COMMONWEALTH v. MARTINEZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of a high capacity loading device.² On appeal, the defendant argues that the trial evidence was insufficient to support the convictions, and that the evidence before the grand jury was legally insufficient to establish probable cause. He additionally argues that, in any event, errors in the jury instructions and in the prosecutor's closing argument entitle him to a new trial. We conclude that the defendant is not entitled to a judgment of acquittal or dismissal of any of the indictments, but that the judgments on the indictments charging unlawful possession of a firearm and unlawful possession of a loaded firearm must be vacated. We affirm the judgment on the charge of unlawful possession of a high capacity loading device.

Background. On the evening of June 6, 2014, the police received a report that a person had been shot on Taft Street in the Dorchester section of Boston.³ As a result, several police cars quickly descended on that residential street, which runs between Pleasant Street and Dorchester Avenue. A police officer who arrived at the scene “a minute or two” after getting the call that a person had been shot, got out of his cruiser, took “two to three steps,” and then “immediately” saw a handgun lying in plain view on the ground (on the street itself near the curb). The firearm's magazine was capable of holding sixteen rounds of ammunition, and it in fact held fifteen rounds when the gun was found. Two of the defendant's fingerprints were found on the magazine; no fingerprints were found on the outside of the gun.

The gun was found at one end of Taft Street, near its intersection with Pleasant Street. Halfway down Taft Street, about one hundred yards from where the gun was found, the police found evidence of recent beer drinking. Specifically, on the sidewalk, stairs, and stoop of 17 Taft Street, the police found several beer bottles, some partially full, and some empty. One bottle lay broken on the adjacent portion of the street, with liquid splattered on the ground. The defendant's fingerprints were found on several of the beer bottles. His car was found parked near 17 Taft Street, further away from where the gun was found. Additionally, the defendant's palm prints were found on the side of two other cars parked in between 17 Taft Street and where his own car was parked. The defendant lived on Annabel Street, which lies “probably less than a mile” from Taft Street.

During the trial, two different police detectives testified about how gun magazines commonly are loaded. They also demonstrated to the jury how to hold the magazine with one hand, while pushing bullets into the magazine, one by one, using the other hand. Part of the thrust of this testimony was that both thumbs are typically used in the loading process. However, there was no testimony, or other evidence, about which of the defendant's fingers caused the fingerprints found on the magazine (and, thus, there was no evidence that his thumbprints were found there). Nor was there evidence about where on the magazine the fingerprints were located.

Discussion. 1. Sufficiency of the evidence at trial. There was no eyewitness testimony that the defendant had been seen on Taft Street, or in possession of a gun. Rather, to tie the defendant to that street and to the gun found there, the Commonwealth relied on the fingerprint evidence and the presence of his car. The defendant argues that such evidence was insufficient as a matter of law to support a jury finding that he possessed the gun and the magazine. According to him, the evidence showed, at most, that at some uncertain point in time he once touched the magazine, and that on the night of June 6, 2014, he had been approximately one hundred yards from where the gun was found. The defendant argues that to infer from those facts beyond a reasonable doubt that he knowingly possessed the gun while knowing that it was loaded or that he knowingly possessed a high capacity magazine that he knew to be such, the jury would have to engage in improper “pil[ing] inference upon inference” (citation omitted). Corson v. Commonwealth, 428 Mass. 193, 197 (1998). Although we acknowledge that the issue is relatively close, we disagree.

In assessing the sufficiency of trial evidence, we of course view that evidence in the light most favorable to the Commonwealth, including drawing all reasonable inferences from the evidence in the Commonwealth's favor. See Commonwealth v. Buth, 480 Mass. 113, 116 (2018), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979); Commonwealth v. Rakes, 478 Mass. 22, 32 (2017). Viewing the evidence in that light, we ask whether the defendant can show that “no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Buth, supra.

We agree with the Commonwealth that jurors could have drawn a reasonable inference that whoever possessed the gun discarded it very close in time to its being discovered (given that a gun would not be expected to lie on a public street in plain view for long before it was either turned in or taken). Jurors similarly could have concluded that the defendant had taken part in the beer drinking in front of 17 Taft Street, an activity that suddenly was abandoned at about the same time the gun was discarded one hundred yards down the street. With the defendant's fingerprints having been found on the gun, albeit on a part of the gun that was detachable, jurors reasonably could have also concluded that the defendant was the one who had possessed the gun and then discarded it.⁴ Cf. Commonwealth v. Montgomery, 23 Mass. App. Ct. 909, 910 (1986) (possession of magazine that fits nearby gun implies possession of gun). Moreover, with the defendant's fingerprints found on the loaded magazine, there was evidence to support the Commonwealth's contention that the defendant knew that the gun was loaded. Compare Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200-201 (2018) (circumstantial evidence sufficient to show that defendant knew firearm was loaded where firearm was found in defendant's waistband and defendant had familiarity with firearms, but conviction reversed on other grounds), with Commonwealth v. Brown, 479 Mass. 600, 601-602 (2018) (conviction of knowing possession of a loaded firearm properly vacated where no evidence was presented to suggest that defendant driver knew firearm, which passenger claimed belonged to her, was loaded). Finally, the prominent numerals engraved on the magazine provided ample evidence upon which jurors reasonably could have inferred that someone holding the magazine would have known that the magazine held over ten rounds of ammunition (qualifying it as a high capacity loading device). See Commonwealth v. Cassidy, 479 Mass. 527, 537 (2018) (knowledge that magazine could hold more than ten bullets can be shown through circumstantial proof).

