COMMONWEALTH vs. RICARDO ORTEGA.

IRELAND, J. A Superior Court jury convicted the defendant, Ricardo Ortega, of trafficking in heroin (G. L. c. 94C, § 32E [c] [1]). [Note 1] On appeal, the defendant contends that trial counsel was ineffective because he failed to file a motion to suppress evidence seized during the execution of a no-knock search warrant, and to call essential witnesses at trial. The defendant also claims that the prosecutor's redirect examination of a witness and closing argument created reversible error, and that the trial judge erred in denying his motions for required findings of not guilty. [Note 2] The Appeals Court upheld the conviction. Commonwealth v. Ortega, 59 Mass. App. Ct. 217 (2003). We granted the defendant's application for further appellate review. Because we conclude that the evidence, viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), was sufficient for the jury to find the defendant guilty beyond a reasonable doubt, trial counsel was not ineffective, and the prosecutor's questioning of a witness and closing argument were not improper, we affirm the judgment of the Superior Court.

Facts. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for discussion in connection with the specific issues raised. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). Beginning in the second week of January of 1999, Officer Troy Spirlet of the New Bedford police department began surveillance of the defendant at 280 Acushnet Avenue in New Bedford. During the next three weeks, Spirlet observed the defendant coming and going from the premises more than twenty-five times, often using a key to gain entry. [Note 3] On some occasions,

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Spirlet followed the defendant from 280 Acushnet Avenue to various locations and back.

On February 5, 1999, Spirlet obtained a no-knock, "any person present," search warrant for apartment no. 3H at 280 Acushnet Avenue that authorized the seizure of all drugs and materials related to the delivery or distribution of controlled substances. On February 6, 1999, at approximately 8 A.M., Spirlet and three detectives executed the warrant. In the apartment, the police found the defendant, a woman later identified as Kelly Rodrigues, and a small child on a mattress in the middle of the living room. [Note 4]

When the defendant saw the police, he ran down the hallway into the bathroom. After being subdued and handcuffed, the defendant was given the Miranda warnings. Although the defendant denied doing so (see note 6, infra), the police testified that he then told them that he wished to cooperate, showed them a hallway closet, and motioned his head toward a shoebox on a shelf in the closet. In the box, the police found a large amount of heroin and several items commonly used in drug operations, including a wooden ink stamp, mannitol (a substance used to dilute heroin), a sifter, a digital scale, a roll of tape, glassine packets, and small elastic bands. The police also seized 250 glassine packets of heroin on the counter of a service opening between the living room and the kitchen, twelve boxes of glassine packets, marijuana in the refrigerator, and more than $1,000 in cash. No drugs were found on the defendant's person.

During the course of the search, the police also found men's clothing and shoes in the bedroom closet, bottles of aftershave lotion in the bedroom, an envelope addressed to the defendant at the Acushnet Avenue address, other mail forwarded to him there, and bank statements in the defendant's name with a different address. The police found a rent receipt and utility bills in the name of Kelly Rodrigues. Additionally, the officers seized an identification card from the State of New York that had a photograph of the defendant and listed an address in New York City, and another document indicating that the defendant's address had been 120 Carverloop, Bronx, New York.

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At the time of the search, the defendant told the police that his address was 280 Acushnet Avenue, apartment no. 3H. On release from custody, the defendant signed a bail recognizance that listed 280 Acushnet Avenue as his residence. [Note 5] However, at trial, the main thrust of the defense was denial of any connection to the apartment where the drugs and other indicia of distribution were found. [Note 6] The defendant moved for required findings of not guilty after the close of the Commonwealth's evidence and, again, at the close of all the evidence. The judge denied both motions.

Discussion.

1. Denial of motions for required findings of not guilty. The defendant claims that the judge erred in denying his motions for required findings of not guilty, because the evidence established nothing more than his presence in the apartment and, thus, no trier of fact could have rationally concluded that the defendant had possession of the heroin found therein. We disagree. The

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defendant's contention concerns the weight and credibility of the evidence, "a matter wholly within the province of the jury." Commonwealth v. Martino, 412 Mass. 267, 272 (1992).

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we conclude that the Commonwealth presented sufficient evidence that the defendant had constructive possession of the heroin to warrant a verdict of guilty of trafficking in heroin. [Note 7] See Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). In the absence of actual possession, to prove constructive possession, the Commonwealth must present evidence that the defendant had both knowledge of the contraband and the ability and intention to exercise dominion and control over it. Commonwealth v. Garcia, 409 Mass. 675, 686 (1991), and cases cited. That proof may be accomplished by circumstantial evidence and "the reasonable -- not inescapable -- inferences to be drawn from it." Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 150 (1999). See Commonwealth v. Fisher, 433 Mass. 340, 342- 343 (2001), quoting Commonwealth v. Lydon, 413 Mass. 309, 312 (1992) (relevant inquiry is "whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding"). Although mere presence where drugs are discovered is not enough to support an inference of possession of the drugs, the defendant's presence, coupled with a " 'plus' factor," i.e., other incriminating evidence, may suffice. Commonwealth v. Velasquez, supra at 149.

