COMMONWEALTH v. Jeremy MCKENNA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant raises two issues on appeal from his conviction of carrying a dangerous weapon, to wit, throwing darts, in violation of G. L. c. 269, § 10 (b).
The defendant argues first that three throwing darts that at the time of his arrest were affixed to the defendant's wrist in a wrist strap or armband were not “dangerous weapons” within the meaning of the statute, and therefore that the indictments should have been dismissed or a judgment of not guilty entered on his motion for a required finding. As the defendant acknowledges, however, the term “dangerous weapon” includes not only objects that are dangerous per se but “those things that become dangerous weapons because they are used in a dangerous fashion” (quotation and citation omitted). Commonwealth v. Turner, 59 Mass. App. Ct. 825, 828 (2003). In assessing the defendant's claim, we must view the evidence and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The darts, photographs of which are in the record, were black strips of metal approximately four inches in length with a sharp tip. They were not the type of darts ordinarily seen used as part of the game of darts, which have plastic fins.2 The darts were on the defendant's wrist in a place that, jurors could have found, allowed, and was intended to allow, ready access. When asked why he had the darts, the defendant said that “they were for self-defense.”
The jury, again, viewing the evidence in the light most favorable to the Commonwealth, could have concluded beyond a reasonable doubt that the darts were being used in a dangerous fashion, and therefore were dangerous weapons. See Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 82 (2014) (“easy access to an unsheathed knife” in defendant's backpack, even though it was never used, evidence that knife was dangerous weapon); Commonwealth v. Thompson, 15 Mass. App. Ct. 974, 974 (1983) (defendant's statement to officer that she carried a knife hidden in her pocketbook “for her protection” evidence that knife was dangerous weapon). Consequently, the claims of error with respect to denial of the motions to dismiss and for a required finding of not guilty are without merit.
The defendant argues second that the judge erred in failing to dismiss the complaint due to an alleged discovery violation. The defendant's contention is that his arrest followed an altercation between himself and two individuals who can be seen on surveillance video taken by security cameras inside and outside the defendant's store on the night in question, in which he, the defendant, was the victim. His theory is that these individuals, or at least one of them, was a confidential informant for the Lowell police and that due to this relationship, rather than arresting the actual wrongdoers, the police ultimately arrested the defendant.
About five weeks before trial the defendant subpoenaed an agreement between the Middlesex County Office of the District Attorney and one Jason Sayer, purportedly one of the people that assaulted the defendant and who was not arrested or charged. The Commonwealth responded, in a motion to quash the subpoena, that issuing a subpoena under Mass. R. Crim. P. 17, 378 Mass. 885 (1979), was the wrong vehicle by which to propound discovery and that there was no affidavit explaining the relevance of the discovery sought. The judge did not rule on this motion before trial but did briefly explore the issue on the day of trial, ultimately declining to dismiss the case.
To begin with, the defendant did not follow the proper procedure in issuing a subpoena under Mass. R. Crim. P. 17. The proper procedure would have been to file a motion under Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004). Passing this, the defendant also failed to make a threshold showing of relevance, which could have been made by way of an accompanying affidavit. See Mass. R. Crim. P. 13, as appearing in 442 Mass. 1516 (2004). In her filing, counsel explained neither the basis for her conclusion that Jason Sayer was one of the individuals outside the store, nor the basis for her belief that he was an informant who had an agreement with the Office of the District Attorney. At trial, the judge sought to determine the basis upon which the defendant sought this discovery. Although counsel twice asserted that she had a “good faith basis” for her belief that there was such an agreement and that it was relevant to this case, her only basis was that the security camera video showed one of the individuals involved in the altercation talking with the first officer at the scene before the second officer arrived.3 Because the defendant failed to introduce sufficient evidence, or indeed even make a sufficient representation of the basis upon which the discovery sought was relevant, he did not provide sufficient evidence to support a finding of a discovery violation. There was thus no error in the denial of his motion to dismiss the case on the grounds of such a violation.
Judgment affirmed.
FOOTNOTES
2. We express no opinion about the circumstances under which such darts might be deemed a dangerous weapons.
3. The first officer at the scene testified that he was speaking with the two individuals outside the store in order to “figure out what was actually going on.”
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