We acknowledge the general principle that a case should not be submitted to a jury if it rests solely on a defendant's fingerprint having been found at the scene of the crime, unless the prosecution can also prove that the fingerprint was placed during the commission of the crime. See Commonwealth v. Morris, 422 Mass. 254, 257 (1996). Here, there was significantly more evidence than the mere presence of the defendant's fingerprints at the scene. The crimes here were possessory offenses, and the defendant's fingerprints were found on the very contraband at issue. Moreover, the cases indicate that where fingerprints were found on a personal item left at the scene -- as distinct from being found on a permanent fixture there -- the key fact-finding inquiry presented typically is assessing when the item was discarded, not when the fingerprints were imprinted. Compare Commonwealth v. French, 476 Mass. 1023, 1024-1025 (2017) (fingerprint found on window pane at scene of break-in held insufficient to sustain conviction of breaking and entering without some corroborating evidence as to when fingerprint was left), with Commonwealth v. Pickens, 57 Mass. App. Ct. 926, 927 (2003) (where fingerprint on discarded lottery ticket tied defendant to scene of rape, and there was ample other identification evidence, Commonwealth did not have to show when fingerprint was imprinted on ticket). As discussed above, the jury could infer that the defendant had been at the scene in the very same period in which the gun was discarded. See Commonwealth v. Bin, 480 Mass. 665, 674-676 (2018) (where cell phone data placed defendant along path assailants had taken, and a hat with defendant's DNA on it was found outside apartment where victim was murdered, evidence held sufficient that defendant participated in crime).

None of this is to suggest that one could not describe hypothetical scenarios under which the defendant might have placed his fingerprints on the magazine without having committed the charged offenses. However, we need not rule out every possibility to find the evidence sufficient. Commonwealth v. Morgan, 449 Mass. 343, 349 (2007) (inferences supporting conviction “need only be reasonable and possible[, not] necessary or inescapable” [citation omitted] ). The question is whether “any” rational factfinder could have found the defendant guilty beyond a reasonable doubt, Latimore, 378 Mass. at 677, and we conclude that on this evidence, such a fact finder could do so.

2. The defendant's McCarthy motion. The defendant separately argues that the evidence before the grand jury was insufficient to establish probable cause, and that his motion to dismiss those indictments therefore should have been dismissed pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982). This argument requires little discussion, because the evidence heard by the grand jury was similar to what was presented at trial,⁵ and the standard that the Commonwealth had to meet (probable cause) is significantly less exacting than that applied at trial (proof beyond a reasonable doubt). See Rakes, 478 Mass. at 29, quoting McCarthy, supra at 163 (“Probable cause requires only evidence ‘sufficient to warrant a reasonably prudent [person] in believing that the [accused] had committed’ the offense”). The defendant's McCarthy motion properly was denied.

3. Jury instruction. With respect to the conviction of unlawful possession of a loaded firearm, the defendant points out that the judge erred by failing to instruct the jury that the Commonwealth had to prove that the defendant knew that the firearm was loaded. See Brown, 479 Mass. at 601-602.⁶ No objection was lodged, and our review therefore is limited to whether the instructional error caused a substantial risk of a miscarriage of justice. Commonwealth v. Lutskov, 480 Mass. 575, 581 (2018), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Our resolution of this issue is controlled by our recent decision in Commonwealth v. Woods, 94 Mass. App. Ct. 761, 768 (2019). As in Woods, the jury here separately convicted the defendant of unlawful possession of the ammunition found inside of a firearm after properly having been instructed that he had to know he was in possession of the ammunition. See note 1, supra. “Because the jury found that the defendant knowingly possessed the ammunition within the firearm, the failure to instruct the jury that they were required to find that he knew the handgun was loaded with ammunition in order to return a verdict of guilty on the charge of possession of a loaded firearm was of no significance.” Woods, supra.

