COMMONWEALTH vs. TYRIEK BROWN.
SJC-12348
Supreme Judicial Court of Massachusetts
January 5, 2018. - May 22, 2018.
Worcester. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
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Firearms. Evidence, Firearm. Practice, Criminal, Argument by prosecutor. Words, “Knowingly.”
Indictments found and returned in the Superior Court Department on December 13, 2013.
The cases were tried before William F. Sullivan, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Deborah Bates Riordan (Theodore F. Riordan also present) for the defendant.
Michelle R. King, Assistant District Attorney, for the Commonwealth.
David Rangaviz, Committee for Public Counsel Services, for Erickson Resende, amicus curiae, submitted a brief.
GAZIANO, J. The primary issue presented in this appeal is whether the Commonwealth is required to prove a defendant knows that a firearm in his or her possession is loaded in order to be convicted
After police officers discovered a loaded firearm in the rear console of a vehicle driven by the defendant, he was charged with and convicted of unlawful possession of a firearm,
In its brief to this court, the Commonwealth contends that
We conclude that, to sustain a conviction under
1. Background. As the defendant challenges the sufficiency of the evidence of his knowledge that the firearm was loaded, we recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
On the morning of July 4, 2013, State police Trooper Matthew Moran stopped a vehicle the defendant was driving on Interstate Route 290 in Worcester for a defective rear brake light. There were two passengers in the vehicle: a male passenger, Horace Murphy, in the front passenger seat; and a female passenger, Joelene Cataquet, in the back seat. Cataquet was asleep when the vehicle was stopped. The defendant said that he was returning from his former girl friend‘s house in Worcester and was headed back to Boston. He gave the trooper a Massachusetts identification card and a Massachusetts learner‘s permit. Murphy produced a Georgia driver‘s license. Moran determined through registry of motor vehicles records that both licenses were suspended in Massachusetts.
After a second trooper, Patrick Mahady, arrived in response to Moran‘s request for backup, the defendant was arrested for driving with a suspended license and was placed in Mahady‘s cruiser. Moran then read the defendant the Miranda rights, and the defendant indicated that he understood those rights. At that point, Moran determined that, because Cataquet did not have a driver‘s license, the vehicle would have to be towed from the highway, as none of the occupants legally could drive it. In preparation for towing, Moran conducted an inventory search of the vehicle while the defendant was in Mahady‘s cruiser and the two passengers waited behind the vehicle near the guardrail. Moran discovered a handgun loaded with five rounds of ammunition in the console between the rear passenger seats. After this discovery, Mahady arrested both passengers.
On the drive to the State police barracks, the defendant initiated a conversation with Mahady, saying that he thought Murphy had
During booking, Cataquet gave a written statement, a redacted version of which was read in evidence by Mahady.3 As Mahady read it, the statement said,
“It is my firearm. I claim full responsibility for the firearm. I took it out of my purse and slid it into the rear console because it made my purse heavy . . . .”
“I took a nap while we were riding on the highway, and the two men in front, [the defendant] and [Murphy], did not know at all that I was carrying a fully loaded clip firearm in the vehicle. And when I woke up out of my nap, both the men were in handcuffs. The officer asked me if it was mine. I said no, but I was scared. But most importantly, I can‘t let two men lose their freedom because I . . . had the firearm on the ride to the station. I realized that, and that‘s why I‘m writing this written statement. I take responsibility for my actions. The reasons I have a gun is because I was recently raped and felt the need to have a gun to protect myself. Once again, I take full responsibility.”
