COMMONWEALTH vs. JAMAREE REID.

DUFFLY, J. Following a raid of an apartment where liquor was being sold to partygoers, the defendant was arrested and thereafter convicted by a Boston Municipal Court jury of several

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offenses. [Note 1] This appeal is from his convictions for maintaining a nuisance, G. L. c. 139, §§ 14 and 15, and aiding or permitting a nuisance, G. L. c. 139, § 20. [Note 2] The defendant argues that (1) the evidence was insufficient to support convictions of maintaining a nuisance and aiding in the maintenance of a nuisance; (2) convictions of both maintaining a nuisance and aiding in the maintenance of a nuisance violate his right against double jeopardy; (3) the judge failed properly to instruct the jury on the two offenses; and (4) the prosecutor's closing argument was improper and resulted in a substantial risk of a miscarriage of justice. Because there was insufficient evidence to support conviction of aiding in the maintenance of a nuisance, we reverse the judgment as to that conviction; we affirm the judgment convicting him of maintaining a nuisance.

Facts. The jury could have found the following facts. At around 3:20 A.M. on February 12, 2005, the Boston police received information that there was a party taking place at 544 Harvard Street in the Mattapan section of Boston. [Note 3] The party had begun at about 2 A.M. Two officers dressed in plain clothes, Tabitha Coleman and Cynthia Brewington, were dropped off near the address, while other officers remained behind to await for a prearranged signal. The officers were part of a sting operation known as "Operation Party Time," created in response to the problem of after-hours parties. The officers proceeded to the Harvard Street address where they stood in line waiting to enter the

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second-floor apartment through a side door. A woman, later identified as Michelle Thorpe, "pat frisked" those seeking entrance and collected money from them. Officer Coleman paid Thorpe the entry fee with a marked twenty-dollar bill. A member of the Boston police force had, a week earlier, broken up a party at the apartment and had warned Thorpe against throwing such after-hours parties.

The officers proceeded upstairs and entered a doorway that led to the kitchen area where they saw people buying alcoholic beverages. There were between 100 to 125 people in the kitchen. The defendant was serving alcohol out of a pantry, the entrance to which was barricaded by a table that prevented anyone else from entering that space. Officer Coleman joined a line with others purchasing liquor; when Officer Coleman reached the defendant, she purchased two beers from him using another marked twenty-dollar bill. The defendant retrieved the beers from a refrigerator in the pantry, made drinks at the table, sold drinks, and made change for people from money he kept in a drawer in the table. Officer Brewington returned to the first-floor entrance to observe Thorpe while Officer Coleman stayed in the kitchen. The defendant was the only person in the pantry when the officer made the purchases and no one else was seen entering the pantry while the officers were at the party.

At some point, the officers signaled the waiting Boston police officers, who then raided the party. On their arrival at the scene, the officers observed traffic congestion on the street and cars parked on sidewalks, double-parked on the street, and blocking hydrants and crosswalks. Detective Randall Halstead entered the apartment and observed the defendant, who matched Officer Coleman's description of the man who had sold beer to her, standing alone in the kitchen area. The defendant told Detective Halstead that he was staying at his girlfriend Michelle's apartment and was giving a party. For his safety, Detective Halstead pat frisked the defendant and found in the defendant's pants pocket approximately $531, including the marked twenty-dollar bill that had been used to purchase beer, whereupon the defendant was arrested. [Note 4]

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Discussion. 1. Maintaining the nuisance. a. Sufficiency of the evidence. The defendant first argues that the evidence was insufficient to support his conviction under G. L. c. 139, § 15, which penalizes "[w]hoever keeps or maintains [a] common nuisance." A common nuisance is defined by G. L. c. 139, § 14, as amended by St. 1934, c. 328, § 10, as a "building, place or tenement . . . which is used for the illegal keeping or sale of alcoholic beverages."

A person may be found criminally liable under §§ 14 and 15 if the evidence establishes that (1) he kept or maintained a place, (2) for an unlawful purpose (such as keeping for sale, or selling, alcoholic beverages), and (3) the place was used, over some period of time, for such illegal purpose (by the defendant or others).

