COMMONWEALTH v. JONES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of unlawful possession of a firearm, carrying a loaded firearm, and unlawful possession of ammunition.² On appeal, he claims that there was insufficient evidence to support his conviction of unlawful possession of the firearm, the judge's jury instruction on possession created a substantial risk of a miscarriage of justice, he received ineffective assistance of counsel, and that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.

1. Sufficiency of the evidence. The defendant claims that there was insufficient evidence to prove that he unlawfully possessed the firearm, or that the defendant knew the firearm was loaded. We disagree.

“When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, supra.” Commonwealth v. Bell, 83 Mass. App. Ct. 82, 83-84 (2013).

“When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense.” Bell, 83 Mass. App. Ct. at 83, citing Jackson, 443 U.S. at 324 n.16. Latimore, 378 Mass. at 677-678. Here, the Commonwealth's case against the defendant was presented on the theory of constructive possession. To prove constructive possession of a firearm, the Commonwealth must establish the defendant's “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). A defendant's “knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). In constructive possession cases, a defendant's presence alone is not enough to show knowledge, or the ability and intention to exercise control over the firearm, but “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).

In the light most favorable to the Commonwealth, the jury were entitled to find that when the police attempted to make a traffic stop of the defendant, who was the operator and sole occupant of the car, he did not stop as directed. Instead, the defendant sped off through city streets at speeds of sixty-five to seventy miles per hour in twenty-five miles per hour zones, drove the wrong way down a one-way street, and ignored stop signs. The defendant was driving at such a great rate of speed that the police broke off their pursuit, as it had become unsafe and it appeared that the defendant was losing control of the car. The defendant continued driving at excessive speed until he careened off several parked and stopped cars, hitting them with enough force to cause at least one to jump the curb. As a result of striking these vehicles, the defendant's car lost its rear passenger side tire. Even at that point, the defendant continued driving away on three wheels and a metal rim with sparks flying off the pavement. Just before the vehicle hit a light pole, and while it was still moving, the defendant jumped from the vehicle and began running away. He was apprehended by police within ten to twenty feet. From their vantage point, the police did not observe anyone else fleeing from the vehicle, nor did they see anyone else inside it. Next to the open driver's side door of the vehicle from which the defendant had just fled, the police found a loaded firearm inside a backpack. The firearm was a Smith and Wesson .38 caliber revolver, loaded with five rounds of ammunition that were immediately apparent.

From this evidence, the jury were entitled to find that the defendant knew of the firearm and had the ability and intention to exercise dominion and control over it. See Sespedes, 442 Mass. at 99. Contrary to the defendant's claim, this is not a mere presence case. In the light most favorable to the Commonwealth, the defendant was the driver and sole occupant of the car. The firearm was found in a backpack, which also contained a sweatshirt, at the foot of the door from which the defendant attempted to escape from the pursuing police officers. The defendant's dangerous and reckless conduct prior to crashing the car also amply supported the reasonable inference that he fled because he was desperate to prevent the police from apprehending him with the firearm next to him, within his constructive possession and control, as he drove. See Commonwealth v. Romero, 464 Mass. 648, 657 (2013) (flight is plus factor to prove constructive possession of firearm); Commonwealth v. Jefferson, 461 Mass. 821, 826-28 (2012) (evidence of flight among “other incriminating evidence” that can demonstrate constructive possession and control of firearm in vehicle and differs from mere presence circumstances).³

Contrary to the defendant's claim, the fact that a fingerprint on the firearm did not match the defendant's prints did not detract from the Commonwealth's case. Instead, in the light most favorable to the Commonwealth, that evidence merely demonstrates that at some time prior to the stop, someone other than the defendant had touched the firearm, but it sheds no light on the defendant's constructive possession of it at the operable moment. See Commonwealth v. Merola, 405 Mass. 529, 533-534 (1989), quoting United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st Cir.), cert. denied, 474 U.S. 847 (1985) (Commonwealth “need not exclude every reasonable hypothesis of innocence [to prove its case], provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt”).

Similarly, the defendant's claim that another individual could have exclusively possessed or controlled the firearm is merely supported by an unverified, totem pole hearsay statement of an unidentified bystander that there could have been another person in the car. However, in the light most favorable to the Commonwealth, the responding police officers, from a vantage point within ten to twenty feet of the car when it crashed, saw only one individual (the defendant) exit the car. Nonetheless, even if we did include this statement into our calculus, it does not detract from the sufficiency of the evidence, as a firearm need not be possessed exclusively but may be jointly constructively possessed. See Commonwealth v. Acosta, 416 Mass. 279, 284 (1993).

