COMMONWEALTH v. JENSEN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant of carrying a firearm without a license, possessing ammunition without a firearm identification card, and carrying a loaded firearm without a license. On appeal the defendant argues that his conviction of carrying a loaded firearm must be reversed because the Commonwealth failed to prove that the firearm was loaded and that he knew it was loaded. He also argues that he is entitled to a new trial on all charges because of the manner in which a factual stipulation was conveyed to the jury. We affirm.

Background. We recount the facts in the light most favorable to the Commonwealth.

On the evening of February 9, 2018, the defendant, his coworker, and his coworker's girlfriend, Michelle Hight, were at a bar in Worcester. At some point in the evening, a man touched Hight in an inappropriate way. When the man left the bar, the defendant followed him. A few moments later, the defendant returned and handed Hight a bullet, saying, “[T]his is for you.” Hight placed the bullet in her pocket.

Shortly thereafter, police vehicles arrived outside the bar. The defendant asked whether there was a back exit, but Hight knew only of the two front exits. The defendant jumped up, placed a firearm on Hight's lap, and left through one of the front doors. Hight did not look at the firearm, but “felt it” and immediately put it in her purse.

After officers entered the bar and began asking people inside for identification, Hight approached Worcester Police Sergeant Thomas Needham and said, “I have something to show you, I think it's what you guys are looking for.” Hight was holding her purse, and Needham asked that she put it on a chair. Needham then looked in the purse and saw “what appeared to be a functioning firearm.” While Needham was unable to determine whether the firearm was loaded by looking at it, both he and Worcester Police Officer Ilirjan Jano observed that there was a magazine in the firearm. Hight also turned over the bullet -- described by Needham as a “.380 caliber projectile, unspent” -- that the defendant had given her.

The officers left Hight's purse, with the firearm in it, on the chair until the crime scene unit arrived at the bar to secure the evidence.² After photographing the inside of the purse, officers from the crime scene unit recovered the firearm. The defendant was apprehended outside the bar.

Massachusetts State Trooper David Hughes, assigned to the firearms identification section of the State Police, testified that a firearm and three live cartridges were submitted in connection with the case.³ Hughes test fired the firearm with one of the rounds and determined that the firearm “was a .380 caliber Davis manufactured P380 model semi-automatic pistol” and the items of ammunition “were .380 auto caliber live cartridges.” At trial Hughes identified the firearm in evidence as the one he fired, two cartridges in a manila envelope as “two of the three live cartridges that were submitted with this case,” and a third cartridge in another envelope as “the third live round that was submitted ․ that [he] actually used to test fire the firearm.”

Hight and Needham were also asked to identify the items of ammunition. Hight testified that “[o]ne of those would be one of the bullets that [the defendant] had handed to me and said that was for me.” Needham testified that the items “resemble[d] the bullet that ․ was shown to me by Ms. Hight.” Finally, Jano identified the firearm in evidence as the one he had seen in Hight's purse and a magazine in evidence as the one he had seen in the firearm.

Discussion. 1. Sufficiency. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), we evaluate the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the elements of the crime beyond a reasonable doubt. “[C]ircumstantial evidence is sufficient to establish guilt beyond a reasonable doubt.” Commonwealth v. Miranda, 458 Mass. 100, 113 (2010), cert. denied, 565 U.S. 1013 (2011). “Inferences drawn from circumstantial evidence ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Webster, 480 Mass. 161, 167 (2018), quoting Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).

The defendant argues that the evidence was insufficient to sustain his conviction of carrying a loaded firearm because there was no direct testimony that the firearm was loaded. As he observes, none of the officers at the scene testified that the firearm was loaded, nor did any witness testify that the firearm was loaded before it was submitted for test firing. We agree with the defendant that it would have imposed little burden on the Commonwealth to present such evidence.

Nonetheless, we conclude that the circumstantial evidence, and the reasonable and possible inferences therefrom, were sufficient to prove this element of the offense. As the evidence established, Hight turned over one .380 caliber bullet to the police. There was a magazine in the firearm, which was secured by officers from the crime scene unit. The firearm and three .380 caliber live cartridges were then submitted for test firing in connection with the case. Based on this evidence, the jury could reasonably have inferred that one of the three cartridges was the one that Hight turned over, and the other two were recovered from the magazine inside the firearm. That the bullets were essentially identical, and of the same caliber as the firearm, supports the reasonableness of this inference. See Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990), S.C., 410 Mass. 1005 (1991) (“Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense”).

