COMMONWEALTH v. JAMAINE BURTON (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a Superior Court judge revoking his probation. The judge concluded that the defendant violated the conditions of his probation by committing a new criminal offense and by violating his curfew. On appeal, the defendant challenges the sufficiency of the evidence that he committed a new offense by jointly or constructively possessing a firearm. We affirm.

Background. In 2011, the defendant pleaded guilty to multiple charges in two cases and was sentenced to various periods of incarceration followed by probation.¹ In 2018, the defendant was serving probation when he was arrested for new firearm offenses. A notice of alleged probation violation was filed on the basis that the defendant committed new firearm offenses and violated his curfew order, and a final probation surrender hearing was held on October 7, 2019. Massachusetts State Trooper Devon Surian testified at the hearing. We summarize the testimony as follows.

Shortly after 11:30 P.M. on November 24, 2018, the defendant was a passenger in a car that was pulled over by the trooper for having windows that appeared the be tinted in violation of the legal limit. The driver was asked to get out of the car and eventually was arrested.

After arresting the driver, the trooper informed the defendant that the vehicle would be towed and asked him to get out of the vehicle so the trooper could conduct an inventory search. During the search, the trooper noticed that the driver's seat had been reclined as far back as possible, almost laying completely flat. The position of the seat was notable to the trooper because when he first spoke with the driver, the driver was in an upright position, and it would have been “impossible to drive” if the seat had been laying completely flat.² The trooper proceeded to the rear driver's side door and saw a firearm on the center of the rear passenger's floormat, underneath the almost horizontal driver's seat.³ The defendant was then placed under arrest.

On October 11, 2019, the judge found the defendant to be in violation of his probation due to the new firearm offenses and for failing to abide by the instructed 8 P.M. curfew. The judge revoked the defendant's probation and sentenced him to two and one-half years in the house of correction.

Discussion. We review an order revoking probation for an abuse of discretion, see Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014), and to determine “whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the probationer] had violated the specified conditions of his probation,” Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). Where “revocation of probation [is] based upon a violation of criminal law, 'there is no prerequisite that the probationer be convicted.'” Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001), quoting Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). “The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence.” Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).

The defendant contends that the judge abused her discretion because there was insufficient evidence to support a finding that he constructively possessed the firearm recovered from behind the driver's seat. Specifically, he asserts that the judge erroneously relied only on the fact that he was within reaching distance of the firearm. We disagree.

“To establish constructive possession, the Commonwealth must prove a defendant's (a) knowledge of the contraband; (b) ability to control it; and (c) intention to exercise control over it.” Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013). Presence in a vehicle containing a firearm is not enough to prove constructive possession, but presence together with “other incriminating evidence, will serve to tip the scale in favor of sufficiency” (quotation and citation omitted). Commonwealth v. Albano, 373 Mass. 132, 134 (1977). See Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989) (circumstantial evidence and permissible inferences drawn therefrom can prove constructive possession).

Here, while the trooper was dealing with the driver, the defendant was alone in the vehicle, obscured by heavily tinted windows and within reaching distance of the firearm. Because the trooper had seen the driver sitting upright before the exit order, the evidence was sufficient for the judge to find by a preponderance of the evidence that the defendant had knowledge of the firearm, reclined the seat to hide it, and had the ability and intention to exercise control over it, thereby warranting a finding that the defendant violated his probation. See Hill, 52 Mass. App. Ct. at 154.⁴ Here, the judge relied on “observations of location of seat and gun” and “location of [defendant] within car.” These credibility determinations were for the judge. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (“we do not disturb the judge's credibility determinations as fact finder”). We discern no error.

Order revoking probation affirmed.

FOOTNOTES

1.   On docket no. 1084CR10755, the defendant pleaded guilty to perjury in violation of G. L. c. 268, § 1, and intimidation of a witness in violation of G. L. c. 268, § 13B. He was sentenced to eighteen months of incarceration on one charge, followed by two years of probation on the other charge. On docket no. 1184CR10297, the defendant pleaded guilty to two counts of assault with a dangerous weapon in violation of G. L. c. 265, § 15B (b); carrying a firearm without a license, second offense, in violation of G. L. c. 269, § 10 (a), (d); possession of a large capacity firearm in violation of G. L. c. 269, § 10 (m); and carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n). He was sentenced to concurrent terms of incarceration, the longer of which was for three to five years, for two of the charges, followed by two years of probation for the other three charges.

2.   The trooper testified at the violation hearing that he did not describe the seat position in his written police report. Matters of credibility are for the hearing judge. See Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 50 (2002).

3.   Fingerprints found on the firearm did not match either the defendant or driver, neither of whom were the registered owner of the vehicle.

4.   Given our disposition, we need not reach the defendant's argument that his curfew violation was “relatively minor” and would not have supported a term of incarceration.