50 Mass. App. Ct. 253 | Mass. App. Ct. | 2000
Tried to a District Court jury, each of the defendants was convicted of four charges
In addition to several police officers who responded to the telephone calls, only the second caller testified at trial. Her testimony differed somewhat from her 911 call.
The second caller also testified that, after first calling the police, she went back to the window. She saw two men come out of the house she had previously described, then go to an area at the side of that house where a dumpster and shed were located, remain there for about half a minute, then run back into
After the police arrived, they entered the house and knocked on the front door of the apartment to which the third caller had referred. The police identified themselves, but obtained no response, although they could hear movement inside. Other police, stationed at the rear entrance, saw a woman with a young child hurriedly walk out of the rear door. There was evidence that this woman occupied the apartment and that her name was on the mailbox. Upon entering the living room of the apartment, the police found the defendants Brown and Hurd sitting on a couch, slouched down, and another man, Edward Vasquez, on a second couch, and the defendant Goodwin kneeling or sitting on the floor between the couches.
After ordering the men to lie down on the floor, the police searched the living room, and found a loaded nine millimeter handgun under the couch where the defendants Hurd and Brown had been sitting. Searching outside the house, the police found a loaded, sawed-off shotgun in the dumpster and an unloaded .25 caliber handgun in the shed. There was evidence that three spent cartridges found nearby in the street had been fired from the .25 caliber handgun.
2. Discussion. The Commonwealth proceeded with two theories at trial. First, that each defendant could be found guilty of possession of one or more of the firearms as a joint venturer;
While there is support for an inference that the defendants ran from the area where gunshots were heard, that one or more of them had fired the .25 caliber handgun, and that they sought to conceal themselves from the police, they were not tried for any direct participation in the shooting. They were charged solely with unlawfully possessing guns and ammunition, and the Commonwealth treated the charges as presenting “a straight possession case.” These are not crimes with additional elements, as for example, discharging a firearm within 500 feet of a dwelling in use (see G. L. c. 269, § 12E). “There is no question that one may be found guilty as an accessory to a crime that involves possession as an element. ... To convict on a theory of accessorial responsibility, it is not necessary to show that the defendant himself possessed the [contraband], either actually or constructively, . . . but it is frequently said that it is necessary to show that the defendant aided in the possession and in each other element of the substantive offense.” Commonwealth v. James, 30 Mass. App. Ct. 490, 498-499 (1991) (citations omitted). “To establish liability under th[e] theory [of joint venture], ... it would not be necessary to prove that [a] defendant had possession — actual or constructive,” Commonwealth v. Pichardo, 38 Mass. App. Ct. 416, 416 n.l (1995), but only that an identified defendant was accessory to another identified defendant in possessing a firearm. Here, there is no evidence that any specific defendant aided another defendant in firing, or gaining or maintaining possession of, the guns, and thus no identified defendant can be linked as a joint venturer to possessing a specific weapon.
Accordingly, we examine the evidence to determine whether it was sufficient to sustain the alternative theory of possession. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). As to actual possession, there was no direct evidence, such as by observation, fingerprints, or paraffin tests,
We also conclude that the evidence is insufficient to sustain the charge that the defendants jointly and constructively possessed the nine millimeter handgun found under the couch. It was not in plain view, and was discovered only after the couch on which two of the defendants were sitting was lifted from the floor by the police. That couch sat low to the floor on legs only an inch or two high, and the police saw nothing under it until it was lifted. Although all the defendants were in close proximity to the gun, the police observed no suspicious movements on their part in relation to it. Moreover, while two of the men earlier were observed running as if “hugging themselves,” perhaps indicating they were carrying firearms, the third was seen running with his hands down. Lastly, the gun was loaded when it was found under the couch, and the spent shells found on the street were of a different caliber. On this state of the evidence, an inference that the nine millimeter handgun was in the apartment before the three defendants arrived, and that they had no knowledge of it, is at least as reasonable as an inference of recent possession. Compare Commonwealth v. Fancy, 349 Mass. 196, 200 (1965) (“When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof”).
Accordingly, because the joint venture theory was inapplicable and in any event failed of proof as to any charged crime,
Judgments reversed.
Verdicts set aside.
Judgments for the defendants.
The complaints against the defendants originally contained nine counts charging various crimes, including breaking and entering, armed assault in a dwelling, and drug offenses. Before the jury were empaneled, the complaints were amended twice, partly in order to permit the District Court to retain jurisdiction. At the conclusion of the Commonwealth’s case, the judge allowed in part the defendants’ motions for required findings, and directed the clerk to prepare an amended complaint containing just four charges. Ultimately, the jury rendered guilty verdicts on all four charges: possession of a firearm without a license, G. L. c. 269, § 10(a); possession of ammunition without a firearm identification card, G. L. c. 269, § 10(A); possession of a
Two statements the caller made in her telephone call were challenged at trial, and the caller modified them in her testimony. In the telephone call she reported that there were “three black males firing a gun in the parking lot.” She later testified that she heard gunshots, then went to her window and saw the three black males running. She acknowledged that she had not seen anyone with guns and that she had not seen any of the three men discharge a weapon or fire guns in the air.
In her call she stated that the three men “had hoodies on.” She later testified that she saw “[a]t least one, possibly two” with hoods.
Vasquez was charged with and tried on the same offenses as the defendants. His motion for required findings of not guilty on all the charges was allowed by the trial judge at the close of all the evidence.
As the defendant Brown argues, “it is hard to conceive that there could be many circumstances which could support an inference of a joint venture where the highest element of the offense charged is simple possession, and
Although there was evidence the .25 caliber handgun had been fired, no paraffin tests for gunpowder residue were performed on the defendants’ hands or clothing.
Nor is the Commonwealth aided by its reliance on a consciousness of guilt theory. Even if the conduct of the two men near the dumpster and the shed gives rise to an inference of possession through the concealing of the firearms found there, there is no identification of which two of the three defendants were involved. With respect to the nine millimeter handgun found in the apartment, even if we assume the defendants were hiding from the police in the darkened living room, there is no evidence to support an inference that they placed the gun there or knew of its presence. Mere proximate presence does not support such an inference. See Commonwealth v. Brown, 34 Mass.
Because of our decision, we need not address other issues raised by the defendants.