To "keep or maintain" a nuisance imports the concept of control by the defendant over the place of the nuisance, as well as the requirement that the illegal activities that render the premises a common nuisance take place over time. "To 'keep' may, in its ordinary and more obvious sense, apply only to one who exercises control or proprietorship of the building or place used." Commonwealth v. Kimball, 105 Mass. 465, 467 (1870). [Note 5] "[T]he

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government must prove that the defendant kept and maintained the tenement for the sale of intoxicating liquor . . . ." Commonwealth v. Merriam, 148 Mass. 425, 427 (1889) (defendant "was the owner or in control of the premises" where he sold liquor, was on the premises when others sold liquor, had keys to some rooms, and paid most bills of the business). See Commonwealth v. Tabor, 138 Mass. 496, 497 (1885) (Holmes, J.) ("It was enough to prove one or two illegal sales, if the jury drew the inference that the defendant kept and used the building for the purpose of such sales"); Commonwealth v. Murray, 138 Mass. 508, 510 (1885) (Holmes, J.) (same); Commonwealth v. Baker, 155 Mass. 287 (1892) (jury correctly instructed on a complaint for keeping and maintaining a tenement for illegal gambling that the Commonwealth must prove "during some substantial portion of the time alleged, the defendant kept the tenement in question, and that during such period it was with his consent resorted to and used for illegal gaming"). [Note 6] "The distinction between acts which amount to maintaining the nuisance, and those which do not, is one of degree. We do not think that the misdemeanor of unlawfully selling, committed by a servant, can be said as a matter of law to amount to maintaining a nuisance, unless he has assumed a temporary control of the premises, or in some other way emerged from his subordinate position to aid directly in maintaining it." Commonwealth v. Churchill, 136 Mass. 148, 151 (1883).

The offense is the keeping or maintaining of the nuisance. "The criminal intent involved in the commission of this crime is the intent to keep the tenement, knowing and suffering it to be a common nuisance. It is immaterial who does the other

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unlawful acts which make it a common nuisance." Commonwealth v. Walsh, 165 Mass. 62, 66 (1895). The sale of illegal liquor (by the defendant or someone else) may provide evidence of an element of the crime -- that the premises are maintained as a nuisance -- but the illegal sale of liquor does not, without more, support conviction under G. L. c. 139, §§ 14 and 15. [Note 7] See Commonwealth v. Galligan, 144 Mass. 171, 173-174 (1887); Commonwealth v. Burns, 167 Mass. 374, 379 (1897).

Thus, in this case, in order to convict the defendant for maintaining a common nuisance under §§ 14 and 15, the Commonwealth was required to prove that during the time that the apartment was under the defendant's control, it was maintained by him for the purpose of conducting therein a proscribed activity (in this case, the illegal sale of alcoholic beverages).

The evidence viewed in the light most favorable to the Commonwealth, supports the conviction. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). From the evidence a reasonable jury could infer that the defendant was living in the apartment with his girlfriend at the time of the party and that he was the person in charge of giving the party where liquor was sold; he alone was engaged in the sale of alcoholic beverages to numerous partygoers inside the apartment over a period of at least one and one-half hours. This was evidence from which a jury could reasonably have inferred that the defendant had the requisite control over the premises during a period when he was engaged in the illegal sale of alcohol to others on the premises, and this in turn supported a finding that the defendant was maintaining a nuisance.

b. Jury instruction. The defendant argues for the first time on appeal that the jury were not instructed as to "what evidence would show that the house was 'under [the defendant's] control.' " [Note 8] The judge instructed that the Commonwealth was required to prove:

"First, that the building was being used for the illegal

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keeping or sale of alcoholic beverages. Second, that the defendant owned or maintained the building at the time of the illegal keeping of the sale of such alcoholic beverages."

Limiting our discussion to the point now raised by the defendant, this statement is not erroneous. As our cases have indicated, the concept of "maintaining a nuisance" imports the concept of control over the place in which the nuisance occurs. The thrust of the defense, and the focus of the defendant's closing argument, was that the defendant was a guest in his girlfriend's apartment and had no control over the party. We think the jury well understood that the Commonwealth needed to prove beyond a reasonable doubt that, during the time frame in which he was selling alcohol to partygoers, the defendant exercised control over the premises. Even if the instruction might have been clearer on the question of control, "[t]he defendant did not object to any of these instructions. In considering whether the shortcomings of the judge's instructions, when viewed in the context of the instructions as a whole, created a substantial risk of a miscarriage of justice, we are cognizant of the strength of the evidence against this defendant." Commonwealth v. Whitman, 430 Mass. 746, 755 (2000). [Note 9]

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2. Aiding or permitting maintenance of a nuisance. Among other acts, G. L. c. 139, § 20, punishes a person who knowingly permits premises, while under his control, to be used for the illegal sale of alcoholic beverages. [Note 10]

Under this provision, it is not enough to establish that the defendant had control over the premises and that the premises were used for the illegal sale of alcohol, as the Commonwealth argues. Although there was evidence that the defendant himself sold alcohol, there is here no evidence that the defendant permitted others to do so. The term "to permit" does not support a construction that the defendant, in selling liquor, was permitting himself to do so. Section 20 "was intended to reach the case of a landlord who, under the preceding section, has the right to make entry upon the premises and prevent the illegal use; and, by construction, it implies that the building or tenement must be used for the illegal purpose by some third person holding under the landlord." Commonwealth v. Bartley, 138 Mass. 181, 182 (1884).