There were no useable fingerprints on the firearm, the magazine, or the ammunition. A forensic scientist was unable to obtain the serial number for use in tracing the owner of the
firearm. The defendant was convicted of unlawful possession of a firearm in a vehicle and unlawful possession of a loaded firearm in a vehicle, and acquitted of possession of a firearm with a defaced serial number.4
2. Discussion. a. Mens rea requirement for
General Laws
where an unlicensed firearm was loaded.5 It does not create a stand-alone offense; in order to be convicted under
At the close of all the evidence in this case, the judge indicated that he would give the jury instruction for the charge of unlawful possession of a loaded firearm proposed by defense counsel. Under the wording of that instruction, the Commonwealth was required to prove that (1) the defendant possessed or had control over a firearm; (2) the weapon met the legal definition of a firearm; (3) the defendant knew that he possessed a firearm; and
judge ultimately gave an instruction that combined language requested by the defendant and by the Commonwealth, and which mistakenly stated that five elements were required, while including only the four elements listed above. During deliberations, the jury sent the judge the following question: “[O]ur instruction[] says there must be five elements, and we were only provided with four. Does the defendant have to know whether the firearm was loaded, or just that he possessed it and it was loaded?” The judge conferred with each attorney and ultimately decided, with the agreement of both attorneys, to explain that the word “five” had been a misprint and should have been “four,” and then to read the version of the instruction that the defendant had requested as to the required elements of the offense.
In his appeal to the Appeals Court, the defendant challenged the sufficiency of the evidence to sustain the conviction under
“Our primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.‘” Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water Dep‘t of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010). “Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent.” Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). That said, “[w]e will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable.” Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982). See Black‘s Law Dictionary 11-12 (10th ed. 2014) (defining “absurdity” as “being grossly unreasonable” and “[a]n interpretation that would lead to an unconscionable result, esp. one that . . . the drafters could not have intended“). We therefore interpret statutes “so as to render the legislation effective, consonant with sound reason and common sense.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006).
The absence of any explicit language requiring knowledge in the enhancement provision of
We agree with the Appeals Court‘s analysis of our reasoning in Johnson, 461 Mass. at 53, concerning lesser included firearms offenses, and its implications in this case. “Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense. . . . Thus, a lesser included offense is one which is necessarily accomplished on commission of the greater crime” (citation and quotations omitted). Commonwealth v. Porro, 458 Mass. 526, 531 (2010).6 We
repeatedly have reaffirmed our holding in Johnson, 461 Mass. at 52-53, that unlawful possession of ammunition is a lesser included offense of unlawful possession of a loaded firearm where the only ammunition at issue is contained in the firearm. See Commonwealth v. Rivas, 466 Mass. 184, 188-189 (2013); Commonwealth v. Charles, 463 Mass. 1008, 1008 (2012), cert.
b. Evidence of defendant‘s knowledge. In reviewing a claim of insufficient evidence, we ask “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). Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, we consider the sufficiency of the Commonwealth‘s evidence as to the defendant‘s knowledge whether the firearm he possessed was loaded.
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. See Commonwealth v. Cassidy, 479 Mass. 527, 537 (2018). “[K]nowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon.” Staples v. United States, 511 U.S. 600, 615 n.11 (1994) (“firing a fully automatic weapon would make the regulated characteristics of the weapon immediately apparent to its owner“). See Commonwealth v. Romero, 464 Mass. 648, 653 (2013) (“Proof of possession of [contraband] may be established by circumstantial evidence, and the inferences that can be drawn therefrom” [citation omitted]).
In this case, however, it was not possible to discern merely by observation whether the pistol found in the defendant‘s vehicle was loaded; the magazine was inserted inside the handle and was not visible. In addition, the Commonwealth did not present any evidence from which an inference could be drawn that the defendant was aware that the firearm was loaded. See Brown, 91 Mass. App. Ct. at 293 & n.13 (“In its brief, the Commonwealth defended the sufficiency of the evidence based only on its argument that it need not prove that the defendant knew that the gun
Accordingly, on the facts of this case, no rational trier of fact could have found beyond a reasonable doubt that the defendant knew the firearm was loaded, and the conviction of possession of a loaded firearm without a license cannot stand.
c. Closing argument. The defendant also challenges the propriety of certain portions of the prosecutor‘s closing argument in which he suggested that Cataquet might have been the defendant‘s “new” girl friend, and that, consequently, she had a motive to fabricate and might have given the statement about the gun in order to protect him.
