442 Mass. 748 | Mass. | 2004
A jury of six in the District Court convicted the defendant of possession of a firearm (a Colt .45 caliber semiautomatic handgun) without a license, in violation of G. L. c. 269, § 10 (a). Police officers discovered the handgun protruding from under the front passenger seat of an automobile in
The evidence, considered in the light most favorable to the Commonwealth, permitted the jury to find the following facts. At approximately 1:30 a.m. on October 3, 1999, a fight involving twelve to fifteen people broke out in the parking lot of Shooters Sports Bar in Dracut. Three police officers
The officers caught up before the Honda began to move and while the driver’s side door was still partially open. One officer stationed himself in front of the automobile on the driver’s side, and ordered the person seated in the driver’s seat (subsequently identified as the defendant) to show his hands. Although the officer repeatedly commanded the defendant to show his hands, the defendant did not comply, but instead kept his hands hidden from the officer’s view. The defendant then leaned forward and over to the right. He sat straight back up in his seat and raised his hands. As the defendant sat up in his seat, the man in the front passenger seat made a forward movement. The defendant then showed his empty hands to the officer, and, keeping his hands in plain sight, got out of the automobile and was secured by police officers, along with his three companions, on the ground.
A subsequent search of the Honda revealed a handgun lying on the floor mat of the vehicle’s front passenger side. The weapon was easily spotted because its entire handle, and a portion of the barrel, extended out from under the seat, in plain view of the officer conducting the search, who was standing outside of the open front passenger side door. The handgun was lying closer to the driver’s side than to the window side of the floor mat and (the jury could reasonably infer) would also have been within the vantage point of anyone seated in the driver’s seat, because the interior of the automobile was compact and only a small console area separated the two front seats. The officer knelt down and grabbed the handgun. He cleared the weapon by removing a round from the chamber, removed the magazine (which contained three more rounds), and then slid the handgun in his waistband. The defendant was charged by a complaint in the Lowell Division of the District Court Department with possession of a handgun without a license.
1. The judge denied the defendant’s motions for the entry of a required finding of not guilty presented at the close of the
The Commonwealth proceeded on the theory that the defendant constructively possessed the handgun. See Commonwealth v. Sespedes, ante 95, 99 (2004); Commonwealth v. Daley, 423 Mass. 747, 752 (1996). “Constructive possession” requires proof that the defendant had “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Sespedes, supra, quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989); Commonwealth v. Ortega, 441 Mass. 170, 174 (2004); Commonwealth v. Boria, 440 Mass. 416, 418 (2003); Commonwealth v. Garcia, 409 Mass. 675, 686 (1991); Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). The Commonwealth may prove knowledge of the contraband by circumstantial evidence, see Commonwealth v. Sespedes, supra, and the defendant concedes in his brief that the evidence warrants a reasonable inference to that effect. The evidence also warrants the reasonable inference that the defendant had the ability and the intention to exercise control over the handgun found in the vehicle.
The defendant’s conviction was based on evidence that, as he and others fled from the disturbance outside the sports bar, a crowd of people yelled, “He’s got a gun.” When stopped by the police, the defendant first leaned forward and to the right before complying with the order to raise his hands. A loaded handgun was found protruding from under the passenger seat in the vehicle he was operating. It could be reasonably inferred that the defendant had hurriedly placed the handgun under the passenger seat before raising his hands to the police.
2. We now consider the defendant’s challenge to the judge’s instructions on the elements of constructive possession. The defendant claims that the instructions require reversal because they contained a mixture of correct (requiring knowledge, ability to control, and intention to control) and incorrect instructions (requiring only knowledge and control, or only ability and intention to control) that rendered the charge “misleading and confusing.” The defendant did not object to the instructions, so we review for any error that could have created a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750 (2000); Commonwealth v. Alphas, 430 Mass. 8, 13 (2000). Our duty is to look at “the charge as a whole to determine whether it fairly instructs the jury.” Commonwealth v. Richardson, 429 Mass. 182, 185 (1999), quoting Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). Examining the charge in its entirety, we discern no error.