Justice Holmes in Commonwealth v. Churchill, 136 Mass. at 149, observed the difference between the statutory prohibitions against (1) the unlawful sale of liquor, (2) "maintaining the nuisance," and (3) "aiding in the maintenance of such nuisance." Comparing the latter two offences, he noted that under the statutory scheme, "one who knowingly [rents] a building owned by him for the purpose mentioned shall be deemed guilty, not of maintaining such nuisance, but of 'aiding in the maintenance of such nuisance.' " Ibid. "[I]t is only by somewhat refined and

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technical reasoning that one who [permits a tenement to be used by] another, who intends to and does use it for the illegal sale of liquor, can be said himself to keep or maintain it for that purpose." Id. at 150. That the statute has since been amended to omit the phrase "aiding in the maintenance of such nuisance" in 1920 [Note 11] (although retaining it in the title), does not detract from the apparent intent of the Legislature to create an offense, as defined in § 20, that is distinct from that of maintaining a nuisance, as defined in G. L. c. 139, §§ 14 and 15. [Note 12]

To be convicted of "knowingly permit[ing] such premises, while under his control, to be used for [illegal sale of alcoholic beverages]" under § 20 required proof that the premises were under the defendant's control and that he permitted another to use the premises for the illegal sale of alcohol. There is no evidence that the defendant permitted anyone else to illegally sell alcohol from the premises. Both officers testified that the defendant was the "only one" selling alcohol in the pantry area of the apartment and that no one else was with the defendant in the pantry. [Note 13] The evidence was thus insufficient to support the defendant's conviction under c. 139, § 20. [Note 14]

3. Prosecutor's closing remarks. The defendant did not object

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at trial that the prosecutor's remarks during closing argument improperly shifted the burden of proof to the defendant and appealed to the jury's emotions. "[W]e review to determine if any error created a substantial [risk] of a miscarriage of justice." Commonwealth v. Montez, 450 Mass. 736, 747 (2008). "Under that standard, '[w]e analyze the remarks in light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.' " Commonwealth v. Delaney, 425 Mass. 587, 599 (1997), cert. denied, 522 U.S. 1058 (1998), quoting from Commonwealth v. Marquetty, 416 Mass. 445, 450 (1993).

The defendant claims that the prosecutor improperly shifted the burden of proof to the defendant by commenting that certain evidence was "undisputed." [Note 15] "References to material facts as uncontradicted or uncontested invariably approach the border of the forbidden territory of speculation regarding the absence of testimony by the defendant." Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 366 (2001). However, "[a] prosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case, even though he may, in so doing, prompt some collateral or passing reflection on the fact that the defendant declined to testify." Commonwealth v. Feroli, 407 Mass. 405, 409 (1990). We examine the entire argument to determine whether, in context, the challenged remarks are "directed more at the general weakness of [the defendant's] defense than toward the defendant's own failure to testify." Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert. denied, 446 U.S. 955 (1980). [Note 16]

The remarks were directed at the general weakness of the

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defendant's case and were not the focal point of the prosecutor's closing arguments. This is not a case where the defendant "himself is the only person who can contradict the otherwise uncontested evidence, [such that] the reference to the evidence as undisputed necessarily invokes consideration of the fact that the defendant did not present contrary information." Commonwealth v. Buzzell, supra at 367. Furthermore, the judge's specific and repeated instructions that the "burden of proof never shifts" to the defendant mitigated any potential prejudice. [Note 17] See Commonwealth v. Montez, supra at 748.

The defendant next claims that the prosecutor improperly appealed to the jurors' emotions when he said, "This is not just a party. 3:30 in the morning in a residential neighborhood in a Mattapan-Dorchester section of Boston. This is not just a party." Prosecutors may not appeal to jury sympathy or prejudices in order "to sweep jurors beyond a fair and calm consideration of the evidence." Commonwealth v. Graziano, 368 Mass. 325, 332 (1975), quoting from Commonwealth v. Perry, 254 Mass. 520, 531 (1926). Here, the prosecutor's characterization of the size, location, and time of the party was a proper summary of the evidence. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978); Commonwealth v. Kent K., 427 Mass. 754, 759 n.6 (1998). In context, the remarks did not create a substantial risk of a miscarriage of justice.

Conclusion. The defendant's judgment of conviction under G. L. c. 139, § 20, is reversed; all other judgments are affirmed.

So ordered.