The defendant suggests that the extra two bullets could have been recovered from Hight's purse, noting that neither Needham nor Jano “testified that they searched the contents of her purse for loose bullets.” But the Latimore standard does not require us to rule out every theory of innocence in order to find the evidence sufficient. See Commonwealth v. Merola, 405 Mass. 529, 533 (1989). “The proper inquiry is ‘whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.’ ” Commonwealth v. Platt, 440 Mass. 396, 401 (2003), quoting Commonwealth v. Lydon, 413 Mass. 309, 312 (1992).

Furthermore, there is nothing to support the implication that the purse was recovered from the scene and thus could have been the source of the two bullets. The evidence was that the crime scene unit photographed the purse and then recovered just the firearm. In addition, Hight described the items that were in her purse and did not mention any bullets. This is not a case, therefore, where “the evidence tends equally to sustain either of two inconsistent propositions.” Commonwealth v. Torres, 442 Mass. 554, 563 (2004), quoting Berry v. Commonwealth, 393 Mass. 793, 796 (1985). The mere theoretical possibility that the bullets came from somewhere other than the magazine does not render the evidence insufficient. See Commonwealth v. Penn, 472 Mass. 610, 621 (2015), cert. denied, 136 S. Ct. 1656 (2016).⁴

We likewise conclude that the evidence was sufficient to show that the defendant knew that the firearm was loaded. The defendant was carrying the firearm on his person, near his waist area. He also handed Hight a loose bullet of the same caliber as the two bullets that, inferentially, were in the firearm, indicating that he had particular familiarity with the firearm. These facts permitted the jury to infer the defendant's knowledge that the firearm was loaded. See Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200-201 (2018) (jury could have inferred knowledge from evidence that defendant had firearm in waistband, admitted to some familiarity with firearms, was alone at night, and threatened someone while referring to firearm).

2. Stipulation. The issue of the stipulation arose after Hight denied on cross-examination that she was testifying under a nonprosecution agreement. At the ensuing sidebar, the parties agreed to stipulate that the Commonwealth and Hight had such an agreement.⁵ The stipulation was later marked for identification as Exhibit 12. Although the prosecutor said he would read it to the jury after the last witness testified, he did not do so, apparently inadvertently. Defense counsel did not bring the issue to the judge's attention, and he referred to both the agreement and the stipulation in his closing argument.

Before the final charge, defense counsel said to the judge, “Before you do the instructions if you can do the stipulation now because we should have done it earlier.” When the judge remarked that the stipulation was “already listed as an exhibit” and the jury could “read it themselves,” defense counsel asked that it nonetheless be read. The prosecutor agreed to do so and then told the jury:

“This is marked as Exhibit 12, you will also have a chance to read this yourself.

“The Commonwealth has made verbal promises to Michelle Hight and her friend Ann Pickering. The Commonwealth does not intend to prosecute her for any of her actions during the incident at Franks [bar] on February 9, 2018.”

Based on this sequence of events, the defendant claims error under Mass. R. Crim. P. 23 (b), 471 Mass. 1501 (2015), which provides that a “stipulation shall be placed on the record before the close of evidence and may be read or otherwise communicated to the jury or introduced into evidence in the discretion of the court.” The parties dispute whether the stipulation was entered in evidence (as the Commonwealth asserts) or simply was marked for identification (as the defendant asserts). We need not resolve this dispute because, even assuming error, it did not create a substantial risk of a miscarriage of justice. Defense counsel argued in closing that “[t]here was a cooperation agreement where [Hight] was promised by the prosecutor's office that they would not prosecute her for anything that occurred that particular evening.” The stipulation was then read to the jury, and the judge's final charge expressly referred to “evidence as part of a stipulation that the Commonwealth had made promises not to prosecute ․ Hight.” The judge also instructed that the jury could consider the agreement in assessing Hight's credibility. As the record leaves no doubt that the jury were made aware of the agreement, we are confident that any error did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Ortiz, 466 Mass. 475, 484 (2013) (“we cannot identify any prejudice to the defendant arising from the fact that the stipulation itself was explained to the jury during the judge's final instructions and not placed before them during the evidence phase of the trial”).

Judgments affirmed.

FOOTNOTES

2.   Jano explained that the crime scene unit's role is to “take care of the evidence and make sure it's properly kept and evidenced.”

3.   All the items were labeled with a unique case number corresponding to the case.

4.   The defendant did not argue at trial, nor does he argue on appeal, that any of the items in evidence were inadmissible because of an insufficient chain of custody. In any event “[a]lleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility.” Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992). See Commonwealth v. Rosario, 90 Mass. App. Ct. 570, 574-575 (2016) (despite alleged defects in chain of custody, evidence was “sufficient to permit a finder of fact to conclude that the evidence seized was in fact collected from the defendants during the controlled buy”).

5.   Though much of the sidebar is marked as inaudible, there is no dispute on appeal that the parties agreed to a stipulation.