The judge correctly instructed the jury that in order to convict the defendant of the charge of unlawful possession of a firearm, the Commonwealth must prove, beyond a reasonable doubt: (1) possession or control of a handgun in a vehicle; (2) that the handgun met the legal definition of a firearm; and (3) knowledge, on the part of the defendant, that he possessed or controlled the handgun. The judge then cautioned the jury that “to establish that a firearm was under the defendant’s control in a vehicle it is not enough for the Commonwealth just to prove that the defendant was present in the same vehicle as the firearm.” To emphasize the latter point, the judge advised the jury, four times, in the language set forth below,
The judge then told the jury that he was going to read them some definitions of possession and instructed as follows:
“What does it mean to possess something? A person obviously possesses something if he has direct physical control or custody of it at a given time. In that sense, you possess whatever you have in your pocket or purse at this moment. However the law does not require that someone have actual physical custody of an object to possess it. An object is considered to be in a person’s possession if he has the ability to exercise control over that object either directly or through another person. For example, the law considers you to be in possession of things which you*754 keep in your bureau drawer at home or in a safe deposit box at your bank.
“Whether the defendant possessed the firearm is something you must determine from all the facts and any reasonable inferences that you can draw from the facts. However I caution you to remember that merely being present in the vicinity of a firearm even if one knows it is there does not amount to possession.
“To show possession there must be evidence justifying a conclusion that the defendant had the power and the intention to exercise control over the firearm. Only then may the defendant be considered to have possessed the firearm.
“A person can possess something even if he’s not the sole owner or holder. For example, a person is also considered to possess something which he owns or holds jointly with another person who is keeping it for the both of them. A person is also considered to possess something which he owns or holds jointly with another person and which they’ve agreed to deposit somewhere, but where both of them have access to it.
“Finally, it might be helpful to you. Possession implies control and power, exclusive or joint or in the case [of] constructive possession, that is when you don’t have actual possession, knowledge coupled with the ability and intention to exercise dominion and control. Possession may often be inferred from proximity joined with knowledge. But the reasonableness of such an inference depends on all the circumstances.”
The judge gave the above quoted instructions once in his main instructions at the close of the case and again (with the exception of the omission of the final paragraph) in response to a specific jury request for reinstruction on possession. The first four paragraphs of the judge’s instructions are taken verbatim from the model instructions on possession set forth in the Model Jury Instructions for Use in the District Court. See Instruction 3.11 of the Model Jury Instructions for Use in the District Court
We address two remaining challenges to the instructions raised by the defendant. The judge prefaced his instructions on possession with the following statement. “If I can find them, I’m going to give you some definitions of possession, but I’ve just lost them temporarily. Here it is. This is some definition of possession that might help you.” We reject the defendant’s claim that the statement minimized the importance of the instructions on possession. The judge’s remarks were obviously made offhand while he looked through his materials to find the standardized instructions he was about to deliver. The segue was normal conversation which, if anything, may have benefited the defendant by focusing the jury’s attention on the importance of the upcoming instructions. If the defendant’s trial counsel had considered the judge’s words in any way prejudicial, it was up to him to alert the judge to the problem. No objection was made. We also reject the defendant’s claim that the judge’s instructions may have lessened the Commonwealth’s burden of proof on the intention element. The jury were instructed eight times on the Commonwealth’s burden of proof. They also explicitly were cautioned three times that possession could not
Judgment affirmed.
One officer, in full uniform, was working, on behalf of the Dracut police department, a paid detail for Shooters Sports Bar. The other two officers, also members of the Dracut police department, were off duty at the time of the events related above.
Other charges against the defendant based on the same incident, of public drinking (dismissed) and disorderly conduct (required finding of not guilty), are not part of this appeal.
The defendant suggests that this inference is undercut by evidence that the passenger also leaned forward. The sequence, however, was that the defendant did so first, and the passenger’s subsequent movement suggests that the pas
“Now to establish that a firearm was under the defendant’s control in a vehicle it is not enough for the Commonwealth just to prove that the defendant was present in the same vehicle as the firearm. . . . [1] The Commonwealth must also prove that the defendant knew that the firearm was there and that the defendant had the power to exercise control over the firearm although this did not have to be exclusive control. As I mentioned before, [2] the Com
The instructions given by the judge came directly from Instruction 5.60 (setting forth the elements of the offense forrad in G. L. c. 269, § 10 [a]) and Instruction 3.051 (explaining the element of knowledge) provided in the Model Jury Instructions for Use in the District Court (1995).