56 Mass. App. Ct. 206 | Mass. App. Ct. | 2002
The defendant was convicted by a Superior Court jury of assault by means of a dangerous weapon, a handgun, G. L. c. 265, § 15B(Z?); unlawful possession of a firearm, G. L. c. 269, § 10(a); trafficking in more than fourteen (but less than twenty-eight) grams of cocaine, G. L. c. 94C, § 32E(6)(1); and trafficking in cocaine within 1,000 feet of a school zone, G. L. c. 94C, § 32J. On appeal, the defendant contends that the trial judge committed prejudicial error by refusing to instruct the
1. Simple joint possession. Because the defendant objected to the trial judge’s denial of his request that the jury be instructed on the theory of simple joint possession, “we review the omission to determine if there was prejudicial error.” Commonwealth v. Henderson, 434 Mass. 155, 158 (2001), quoting from Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 338 (1999).
(a) Applicable principles. “[Wjhen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime.” Commonwealth v. Roberts, 407 Mass. 731, 737 (1990), quoting from Commonwealth v. Hobbs, 385 Mass. 863, 871 (1982) (emphasis omitted). An instruction on simple joint possession is warranted when the evidence permits a finding that “two or more persons simultaneously and jointly acquire possession of a drug for their own use intending only to share it together.” Commonwealth v. Johnson, 413 Mass. 598, 604 (1992). See also United States v. Swiderski, 548 F.2d 445, 449 n.2 (2d Cir. 1977). Here, the evidence could have supported, as an alternative to trafficking in cocaine, the lesser crime of simple joint possession and, therefore, the jury should have been instructed regarding the possibility of conviction of the lesser crime.
“In determining whether any view of the evidence would support a conviction on a lesser included offense, ‘all reasonable inferences must be resolved in favor of the defendant.’ ” Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 693 (1998), quoting from Commonwealth v. Gilmore, 399 Mass. 741, 746 (1987).
(b) The facts. The defendant testified at trial to the following.
The defendant testified that he and his friends traveled by car to an apartment where they met with Tim. Several other people were also present in the apartment, including Anthony Valez, identified by the defendant as the supplier of drugs, Sylvia Smith and others. The defendant stated that he, McBride and Miller all participated in the negotiation and were present during the exchange of money for drugs. Following introductions, McBride “started talking, you know, to Tim, Yo, Tim, you know. And Anthony’s, like, What’s up? So, we had told Anthony, we had already came up with what we wanted, and we told him we wanted about ... an ounce and a half of coke. . . . Anthony said, You got the money? . . . And we said, Yeah, we got the money. We showed him the money and then he said okay. He told Sylvia to go get the coke.” Ten minutes later, Sylvia returned and gave Anthony the cocaine, which he placed on the table to weigh. The defendant questioned why the cocaine was prepackaged, concerned that it would affect the weight. Sylvia said it was all they had left.
Believing that the woman had taken some of the cocaine, the defendant and McBride followed her outside. There, a confrontation took place between the seller group, on the one hand, and the defendant and McBride, on the other, in which the woman was accused of taking the smaller bag of cocaine. When McBride brandished a handgun,
(c) Discussion. This evidence — that the defendant and his two companions were friends who on occasion shared drugs; that the three had pooled their money to purchase drugs they intended to share; that they each participated in the negotiation for the purchase of drugs; and that all were present when the drugs were paid for and received — was, if believed, sufficient to support a finding that the drugs were simultaneously and jointly acquired and intended to be shared only by the three purchasers.
The Commonwealth argues that a simple joint possession instruction was not warranted because the defendant held the money, paid for, and took possession of the drugs. The cases
2. Required finding on firearm charge. The defendant contends that the trial judge improperly denied his motion for a required finding of not guilty of unlawful possession of a firearm, made at the close of the Commonwealth’s case, because there was no direct evidence that the defendant possessed the handgun recovered by police from the vehicle after he had fled.
Guilt was established under a theory of constructive possession, which requires proof that the defendant had “knowledge
“We view the evidence at trial in the light most favorable to the Commonwealth, and determine ‘whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Grandi-son, 433 Mass. 135, 140 (2001), quoting from Commonwealth v. Lodge, 431 Mass. 461, 465 (2000) (emphasis original). Based on this view of the evidence, the jury could have found that during the confrontation outside the apartment where the drug sale took place, the defendant and McBride, both using handguns, assaulted the woman they believed had taken the drugs. They left the scene in a car driven by Miller
We reverse the judgments of conviction for trafficking in cocaine and trafficking in cocaine within 1,000 feet of a school zone, and the verdicts are set aside. The remaining judgments are affirmed.
So ordered.
The defendant makes no claim of error with respect to his conviction for assault by means of a dangerous weapon.
The jury were instructed as to the lesser included offense of simple possession.
Overruling the prosecutor’s objections that the statements constituted hearsay, the judge instructed the jury that they could consider the defendant’s testimony as to what Sylvia Smith said solely in order to assist them in weighing the credibility of the witnesses.
Although the Commonwealth’s witness testified that the defendant also brandished a gun, see part 2, infra, the defendant testified only that McBride “pulled out his pistol.”
We therefore need not reach the argument that there was insufficient evidence to support conviction on the basis of joint venture possession, or concern ourselves with the fact that the jury were not instructed on this theory.
There was no evidence as to ownership of the vehicle.