107 N.E.3d 1255
Mass. App. Ct.2018Background
- Defendant Vincent A. Tiscione, III was tried by jury and convicted of two counts each of possession of a firearm and possession of ammunition without an FID card (G. L. c. 269, § 10(h)(1)) and two counts of failing to secure a firearm (G. L. c. 140, § 131L); at a subsequent bench trial he was convicted of enhanced offenses under G. L. c. 269, § 10G(a) based on a prior violent/drug conviction.
- Firearms and ammunition were found in the bedroom of an apartment the defendant occupied; items bearing the defendant’s name (driver’s license, receipts) were recovered from the bedroom and from safes in the closet.
- Witnesses (Dorothy and Ashleigh) testified they had seen the defendant with a shotgun and a handgun, that he hid the shotgun under the mattress and placed the handgun in the closet, and that he threatened to shoot household members; Dorothy hid the handgun in a wall prior to police arrival and told officers of the shotgun she had seen earlier.
- During deliberations a juror (No. 44) left, saying she was too upset to continue; after two in-court colloquies the judge discharged her for personal reasons, replaced her with an alternate, and instructed the jury to begin deliberations anew.
- Defendant appealed, arguing (1) improper discharge of the deliberating juror, (2) erroneous admission of prior bad-acts evidence, (3) improper prosecutorial remarks in closing argument, and (4) insufficient evidence of constructive possession; the court affirmed.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Tiscione) | Held |
|---|---|---|---|
| Discharge of deliberating juror | Discharge proper for juror’s personal/emotional inability to continue; judge followed required procedure and instructed jury to restart deliberations | Discharge was not for a personal reason related to juror’s life but for disagreement with other jurors; hearing procedurally defective | Affirmed — judge conducted adequate colloquies, juror’s personal family/health burdens justified discharge, and jury was properly instructed to restart deliberations |
| Admission of prior bad-acts evidence | Testimony about prior display/use of guns and defendant’s admissions were relevant to possession, knowledge, and identity; admissible with limiting instruction | Evidence prejudicially showed bad character/propensity to possess guns unrelated to recovered weapons | Affirmed — prior acts relevant to link defendant to guns and admissible (also party admission); limiting instruction given |
| Prosecutor’s closing argument | Remarks about male clothing/shoes and victim’s fear were fair inferences from evidence and permissible to tie facts together | Prosecutor argued facts not in evidence and appealed to sympathy, creating miscarriage of justice | Affirmed — remarks were reasonable inferences; no objection at trial; considered in context and judge’s instructions cured any risk |
| Sufficiency of evidence for constructive possession | Circumstantial evidence (access to bedroom, items with defendant’s name, witnesses seeing defendant with guns and threats, hidden handgun) supports knowledge and dominion/control | Evidence insufficient to prove knowledge and intent to exercise control over weapons | Affirmed — viewed in light most favorable to Commonwealth, evidence sufficient to permit rational trier of fact to find constructive possession |
Key Cases Cited
- Commonwealth v. Connor, 392 Mass. 838 (procedures and limits for discharging a deliberating juror)
- Commonwealth v. Garcia, 84 Mass. App. Ct. 760 (requirement to instruct remaining jurors that discharge was for personal reasons and to restart deliberations)
- Commonwealth v. Oberle, 476 Mass. 539 (prior-bad-acts admissibility balancing probative value and prejudice)
- Commonwealth v. Crayton, 470 Mass. 228 (admissions by a party as admissible evidence)
- Commonwealth v. Latimore, 378 Mass. 671 (standard for reviewing sufficiency of evidence)
- Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002 (constructive possession requires knowledge plus intent and ability to exercise dominion and control)
- Commonwealth v. Hoffer, 375 Mass. 369 (counsel may argue fair inferences from evidence)
- Commonwealth v. Hoppin, 387 Mass. 25 (prosecutor may not assert matters not in evidence)