4. Closing argument. As noted, there was no trial testimony as to which of the defendant's fingers caused the two identified fingerprints found on the magazine. Nevertheless, during his closing argument, the prosecutor referred to these fingerprints as being from the defendant's thumbs. In fact, all told, the prosecutor made ten separate references to “thumbprints” or “thumbs” in his closing, and eight of those referred specifically to the defendant's thumbprints.⁷ Harkening back to the testimony about how thumbs are used to load magazines, he argued that it was the presence of the two thumbprints that proved beyond a reasonable doubt that the defendant not only possessed the magazine, but that he held it while loading the firearm:

“Is there reasonable doubt in this case that [the defendant] held this magazine in the form required to load it, and that it was in fact loaded on that street inside that firearm, that Smith and Wesson 9 millimeter? He didn't have his fingers on it like he picked it up showing anybody. And even then, his prints would've been on it. But here he has his thumbprints. So we know he possessed this high-capacity magazine. But with both thumbs on it and what you saw from those witnesses as to one loads it, I would say it's reasonable to a moral certainty that he held it to load it.”

The defendant did not object to the prosecutor's closing, and our review therefore again is limited to whether the references to facts not in evidence caused a substantial risk of a miscarriage of justice. See Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989).

We conclude that the “thumbprint” references did not cause any significant prejudice to the defendant with respect to the indictment for unlawful possession of a high capacity loading device. Based on the presence of fingerprints on the magazine, the jury readily could infer that the defendant had possessed the magazine by holding it in his hand.⁸ His conviction of possessing the magazine did not depend on how he specifically may have been holding it (e.g., whether he was holding it so as to load it) or whether he was the one who had placed it in the gun. In these circumstances, we do not view the prosecutor's statements about what the evidence showed about how he was holding the magazine to be of material consequence.

The same cannot reasonably be said about the convictions of unlawful possession of a firearm and unlawful possession of a loaded firearm. With respect to those convictions, the prosecutor's argument that the evidence showed that the defendant had been loading the magazine into the gun provided key potential support for the Commonwealth's claim that he had possessed the gun, not merely that he at one time had handled the magazine in some fashion. The prosecutor's referring to the fingerprints as the defendant's two thumbprints -- a fact indisputably not in evidence -- was not an error made in passing. Contrast Commonwealth v. Walters, 472 Mass. 680, 703-704 (2015) (where prosecutor's misstatement of trial evidence was done in passing, misstatement did not create a substantial risk of miscarriage of justice). Rather, the prosecutor's references to thumbprints were pervasive, and they served an integral role in supporting the prosecutor's argument that the defendant possessed the firearm into which the magazine was inserted after it was loaded. Given that the evidence that the defendant possessed the gun, while sufficient, was not overwhelming, we conclude that the prosecutor's misstatement of the evidence could well have affected the jury's verdict on the two convictions that were based on the defendant possessing the gun, and that it therefore caused a substantial risk of a miscarriage of justice. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016-1017 (2016).

Disposition. We affirm the judgment on the indictment charging the defendant with unlawful possession of a high capacity loading device. We vacate the judgments on the indictments charging unlawful possession of a firearm and unlawful possession of a loaded firearm, and those verdicts are set aside.⁹

So ordered.

Affirmed in part; vacated in part and set aside

FOOTNOTES

2.   An additional conviction of unlawful possession of ammunition was dismissed at sentencing as duplicative of the loaded firearm conviction. The jury acquitted the defendant of possession of a firearm with a defaced serial number.

3.   In fact, the victim, who was shot at close range while riding a motorcycle, died. The fact that someone was murdered was not admitted at trial. The jury were informed during the Commonwealth's opening statement that the firearm the defendant was charged with possessing was not the firearm used in the shooting, and -- for all the jury heard -- the defendant's alleged possession of the firearm was unrelated to the shooting.

4.   The Commonwealth's theory was that the defendant and others who were drinking beer abandoned this when it became obvious that police would be responding to the shooting and that the defendant ran in the direction of his home (away from his car), discarding his gun along the way.

5.   Thus, for example, the grand jury heard that the defendant's fingerprints were found on the gun's magazine, and that the gun was found one hundred yards from beer bottles that also bore the defendant's fingerprints. On one point, the grand jury heard more evidence than was admitted at trial; the grand jury heard testimony that prior to the shooting, a group of individuals was observed drinking where the beer bottles were found. Such testimony was elicited at trial, but then stricken after the defendant objected.

6.   The trial here occurred after our decision in Brown had been published and the Supreme Judicial Court had taken the case on further appellate review, but before that court issued its own decision. See Commonwealth v. Brown, 91 Mass. App. Ct. 286 (2017) (superseded by Brown, 479 Mass. at 601).

7.   To be clear, we are not suggesting that the prosecutor was acting in bad faith. It appears that the prosecutor simply lost track of the fact that the fingerprint report that provided detail about the prints that were found was excluded from evidence.

8.   As the defendant points out, it is, of course, theoretically possible that the defendant could have placed fingerprints on the magazine without holding it in his hand. As noted, however, we need not rule out every theoretical possibility to find an inference reasonable.

9.   In any retrial, the Commonwealth is free to pursue a prosecution of the unlawful possession of ammunition indictment, which was dismissed only because it was duplicative of a conviction that we are now vacating.