Finally, the evidence was also sufficient to convict the defendant of possession of a loaded firearm, since the jury heard explicit testimony that the gun was a revolver with rounds of ammunition that were outwardly visible and immediately apparent. See Commonwealth v. Silvelo, 486 Mass. 13, 19 (2020) (ammunition in revolver “would have been clearly visible in the chamber given the revolver's configuration”); Jefferson, 461 Mass. at 828 n.7 (because “the firearm was a revolver located in a vehicle, a rational jury could infer that those who possessed the firearm knew that it was loaded with ammunition”). Thus, anyone who viewed the revolver even once would have been able to ascertain that it was loaded with ammunition. The inference that the defendant, who constructively possessed the revolver, knew it was loaded was reasonable and supported by the evidence. See Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (inference drawn from circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable”).

2. Jury instruction. The defendant also claims that the judge should have included in her jury instructions on possession a provision that states: “If relevant: Neither is possession proved simply because the defendant was associated with a person who controlled the [contraband] or the property where [the contraband] was found.” Instruction 3.220 of the Criminal Model Jury Instructions For Use in the District Court (2009). The defendant did not request this additional instruction and did not object to its omission. See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979). In that posture, we review only to determine whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013). There was no error.

Here, the judge read to the jury instruction 3.220 nearly verbatim, except for a single sentence the defendant now presses on appeal. Later, in response to the jury's question,⁴ the judge sent back a written version of 3.220. The omitted sentence did not render the instruction erroneous because, viewed as a whole, the judge's instructions properly informed the jury on the elements of constructive possession. See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015) (“We evaluate jury instructions as a whole and interpret them as would a reasonable juror”).

When viewed in the context of the evidence at trial, the now challenged omission was irrelevant to the circumstances where the defendant was the driver and, putting aside the unverified totem pole hearsay statement, the lone occupant of the vehicle. Even if we take into consideration the statement of the nontestifying, unknown bystander, there was still no error when the jury instructions are viewed as a whole. See Commonwealth v. Perez, 87 Mass. App. Ct. 278, 280 (2015) (no error in omission of “guilt by association” sentence because jury charge in its entirety correctly and adequately explained element of possession).

3. Ineffective assistance of counsel. The defendant also claims that he received ineffective assistance of counsel based on counsel's (1) failure to file a motion in limine to exclude from evidence twelve photographs of vehicles damaged by defendant, (2) failure to request a limiting instruction related to the photographs, and (3) failure to file a motion in limine to exclude all references to the police witnesses as being part of the “Youth Violence Strike Force.”⁵ We disagree.

As a starting point, we note that the defendant's ineffective assistance of counsel claims are being presented for the first time on appeal. As the Supreme Judicial Court has stated, “our courts strongly disfavor raising claims of ineffective assistance on direct appeal.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). “A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by a trial judge.” Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). Without a record indicating counsel's decision-making process or findings from the judge on these issues, we are hampered in the resolution of these claims. See Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015). In any event, the standard for determining a substantial risk of a miscarriage of justice is “essentially the same” as the standard for determining prejudice on an ineffective assistance of counsel claim. Commonwealth v. LaChance, 469 Mass. 854, 858 (2014). See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim).

A. The photographs. The defendant claims that his trial counsel rendered substandard performance in not seeking to exclude photographic evidence of the damage caused by the defendant during his flight from police. We disagree.

The Commonwealth is entitled to present “as full a picture as possible of the events surrounding the incident itself” (citation omitted). Commonwealth v. Phim, 462 Mass. 470, 477 (2012). The crime scene photographs were admissible, as they were “inextricably intertwined with the description of events” (citation omitted). Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982). In fact, the evidence of the defendant's flight, and the lengths to which he was willing to go, were directly relevant to his consciousness of guilt and his knowledge, as well as his ability and intent to exercise control over the firearm.⁶

The fact that the defendant had already pleaded guilty to the motor vehicle and property damages charges does not change the evidentiary significance of the conduct. Contrary to the defendant's claim, the photographs do not depict “prior bad acts.” Rather, the photographs depict acts that were contemporaneous with the defendant's extraordinary effort to evade the police, and inferentially, to avoid being found in possession of the firearm. The photographs were part of the “full picture of the events surrounding the crime,” and they were properly admitted.⁷ See Commonwealth v. Bryant, 482 Mass. 731, 736 (2019) (likely prejudice did not outweigh substantial probative value of evidence). There was no error, and thus, no risk that justice miscarried.

B. Youth Violence Strike Force. The defendant also claims counsel was ineffective for not objecting to the police witnesses identifying themselves as members of the “Youth Violence Strike Force.”⁸ The defendant contends that the jury may have been confused as to whether the “youth violence” focus on him was related to the portion of the judge's instruction on bad acts evidence that stated without specificity, “You have heard mention of other acts allegedly done by [the defendant]. We disagree.

The references to the Youth Violence Strike Force “were isolated, fleeting, and completely unrelated to the theory and evidence against the defendant.” Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 872 (2010). The case against the defendant was entirely about his own actions, and the Commonwealth did not tie the defendant to a broader culture or scheme of violence. Indeed, the evidence showed that the police attempted to stop the defendant for a routine traffic violation, rather than because they recognized him from their assignment to the Youth Violence Strike Force. There was no error, and thus, no risk that justice miscarried.

