The defendant, Hal McIntosh, appeals from his convictions on three indictments charging him with (1) possession of a firearm, second and subsequent offense; (2) possession of ammunition; and (3) possession of a loaded firearm. On appeal, the defendant claims that the judge committed reversible error in denying his motion for a required finding of not guilty on all three indictments. The defendant also contends that his trial counsel was constitutionally ineffective.
1. Evidence at the trial. Because the defendant challenges the sufficiency of the evidence, we summarize in detail the evidence, considering it in the light most favorable to the Commonwealth. Commonwealth v. Rodriguez, 456 Mass. 578, 579 (2010). On January 7, 2007, Officer Sean Rooney was in a marked police cruiser and in uniform, patrolling an area in the Mattapan section of Boston. He was alone in his cruiser but was accompanied by another marked cruiser, operated by Officer Charlie Daniels. At about 6:30 p.m., the two police officers drove by 43 Harvard Street and observed two males standing outside on the top front step of the building. One was later identified as Daishaun Brown; the other was later identified as the defendant. The defendant made eye contact with Officer Rooney and then immediately turned and opened the outer door of 43 Harvard Street, but was unable to enter the building.
The officers parked their cruisers and spoke to the individuals. Officer Rooney spoke to the defendant, the other officer with Brown. Officer Rooney asked the defendant “if he lived there and needed help with regard to getting access.” Both individuals seemed a little nervous and a little apprehensive but the defendant was not the subject of a patfrisk at that time. In answer to Officer Rooney’s questions, the defendant stated that he did not live at that house, but was waiting for someone. At Officer Rooney’s request, the defendant produced an identification card, handing it to the officer with his left hand. At that time, the defendant was also holding a cellular telephone, “scrolling through and using the walkie-talkie feature.” While Officer Rooney was copying the defendant’s identification card information, the defendant placed a full-fingered baseball batting glove on his right hand.
At that point, the owner of the building, Ms. Lewis, opened the door of the first-floor apartment that had been locked, came out, and asked, “What’s going on?” Ms. Lewis was then asked, apparently by the defendant, “Is Seyon there?” Ms. Lewis told the defendant that she did not know him (the defendant) and that “there’s no one here.” The defendant responded, “Well, Seyon has my thing, and I need to get it.”
Officer Rooney went back to the bedroom where he was informed that Ms. Lewis’s grandson, Kamau, occupied the room and was taking a shower. Officer Rooney suggested that they shut the door, wait for Kamau to return, and have him inspect his room to see if anything was missing, or if there was something in the room that should not be there.
Kamau finished his shower and joined Ms. Lewis and Officer Rooney. Kamau had known the defendant for about four or five
The defendant did not testify at trial but through cross-examination and the testimony of the defendant’s companion, Brown, offered the theory that he neither had the firearm on his person nor placed it under the mattress and that another individual, possibly Kamau, placed the gun there.
2. Sufficiency of the evidence. At trial, the Commonwealth proceeded on the theory that at the time the defendant was first confronted by Officer Rooney, the defendant was in actual possession of the firearm. Because the defendant was afraid that Office Rooney would discover the firearm, the defendant ran into the bedroom and placed the firearm under the mattress. The case was put to the jury on alternative theories of the defendant’s actual or constructive possession of the firearm. On appeal, the defendant claims that the judge committed reversible error when he denied the defendant’s motion for a required finding of not guilty because the evidence at the close of the Commonwealth’s case was insufficient to convict him under either theory.
