COMMONWEALTH v. MANOR (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, the defendant was convicted of unlawful possession of ammunition.² On appeal, the defendant contends that (1) he was denied a fair trial when the prosecutor elicited evidence that was previously ruled inadmissible and (2) the evidence was insufficient to establish his constructive possession of the ammunition. We affirm.

Discussion. 1. Prosecutor's reference to excluded phrase. Prior to trial, the defendant moved to exclude the fact that the police were seeking the defendant in connection with a complaint of “domestic violence.” The prosecutor sought to reference a “[d]omestic disturbance.” The judge ruled that the parties could reference an “[a]lleged complaint about a crime.” On direct examination of a police witness, the prosecutor asked, “And is it fair to say that that was a call for a domestic disturbance in the area of Walcott Street in Dorchester?”³ The witness answered, “It is.” The incident was not further mentioned at trial.

The defendant now claims that the prosecutor's question resulted in prejudicial error. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016). The prosecutor's question referenced a generic “domestic disturbance,” rather than a “domestic violence” incident, which was defense counsel's stated concern. The mere mention of the word “domestic,” without ascribing the defendant's role in the incident, did not implicate a “prior bad act[ ],” as the defendant claims. Moreover, the jury's verdict, acquitting the defendant of two of the three charges, indicates that the jurors were not inflamed by the reference. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999) (acquittal of certain charges indicated that jurors were not improperly swayed). We conclude that the reference did not prejudice the defendant. See Commonwealth v. Place, 81 Mass. App. Ct. 229, 233 (2012) (error not prejudicial if it did not influence jury or had but slight effect). Compare Commonwealth v. Niemic, 483 Mass. 571, 595-596 (2019).

2. Sufficiency of the evidence. Even though his left thumbprint was recovered from the magazine containing the ammunition, the defendant claims that the evidence was insufficient to establish his possession of ammunition. Relying on cases where “the only identification evidence [was] the defendant's fingerprint at the crime scene,” Commonwealth v. Morris, 422 Mass. 254, 257 (1996), the defendant argues that the Commonwealth was required to prove that his fingerprint was placed on the magazine on the date of the charged offense.

Yet, the fingerprint was not the only evidence identifying the defendant as the perpetrator of the crime. A police officer identified the defendant as the person he saw on Walcott Street on the date of the offense. The officer testified that he asked the defendant if he could speak with him, and that the defendant took off running in response. The officer gave chase, following the defendant as he jumped over fences. When the defendant tripped and fell, the officer was able to catch up to him. The handgun containing the magazine with the defendant's thumbprint on it was later recovered about forty feet away. The evidence was sufficient to allow the jury to infer that the defendant discarded the handgun during the chase. See Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012) (constructive possession of weapon established where weapon recovered in path of police chase of defendants). The judge properly denied the defendant's motions for required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

Judgment affirmed.

FOOTNOTES

2.   The defendant was acquitted of charges of unlawful possession of a firearm and unlawful possession of a loaded firearm.

3.   The Commonwealth concedes that the prosecutor made a mistake in phrasing the question in this manner.