In his closing argument, the prosecutor argued that this was “a case about confessions.” He urged the jury to credit Mahady‘s testimony concerning the defendant‘s statement about the gun, because he had no reason to lie, he did not “look” like he had been lying, and “his testimony makes sense.” By the same token, the prosecutor urged the jury to disbelieve Cataquet‘s written statement that the gun belonged to her and that the defendant was unaware that it was in the vehicle, as likely motivated by Cataquet‘s relationship with the defendant. In conjunction with that argument, the prosecutor emphasized inconsistencies in Cataquet‘s statement: Cataquet told police that the firearm had a “fully loaded clip” and that she had removed it from her purse because it was too heavy, yet the magazine was “half full”7 and no purse was collected from Cataquet at booking. The prosecutor then suggested that the defendant‘s relationship with his former girl friend must have ended recently, that Cataquet had remained in the vehicle when the defendant went to pick up clothes from his former girl friend‘s house “to avoid the ex,” and that “it is certainly possible that Cataquet was covering for her boyfriend.” The prosecutor then ended his closing as he had begun, by saying, “It‘s that simple: He said it was his gun. And this isn‘t a case about accusations. It‘s a case about confessions.”
The defendant contends that these suggested inferences were improper and that, as a result, a new trial is required. Because the
substantial risk standard requires us to determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.‘” Id., quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005). The Appeals Court did not determine whether the suggested inferences were reasonable, because it concluded that any error would not have created a substantial risk of a miscarriage of justice. See Brown, 91 Mass. App. Ct. at 294 (“We are confident that the jury‘s verdict would not have been different had the prosecutor not raised the possibility that the two individuals were dating“).
“Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence.” Commonwealth v. Coren, 437 Mass. 723, 730 (2002). Nonetheless, “[t]he inferences . . . need only be reasonable and possible and need not be necessary or inescapable,” Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993). “In analyzing a claim of improper argument, the prosecutor‘s remarks must be viewed in light of the ‘entire argument, as well as in light of the judge‘s instruction to the jury and the evidence at trial.‘” Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984), quoting Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984).
The prosecutor did not explicitly present the purported relationship as outright fact, arguing that “it is certainly possible” that the defendant and Cataquet were involved in a relationship, but the prosecutor did rely on this suggested inference. The defendant contends that such an inference was unreasonable where there was no evidence that the two were involved in a romantic relationship, particularly as there was a third passenger in the vehicle and Cataquet was in the back seat.
As the Commonwealth maintains, the suggested inference that the defendant and Cataquet were in a relationship did support a motive for lying, but, given the evidence introduced, the suggestion itself is, at best, a stretch. There was no evidence to indicate that Cataquet and the defendant were involved in a romantic relationship, and we do not adopt the Commonwealth‘s suggestion that being a rear seat passenger in a vehicle the defendant was driving, with another passenger in the front seat, would suggest as much. The inference that the defendant and Cataquet were involved in a romantic relationship so close that she would
Nonetheless, the discrepancies in Mahady‘s and Cataquet‘s statements were squarely before the jury, as was the lack of evidentiary support for Cataquet‘s statements. In the circumstances here, even if the challenged inference of a motive for a “coverup” was not reasonable, we conclude that there was no substantial risk of a miscarriage of justice in the prosecutor‘s statements. While the remarks should not have been made, the judge properly instructed the jury that closing arguments are not evidence and that they must “confine [their] consideration to the evidence and nothing but the evidence.” See Commonwealth v. Resende, 476 Mass. 141, 154-155 (2017). We are confident that the result of the trial would not have been different if the prosecutor had relied solely on the inconsistencies in Cataquet‘s statement in arguing that she was lying, and had not suggested that she and the defendant were involved in a relationship, or, indeed, had relied solely on Mahady‘s lack of a motive to lie in the course of his duty. The prosecutor properly urged the jury, several times, to use their “common sense” in considering Cataquet‘s statement. Whatever her motive for making it, the jury would not have drawn a different conclusion about the reliability of Cataquet‘s statement that she removed the gun from her purse (not found at the scene or at booking) because it was too heavy, and placed it in the rear seat console. Because it would have made no difference in the result, the challenged statements in the prosecutor‘s closing argument do not require a new trial.
3. Conclusion. The conviction of possession of a firearm without a license is affirmed. The conviction of possession of a loaded firearm without a license is vacated and set aside, and judgment shall enter for the defendant on that indictment.
So ordered.