4. The prosecutor's closing argument. Finally, the defendant claims that the prosecutor's closing argument contained two misstatements that require the verdicts to be set aside. Specifically, the prosecutor incorrectly stated that the deoxyribonucleic acid (DNA) found on the sweatshirt was not capable of being tested, and that there was physical evidence linking the defendant to the firearm. Because there was no objection to the prosecutor's closing argument, we review to determine if there was error, and if there was, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 821 (2018).

A. The DNA misstatement. In her closing argument, the prosecutor stated, “You heard that that sweatshirt was submitted for DNA testing and they weren't able to get enough material off of it to do any reliable test.” However, as the defendant claims (and the Commonwealth concedes), this is incorrect. In reality, the police obtained DNA from the sweatshirt, but could not match it to anyone. The defendant claims the misstatement undercut his Bowden defense. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). We disagree.

The misstatement was an isolated remark in an otherwise evidence-based argument. Importantly, the misstatement did not implicate the defendant, and therefore, did not serve as a basis for his convictions. The defendant claims the remark led the jury to improperly infer the existence of “physical evidence” because her statement “indicated to the jury that the prosecutor was “privy to secret information concerning DNA that tied the sweatshirt directly” to the defendant. But there is no basis for that thesis in the closing argument when it is read in context. The misstatement did not tie the sweatshirt to anyone, let alone the defendant, and did not affect the Bowden defense. In fact, the remark played a very small role in the prosecutor's argument, which focused on the evidence that supported the defendant's guilt, as the Commonwealth's case had been established without fingerprints and DNA evidence implicating the defendant. Given the minor effect of the remark, the lack of an objection, and the judge's instructions that arguments are not evidence, we conclude that the error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Berry, 466 Mass. 763, 770 (2014); Commonwealth v. Taylor, 455 Mass. 372, 384 (2009).

B. Physical evidence. The defendant also claims that the prosecutor erroneously argued that there was physical evidence linking the defendant to the firearm. We disagree.

In her closing argument, the prosecutor provided a record-based explanation of why the jury should find the defendant guilty by illustrating how the physical evidence implicated him. She urged the jury to view the damaged cars in the street as evidence of the defendant's desperate attempt to avoid police capture. She argued that no one could exit the car on the passenger side because the door was pinned shut. She added that the deployed airbags did not provide evidence of a passenger because both front seats airbags deployed despite the defendant having jumped from the car before it crashed. Most importantly, she argued that the backpack containing the firearm was immediately next to the driver's side door from which the defendant had leapt. Each of these submissions relate to physical evidence, and linked the defendant to the crime. See Commonwealth v. Roy, 464 Mass. 818, 829-830 (2013) (prosecutor entitled to marshal evidence in Commonwealth's favor and “it is for the jury to determine where the truth lies” [citation omitted]). There was no error, and thus, no risk that justice miscarried.

Judgments affirmed.

FOOTNOTES

2.   Because the ammunition at issue was in the loaded firearm, the defendant's conviction of possession of ammunition was dismissed as duplicative of his conviction of carrying a loaded firearm.

3.   In an attempt to diminish the significance of defendant's flight, he relies on Commonwealth v. Warren, 475 Mass. 530 (2016), where the court acknowledged that “flight is not necessarily probative of a [black male] suspect's state of mind or consciousness of guilt,” because “[s]uch an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” Id. at 539–540. However, the Warren case analyzed flight in the context of determining whether the police had reasonable suspicion to justify an investigative stop of the defendant. Id. at 538-540. Here, we are reviewing whether the evidence was sufficient and we must view the evidence in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 677-678, which allowed the jury to view this defendant's flight as evidence of consciousness of guilt for his constructive possession of the firearm.

4.   The jury requested a written statement of the legal definition of possession. The defendant offers nothing in support of his claim that providing the written instructions to the jury confused them, and no objection was lodged at the time to providing them with it. The judge did not abuse her discretion by providing the written instructions. See Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 393 (2013) (judge's discretion to formulate response to jury question is broad).

5.   What we have said in the previous section disposes of the defendant's claim that his trial counsel was ineffective by failing to object to the jury instructions on possession.

6.   The defendant concedes that the testimony regarding the defendant's erratic driving and the crash scene was properly admitted.

7.   Given the propriety of their admission, no curative or limiting instruction was required. Nonetheless, we note that in her final charge, the judge instructed the jury that the defendant was “not charged with committing any crime other than the charges contained in the complaint. You have heard mention of other acts allegedly done by [the defendant]. You may not take that as a substitute for proof that [the defendant] committed the crimes charged here nor may you consider it as proof that [the defendant] has a criminal personality or bad character.”

8.   The defendant also claims that the prejudice from this omission was compounded by the judge not giving the possession by association instruction discussed above.