We review the denial of the motion for a required finding of not guilty “to determine whether the evidence offered by the Commonwealth was sufficient to permit the jury to infer that the Commonwealth has met its burden of proving the essential elements of the crimes charged beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).” Commonwealth v. Rodriguez, 456 Mass. at 582. Here, the actual possession theory advanced by the Commonwealth was not based on observations or fingerprints, but rather relied entirely on circumstantial evidence. Commonwealth v. Martino, 412
The evidence presented at trial supported an inference that the defendant placed the firearm under the mattress. When first seen by the police, the defendant was attempting to enter 43 Harvard Street but was unable to open the door. When confronted by the police, he appeared “nervous” and “apprehensive.” While talking to the police, the defendant placed a baseball batting glove on his right hand. Thereafter, when Ms. Lewis opened the previously locked door to the first-floor apartment and came out, the defendant pushed her to one side and ran into the apartment.
The evidence was also sufficient as to constructive possession. “ ‘Constructive possession’ requires proof that the defendant had ‘knowledge coupled with the ability and intention to exercise dominion and control.’ ” Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004), quoting from Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). Knowledge may be established by circumstantial evidence “if the evidence warrants a reasonable inference to that effect.” Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 592 (2007), quoting from Commonwealth v. Garcia, 409 Mass. 675, 686 (1991). Intent to exercise dominion and control can be inferred from the defendant’s conduct. See Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995). “It is settled . . .
Therefore, we reject the defendant’s claim that the evidence was insufficient to support his convictions of possession of a firearm and possession of ammunition.
3. Ineffective assistance of counsel. On appeal, the defendant claims that his trial counsel was constitutionally ineffective because of misstatements made in his closing argument. “The occasions when a court can resolve an ineffective assistance claim on direct appeal are exceptional, and our case law strongly disfavors raising ineffective assistance claims on direct appeal.” Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). “The claim may nevertheless be resolved on direct appeal when ‘the factual basis of the [ineffective assistance] claim appears undisputedly on the trial record.’ ” Commonwealth v. Livington, 70 Mass. App. Ct. 745, 748 (2007), quoting from Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). We consider the defendant’s claim under that “narrow exception.” Commonwealth v. Lynch, 70 Mass. App. Ct. 22, 29 n.6 (2007).
The standards on which the effectiveness of counsel will be evaluated are well known. “The defendant must show that counsel’s performance ‘f[ell] measurably below that which might be expected from an ordinarily fallible lawyer’ and that, as a result, the defendant has been deprived of ‘an otherwise available, substantial ground of defence.’ ” Commonwealth v. McCrae, 54 Mass. App. Ct. 27, 29 (2002), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the defendant argues that certain misstatements in defense counsel’s closing argument deprived him “of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, supra at 96.
The defense theory at the trial was that the defendant never possessed the firearm, and accordingly did not place it under the mattress. Further, the defendant claimed that others placed
Defense counsel’s comment was a complete misstatement of Ms. Lewis’s testimony and was prejudicial because it undermined the defense advanced at trial.
The Commonwealth argues that the judge’s instructions to the jury cured any error caused by the closing arguments. The judge gave the standard instructions as to the purpose of counsels’ closing arguments and that the jurors, not the lawyers, are the fact finders. The instructions, however, did not address the errors in specific terms. Commonwealth v. Beaudry, 445 Mass. 577, 585 (2005).
So ordered.
Seyon Marshall lived in the first-floor apartment in a room across the hall from a room occupied by Kamau Lewis. Kamau and Seyon are Ms. Lewis’s grandsons. It was in Kamau’s room that a gun was found.
Officer Rooney testified that the defendant “ran into” the apartment. Ms. Lewis testified that the defendant “walked” into the apartment, but did not run. Because we accept the evidence in the light most favorable to the Commonwealth, we take Officer Rooney’s version. Defense counsel, however, in his closing argument also adopted Officer Rooney’s version, an error we address later in the opinion.
Defense counsel further undermined the defense by stating three times during his closing argument that the defendant “ran” or had “run” into the apartment. Although there was a basis for those statements based on Officer Rooney’s testimony, Ms. Lewis testified that the defendant “walked in. He didn’t run.” See note 2, supra. Defense counsel should not have assumed the correctness of the testimony less favorable to the defendant on the point. See Commonwealth v. Triplett, 398 Mass. 561, 568-569 (1986).