The evidence in this case supplies the "plus factor" beyond mere presence to permit a finding that the defendant had constructive possession of the heroin found in the apartment. See id. at 150. Spirlet saw the defendant coming and going from the premises numerous times, sometimes using a key to enter. After the police entered the apartment, the defendant

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indicated that he wished to cooperate and nodded his head toward the closet where the shoebox was found. Furthermore, 250 glassine packets of heroin were found in plain view. See Commonwealth v. Garcia, supra at 687 (discovery of cocaine in plain view may have supported inference that defendants had knowledge of it); Commonwealth v. Almeida, 381 Mass. 420, 423 (1980) (finding gun in plain view supports inference that defendant would likely have seen it). Additionally, the police found men's clothing, shoes and aftershave lotion in the apartment, as well as mail addressed to the defendant at 280 Acushnet Avenue, apartment no. 3H, and mail forwarded to him there. Moreover, at the time of the search the defendant told the police he lived at the apartment, and later signed a bail slip that stated he lived there. Therefore, the judge did not err in denying the defendant's motions. [Note 8]

2. Ineffective assistance of counsel. For the defendant to prevail on his claim of ineffective assistance of counsel, we must conclude, first, that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and, second, that "it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (requiring "showing that better work might have accomplished something material for the defense"). A lawyer's "arguably reasoned tactical or strategic judgments," Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable" when made. Id., quoting Commonwealth v. Adams, 374 Mass. 722, 728-729 (1978). See Commonwealth v. Lynch, 439 Mass. 532, 537, cert. denied, 540 U.S. 1059 (2003); Commonwealth v. Amirault, 424 Mass. 618, 645 n.19 (1997) (defendant bound by counsel's tactical decisions); Commonwealth v. Florentino, 396 Mass. 689, 690 (1986)

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(judicial scrutiny of counsel's performance "highly deferential").

a. Failure to file motion to suppress. The defendant's contention that his trial counsel was ineffective for failing to file a motion to suppress evidence seized from the apartment, challenging the sufficiency of the affidavit in support of the no-knock search warrant, is without merit. We conclude that even if trial counsel had filed a motion to suppress evidence, alleging that the affidavit in support of the application for the no-knock warrant was insufficient, the motion would likely have been unsuccessful. Thus, trial counsel was not ineffective for failing to file the motion. [Note 9] Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) (attorney not ineffective for failing to file motion with minimal chance of success). See Commonwealth v. Purinton, 32 Mass. App. Ct. 640, 642-644 (1992) (counsel not ineffective for failure to take action that would have had little positive result).

A no-knock entry is permitted if the affidavit supporting the search warrant contains information from which a magistrate can conclude that there is probable cause to believe that the officers' safety would be endangered or the evidence sought would be destroyed. See Commonwealth v. Jimenez, 438 Mass. 213, 216 (2002), and cases cited; Commonwealth v. Scalise, 387 Mass. 413, 420 (1982). In making the probable cause determination, all the facts set forth in the affidavit must be examined together, rather than in isolation, taking into account the police officers' expertise and experience. Commonwealth v. Feijoo, 419 Mass. 486, 498 (1995). Commonwealth v. West, 55 Mass. App. Ct. 467, 470 (2002). See Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 44 (2002), quoting Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) (several factors "innocent of themselves," when combined, may amount to probable cause). However, the mere fact that drugs are involved is insufficient to justify a no-knock warrant. Commonwealth v. Scalise, supra at 421.

In his affidavit in support of the no-knock warrant, Officer Spirlet stated that he had extensive experience in narcotics

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investigations and the execution of numerous narcotics search warrants. See Commonwealth v. West, supra. Spirlet further explained that a confidential and reliable informant had told him that a man known to him as "Richie" [Note 10] was selling heroin by making deliveries to buyers or meeting customers near his apartment complex located at 280 Acushnet Avenue in New Bedford. [Note 11] Spirlet then described in detail a controlled buy of heroin made by the informant from the defendant, and stated that during the surveillance period (three to four weeks), he saw the defendant coming and going from 280 Acushnet Avenue "an unusual [number] of times," sometimes with other males then also under investigation for narcotics violations. [Note 12] Regarding imminent danger to the officers, the affidavit did not merely describe "general concerns present in the execution of any warrant authorizing a search for drugs," Commonwealth v. Jimenez, supra at 218, but instead detailed the defendant's and Rodrigues's assaultive history, including previous arrests for narcotics violations and several charges of assault and battery by means of a dangerous weapon. Commonwealth v. Allen, 28 Mass. App. Ct. 589, 595 (1990) (no-knock justified where defendant and friend were wanted for "violent crimes involving dangerous weapons"). See Commonwealth v. Cundriff, 382 Mass. 137, 147-148 (1980), cert. denied, 451 U.S. 973 (1981). As to the potential destruction of evidence, the affidavit set forth the following information from a reliable informant: the suspect did not allow customers to come into his apartment to avoid drawing attention to himself, and the suspect used several different vehicles, including rental vehicles, to make deliveries. Finally, the affidavit stated that the apartment was located on the third floor of a residential building, making it more likely that the occupants of the apartment would have advance

