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Appeals Court of Massachusetts.



Decided: November 19, 2021

By the Court (Sullivan, Sacks & Shin, JJ.2)


A jury convicted the defendant, Kuran Vidal, of unlawful possession of a firearm, G. L. c. 269, § 10 (a), and unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n).3 The defendant appeals on the grounds that (1) there was insufficient evidence to support either conviction and (2) the prosecutor's closing argument warrants reversal. We affirm.

Discussion. 1. Sufficiency of the evidence. “In reviewing the sufficiency of the evidence, we determine ‘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.’ ” Commonwealth v. Romero, 464 Mass. 648, 652 (2013), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). “Circumstantial evidence is competent to establish guilt beyond a reasonable doubt” (citation omitted). Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 591 (2007).

We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Ashford, 486 Mass. 450, 454 (2020). Around 1 a.m. on September 4, 2017, Boston police received a 911 call from a driver in distress, who stated he was being pursued by a man with a gun who had threatened to kill him.4 The caller told dispatch that a man named Betson was following him in a burgundy Honda Accord and provided a license plate number. Shortly after dispatch relayed the information, two police officers spotted a car matching the description. The officers stopped the Honda Accord, which contained two individuals: the driver, codefendant Betson P. Tavares-Depina, and the passenger, defendant Vidal. The officers searched the car and discovered a firearm under the front passenger seat.

At trial, a police sergeant testified that a seat adjustment bar and thick wires located under the front passenger seat made it “virtually impossible” to pass a gun under the front to the rear of the passenger seat. Two photographs of the vehicle's interior depicted a fully reclined front passenger seat. A gun handle protruded from underneath the back of the seat. The defendant's fingerprint was found on the magazine. No other fingerprints were found on the firearm, live rounds, or cartridges.

To sustain a conviction of unlawful possession of a firearm, “the Commonwealth must prove beyond a reasonable doubt that the defendant actually or constructively possessed the firearm ․ and that he did so knowingly” (quotation omitted). Romero, 464 Mass. at 652. Constructive possession “requires the Commonwealth to establish the defendant's ‘knowledge coupled with the ability and intention to exercise dominion and control.’ ” Commonwealth v. Summers, 93 Mass. App. Ct. 260, 262 (2018), quoting Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). “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.’ ” Summers, supra, quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980).

“[A] defendant's presence alone is not enough to show 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” (quotation and citation omitted). Summers, 93 Mass. App. Ct. at 262. Possession need not be exclusive and may be “accomplished jointly among the defendants.” Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 154 (2008). See Commonwealth v. Gouse, 461 Mass. 787, 796 (2012).

Viewing the evidence in the light most favorable to the Commonwealth, a rational trier of fact could have found that the defendant was in the car with Tavares-Depina while he pursued the 911 caller, threatened to kill the caller, and brandished a gun. This evidence is sufficient to prove that the defendant had knowledge of the gun. See Romero, 464 Mass at 652. See, e.g., Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 847 (2010) (passenger's “knowledge of the firearm also may be inferred from his particularly close proximity to it”).

A rational trier of fact also could have found that the defendant had access to the gun under his seat, even if only by opening the back door, and therefore had the ability to exercise dominion and control over it. See Romero, 464 Mass. at 652. See, e.g., Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 211 (2002), quoting Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998) (“By virtue of the gun's location [on the floor behind him], the defendant had easy access to it and thus had the ability to exercise control over it”).

Finally, intent to “control can be inferred from the defendant's conduct.” Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41 (2010). The jury could have found that the gun was brandished in close proximity to the defendant, and that the defendant knew the gun was located underneath the passenger seat. See Sadberry, 44 Mass. App. Ct. at 936 (intent to control inferred from fact that defendant knew gun was under seat). A latent print matching the defendant's left index finger was located on the magazine of the firearm. Finally, the jury could have inferred from the fact that the defendant kept his seat fully reclined even after the car had been stopped by the police that he intended to conceal the weapon from view. See, e.g., Cotto, 69 Mass. App. Ct. at 592-593. The evidence was sufficient.5

2. Closing argument. The defendant maintains that the prosecutor's closing argument contained several errors that, in combination, require reversal: namely, that he argued evidence not in the record, disparaged defense counsel, belittled the defense argument, vouched for prosecution evidence, and shifted the burden of proof. We have reviewed the closing argument with care and conclude that there was no impropriety.

a. Evidence. The defendant contends the prosecutor argued evidence not in the record, see Commonwealth v. Imbert, 479 Mass. 575, 585-586 (2018), when he suggested that the defendant reclined the seat in order to conceal the firearm. Two photographs of the vehicle's interior depicted a fully reclined front passenger seat with a firearm handle protruding from underneath the back of the seat. The prosecutor relied on these photographs to argue that the occupants of the car had not been relaxing when they pursued the other motorist, and that the defendant reclined the seat to conceal the firearm. The photographs were in evidence, the inference the prosecutor asked the jury to draw from the photographs was permissible, and the argument was not improper.

b. Disparagement and vouching. The defendant contends the prosecutor disparaged defense counsel and belittled the defense when he stated that the defense was a “mirage,” a thing “lawyers conjure up to try to kick dirt on the very real and tangible evidence.”

