jury about the number of floors in the apartment building. Kaplan was asked by a grand juror whether there were apartments above the defendants apartment. Kaplan initially said “[n]o,” but immediately corrected himself and said, “I apologize, I forget. Im not sure if theres a -- I thought that [the target apartment] might have been the highest level.” Kaplan was asked additional questions and remained equivocal about the number of floors. At the hearing on the motion to dismiss, it became evident that some portions of the apartment building had two floors, but that there was an additional floor above the defendants bedroom window. Kaplans testimony, in response to questions posed by grand jurors, does not amount to reckless or intentional conduct by the prosecutor to warrant dismissal of the indictments. See Commonwealth v. ODell, 392 Mass. 445, 447 (1984). The defendant has failed to meet his heavy burden. See Commonwealth v. Collado, 426 Mass. 675, 680 (1998), quoting Commonwealth v. Kelcourse, 404 Mass. 466, 468 (1989) (defendant must prove evidence was knowingly presented to grand jury or with reckless disregard to secure indictment and evidence probably influenced decision to indict).
Third, the defendant argues that the prosecutor improperly commented on the defendants guilt and therefore impaired the integrity of the grand jury. The prosecutor advised the grand jury that they had received all the evidence in the case, and that she would return in a few days to ask for indictments against the defendant. She then said, “Mr. Ortiz was the one who threw the [two hundred] grams outside the window.” A prosecutor cannot assert knowledge of a defendants guilt. See Commonwealth v. Niemic, 483 Mass. 571, 598 (2019). We agree that the prosecutors statement was improper, but we conclude that it did not impair the integrity of the grand jury, particularly with the myriad of evidence presented to the grand jury. See Commonwealth v. Ianello, 401 Mass. 197, 199 (1987) (prosecutors improper comment did not warrant dismissal in light of “abundance of evidence”). Moreover, nothing in the record suggests that the improper statement was said in order to secure an indictment. See ODell, 392 Mass. at 447.
Fourth, the defendant claims that it was improper to introduce jailhouse telephone calls, obtained pursuant to a grand jury subpoena, some of which were not translated from Spanish to English. He contends that this evidence implied that speaking Spanish was “sinister,” and was introduced to unfairly prejudice the defendant due to his race. At most, this evidence was irrelevant. Moreover, nothing in the record suggested a sinister or prejudicial reason for their introduction. Accordingly, we conclude that this evidence could not have influenced the grand jurys decision to indict. See Hall, 485 Mass. at 160.
Finally, the defendant contends that the prosecutor failed to present exculpatory evidence to the grand jury including that the defendants cell phone contained no evidence of drug distribution, the defendants location during the months preceding his arrest as monitored by a global positioning system (GPS), and that metadata related to the time and date of the photographs taken during the search was allegedly altered. The mere withholding of exculpatory evidence is not necessarily grounds for the dismissal of the indictments. See Commonwealth v. Rakes, 478 Mass. 22, 30 (2017), quoting Commonwealth v. Pina, 406 Mass. 540, 549 (1990). Dismissal is only warranted “if evidence was withheld in a manner that distorts the meaning of the evidence admitted, or if the exculpatory evidence was so powerful it would have severely undermined the credibility of an important witness or likely have led the grand jury not to indict.” Rakes, supra. Even if this evidence was exculpatory, the defendant has not met his burden to demonstrate that the grand jury might not have indicted him if they had known of it. The evidence from the defendants cell phone and GPS device was largely irrelevant. At most, this evidence may have established that the defendant was not the only person in the apartment who possessed drugs, something the grand jury knew from Kaplans testimony. The metadata of the date and time of the photographs was not hidden from the grand jury. Not only was it reasonable for the grand jurors to infer that the photographs were taken at the time of the search, but Kaplan also testified to just that.
Order denying motion to dismiss affirmed.
FOOTNOTES
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. To the extent that the defendant contends that the bag containing fentanyl heroin was thrown from a different window, this claim fails because we view the evidence in the light most favorable to the Commonwealth. See Stirlacci, 483 Mass. at 780.