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knowledge of the officers' presence and purpose and would be able promptly to dispose of the evidence sought. See Commonwealth v. Jimenez, supra at 218, 220-221. Considering these facts and reasonable inferences drawn from them, we conclude that the affidavit was sufficient, and, therefore, it is highly unlikely that a motion to suppress would have succeeded. Trial counsel was not ineffective for failing to file "a motion with a minimal chance of success." Commonwealth v. Conceicao, supra at 264. See Breese v. Commonwealth, 415 Mass. 249, 256 (1993). [Note 13]

b. Failure to call additional witnesses. The defendant claims that his trial counsel was ineffective because he failed to call his current girl friend, his mother, and Kelly Rodrigues to corroborate his contention that he lived in New York, rather than at 280 Acushnet Avenue. [Note 14] However, ineffective assistance of counsel is not established merely by showing that the defendant's counsel did not call additional witnesses. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979); Commonwealth v. McMaster, 21 Mass. App. Ct. 722, 735 (1986). To prevail, the defendant must show that the purported testimony would have been relevant or helpful. Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 609-610 & n.23 (2000) (defendant must show that counsel's fault probably led to forfeiture of otherwise substantial ground of defense).

Here, the defendant failed to show that the prospective witnesses' testimony would have contributed materially to his defense or that trial counsel's failure to call them was manifestly unreasonable. See Commonwealth v. Britto, 433 Mass. 596, 602 (2001), and cases cited (decision to call witness is tactical judgment that amounts to ineffective assistance of counsel only if manifestly unreasonable when made). The defendant provided

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no affidavits from any of the prospective witnesses setting forth the testimony they would have given had they been called as witnesses. See Commonwealth v. Lynch, 439 Mass. 532, 538-539 & n.2 (2003); Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30 (1994) (without affidavits, no way to determine whether prospective witnesses' testimony would likely have made material difference). Counsel's failure to call additional witnesses did not likely deprive the defendant of an "otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). [Note 15]

3. Propriety of the prosecutor's conduct. a. Improper questioning of witness. The defendant first claims that the prosecutor improperly questioned Officer Troy Spirlet, potentially resulting in the defendant's conviction based on guilt by association. [Note 16] Commonwealth v. Szemetum, 3 Mass. App. Ct. 651,

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653-654 (1975) (person cannot be convicted based on guilt by association). See Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999). The prosecutor's question, bringing out the defendant's association with possible drug users, ought not to have been asked. [Note 17] Id. ("Associational evidence of that sort is suspect . . ."). However, in this case, unlike in Commonwealth v. Perry, 357 Mass. 149, 151 (1970), and Commonwealth v. Fancy, 349 Mass. 196, 200 (1965), the prosecution had other strong evidence of constructive possession and did not rely solely on the defendant's association with persons who had possession of contraband. In sum, there is no reversible error because only one question of this type was asked, the prosecutor did not bring up this issue in his closing statement, and there was other, ample evidence that the defendant had constructive possession of the heroin. Commonwealth v. Pagano, 47 Mass. App. Ct. 55, 60 (1999), cert. denied, 528 U.S. 1089 (2000). Commonwealth v. Gonzalez, supra.

b. The prosecutor's closing argument. The defendant further claims that the prosecutor improperly vouched for the credibility of the Commonwealth's witnesses and made statements as to what he would have done in the defendant's position. Because the defendant did not object to the portions of the prosecutor's closing argument he now challenges, we must determine whether any such errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Richmond, 379 Mass. 557, 562-563 & n.4 (1980); Commonwealth v. Roberts,

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378 Mass. 116, 122-123 (1979), S.C., 423 Mass. 17 (1996). We conclude that they did not.

The first of the challenged remarks, set forth below, did not amount to improper vouching for the credibility of the police officers. [Note 18] Improper vouching occurs if "an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). The prosecutor did neither. In this case, defense counsel raised the issue of credibility of the police witnesses' testimony, and it was proper for the prosecutor to argue from the evidence why these witnesses should be believed; the prosecutor did not vouch for their credibility. Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). See Commonwealth v. Murchison, 418 Mass. 58, 60 (1994) (witness credibility "is obviously a proper subject of comment"); Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) ("the prosecutor may make a fair response to an attack on the credibility of a government witness").

As to the remainder of the challenged remarks, set forth below, the prosecutor merely discussed the evidence, highlighting the difference between the testimony of the police officers and that of the defendant, and suggested that if the jury used their common sense, they would believe the officers' testimony. [Note 19]

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See Commonwealth v. Stote, 433 Mass. 19, 28 (2000) (prosecutors must limit scope of their closing arguments to facts in evidence and fair inferences from these facts); Commonwealth v. Murchison, supra. The prosecutor's comments were within the bounds of proper argument. [Note 20] See id.; Commonwealth v. Kozec, 399 Mass. 514, 521 (1987) ("It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved").

Conclusion.

For the foregoing reasons, we conclude that the judge properly denied the defendant's motions for required findings of not guilty. Furthermore, the defendant's trial counsel was not ineffective by failing to file a motion to suppress and by not calling certain witnesses. Finally, the prosecutor's redirect examination and closing argument were not improper.

Judgment affirmed.