A prosecutor may not argue that the “entire defense” is a “sham,” or that defense counsel is dishonest. Commonwealth v. Lewis, 465 Mass. 119, 130 (2013). However, closing arguments may include enthusiastic rhetoric, strong advocacy, and excusable hyperbole. See Commonwealth v. Costa, 414 Mass. 618, 629 (1993). The tenor of the argument was occasioned, in part, by closing arguments for the defendants, in which each claimed to have no knowledge of the gun. The prosecutor's arguments were colorful, and the reference to conjuring lawyers may have sailed unnecessarily close to the wind, but the prosecutor did not impugn counsel's honesty or the defense as a whole. Contrast Lewis, supra at 130. “[T]he jury are presumed to know that the prosecutor is an advocate and to be able to recognize his arguments as advocacy” (quotation and citation omitted). Commonwealth v. Gerhartsreiter, 82 Mass. App. Ct. 500, 515 (2012).

The defendant also asserts the prosecutor belittled the defense by asking the jury to consider how the gun got in the car and if the gun fell out of the sky.6 “Within reason, prosecutors may be critical of the tactics utilized by trial counsel in defending a case.” Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002), quoting Commonwealth v. Awad, 47 Mass. App. Ct. 139, 141 (1999). The Commonwealth's theory was that the defendants had been chasing another car while brandishing a gun and threatening the other driver. Each defendant disclaimed knowledge of the gun and pointed to the other. In this context, we do not consider the prosecutor's argument to have crossed the line from a permissible appeal to common sense and life experience to impropriety. See, e.g., Commonwealth v. Oliveira, 431 Mass. 609, 613 (2000).

In related argument, the defendant asserts the prosecutor implied that the prosecution had superior knowledge of the defendant's guilt when he stated, “[t]hat's not reality.” “Improper vouching occurs if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury” (quotation and citation omitted). Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). The statement made here was argument, not vouching. In context, there is no suggestion that the prosecutor knew something the jury did not.

The defendant's reliance on Commonwealth v. Rosa, 73 Mass. App. Ct. 540 (2009), in which a reference was also made to “reality,” is misplaced. In Rosa, the prosecutor argued facts not in evidence to the jury and did so in a manner that suggested he had superior knowledge of the facts.7 See id. at 547-548. Neither factor is present here. We are confident that the jury were able to recognize these statements as advocacy, and the jury were instructed that the closing arguments are not evidence.

c. Burden shifting. A statement that shifts the burden of proof in closing argument is improper. See Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). The defendant argues that the prosecutor improperly shifted the burden of proof to the defendant when he said the following:

Counsel for Mr. Vidal spend most of his closing argument trying to kick dirt on this fingerprint understandably because it is so damning against him. Calling it voodoo and junk science without a basis. Saying that the reason we can't trust it is because we have not looked at every single persons’ fingerprint [in] the entire world.

The prosecutor's statement was made in response to the defendant's closing argument, in which counsel described the fingerprint analysis as “voodoo science based on assumptions that are totally unprovable.” The closing argument fell within the prosecutor's right of fair reply. See, e.g., Commonwealth v. Kee, 449 Mass. 550, 560 (2007).

Judgments affirmed.


3.   The jury also convicted the defendant of unlawful possession of ammunition, G. L. c. 269, § 10 (h), but that verdict was subsequently set aside at the Commonwealth's request.

4.   The caller stated, “Somebody's following me, and then he's texting me, and then he -- he said he's gonna kill me. They got -- they have a gun, and they are following me right now.” The caller then stated, “his name is Betson; he's driving the car.”

5.   To the extent the defendant appears to argue that the evidence was insufficient to prove that he knew the firearm was loaded, see, e.g., Commonwealth v. Brown, 479 Mass. 600, 601-602 (2018), that claim is unavailing. “We have observed that, in particular circumstances, a rational jury could infer that an individual who possessed a firearm was aware that it was loaded.” Id. at 608. “[T]his inference need only be reasonable and possible, not necessary and inescapable.” Ashford, 486 Mass. at 454-455. The defendant claims that the presence of the fingerprint on the magazine is immaterial because no one can say when the fingerprint was left on the magazine. See generally Commonwealth v. French, 476 Mass. 1023 (2017). The jury could have found, however, that the defendant was in the car when the gun was brandished and threats were made to kill the 911 caller. The jury were permitted to draw the inference that the defendant handled the magazine, that he was aware that the gun was used to threaten the caller, and that the threat to kill would not have been made without the firepower to back it up. Viewed in the light most favorable to the Commonwealth, there was sufficient evidence to show that the defendant knew the firearm was loaded.

6.   “Have you ever been in a car where you accidentally found that there was loaded firearm inside it ․ driving around ․ and lo and behold a firearm falls out of the sky and it is tucked under the seat you're sitting in? That's not reality.”

7.   In Rosa the prosecutor argued, “The reality is, ladies and gentlemen, that eight picture photo array was more difficult than one at a time.” Id. at 547.

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