Commonwealth v. Romero , 80 Mass. App. Ct. 791 ( 2011 )

Meade, J.

After a jury trial, the defendant was convicted of carrying a firearm without a license, in violation of G. L. c. 269, § 10(a). On appeal, he claims that (1) there was insufficient evidence to support his conviction, (2) the admission of a ballistics certificate in evidence violated his confrontation rights, and (3) his statements to the police were improperly admitted in evidence. We affirm.

1. Background, a. The Commonwealth’s case. On April 23, 2008, at approximately 1:30 a.m., Sergeant Dennis M. Deveney, Jr., of the Waltham police department was on patrol in the area of Moody Street. Deveney’s attention was drawn to a small, black BMW two-door sports coupe parked on Chestnut Street, which intersects with Moody Street. The car held four individuals. When Deveney drove past the car, he could only see the tops of their heads, and they were all slouched down low in their seats. Although Moody Street was well lit during the early morning, Chestnut Street was much darker.

Deveney also saw that the car’s interior dome light was on, but as he drove past the car in his marked police cruiser, the light was extinguished. Within a couple of minutes, Deveney turned around and drove back to Chestnut Street and parked thirty feet behind the car to further observe the car and its occupants. Without activating his blue lights, Deveney got out of his cruiser and walked toward the car. He approached the car on the passenger’s side. When he reached the vehicle, he stood about three to five feet away and looked inside at the occupants. The front passenger’s-side window was cracked open about two inches and Deveney could hear music playing. From his observation point, Deveney could see the rear driver’s-side passenger reach toward the front of the car through the middle of the two front seats. While this occurred, Deveney saw the defendant, who was the owner and operator of the car, looking from side to side and watching the front seat passenger, Eduardo Alvarez, examining an object in his hand. The defendant was seated between twelve and eighteen inches away from Alvarez.

At this point, Deveney shined his flashlight into the vehicle’s interior and said something to the effect of, “Hey, what’s going on guys?” Alvarez turned toward Deveney with a panicked look on his face and dropped the object he was holding into his lap. When Deveney trained the light on the object, he could see it was a black handgun. Deveney opened the car door, drew his service weapon, pointed it at Alvarez, and called for backup. When backup arrived, the occupants were removed from the car.

Deveney removed the defendant to an area about thirty feet away from the car. The defendant claimed that he had no knowledge that there was a firearm in his car, nor did he know that it was being passed around. The defendant did admit that he knew that, in general, Alvarez had a gun, but he did not know that Alvarez had it in the car that night. The defendant also admitted that he had been at Alvarez’s Chestnut Street home earlier that afternoon around 4:00 p.m. He told Deveney that Alvarez had handed him a gun outside the home, which the defendant held for ten to fifteen seconds before he returned it to Alvarez. The defendant was then arrested.

Officer Kevin Sullivan took custody of the gun at the scene and determined that it was unloaded. Deveney returned with an evidence bag, and Sullivan placed the gun in the bag. Deveney took control of the weapon at that time. At the police station later that morning, Sullivan had an opportunity to look at the gun again. He saw that the gun’s serial number had been filed off and covered in black paint. After Sullivan saw this, Deveney secured the gun with a cable lock, put the gun back into the evidence bag, placed the bag in a gun box, and placed it into evidence storage at the Waltham police department. The gun was later sent to the State police crime laboratory to determine whether it was capable of discharging a five round of ammunition. When the gun was returned to the Waltham police department in the same evidence bag, it was accompanied by a small manila envelope containing a discharged round of ammimition. Also accompanying the gun was the State police ballistician’s certificate, which indicated that the firearm had been test fired and that it was an operating firearm.

b. The defense. The defendant testified that he had left work around 4:30 p.m. on April 23, 2008, to take his girlfriend out to dinner. While waiting in his vehicle at the curb of his girlfriend’s house, the defendant was approached by his girlfriend’s brother, Eduardo Alvarez. Alvarez walked around to the driver’s side window and showed the defendant a firearm. The defendant looked at the firearm, touched it, and returned it to Alvarez. The defendant then left with his girlfriend on their dinner date in Boston.

Around midnight, the defendant drove his girlfriend back to her home. When they arrived back at her house, her two brothers, including Alvarez, were waiting outside. Alvarez asked the defendant to take the two brothers for a ride in his new car, and the defendant agreed. A short time later, the defendant drove back to the house and pulled up to the curb where he had earlier parked. According to the defendant, the police arrived just as his girlfriend’s brothers were preparing to exit the vehicle.

The defendant had seen the police drive by him on Moody Street, but he was unconcerned as he was not doing anything wrong. Within a few minutes, the defendant testified, Deveney was asking them what they were doing. He denied knowing the gun was in the car, and did not see it in the car. The defendant acknowledged that he told Deveney that he had seen the gun earlier that day.

2. Discussion, a. Sufficiency of the evidence. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant ‘question is 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). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, supra.” Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 630 (2010).

Here, the Commonwealth’s case against the defendant was presented on the theory of constructive possession. To prove constructive possession of a firearm, the Commonwealth must establish the defendant’s “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). A defendant’s “knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). In constructive possession cases, a defendant’s presence alone is not enough to show knowledge, or the ability and intention to exercise control over the firearm, but “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).

The defendant first claims that there was insufficient evidence to support the inference that he had knowledge of the firearm. We disagree. In the light most favorable to the Commonwealth, Sergeant Deveney observed the firearm in the defendant’s car, on the lap of his front seat passenger, while the defendant was sitting in the driver’s seat a little more than a foot away. This was sufficient to establish the defendant’s knowledge of the weapon. See Commonwealth v. Albano, supra at 135 (“Knowledge may be inferred when the prohibited item is found in open view in an area over which the defendant has control”). In addition, from Sergeant Deveney’s testimony, a rational jury could infer that the gun was being passed around the interior of the vehicle. “Although not overwhelming, taken in the light most favorable to the Commonwealth, this evidence provided a sufficient basis for a juror to infer that the defendant knew about and had the ability to exercise dominion and control over [the firearm] . . . .” Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 681-682 (2006).

The defendant next claims that there was insufficient evidence to establish that he had the ability and intent to exercise dominion and control over the firearm. Again, we disagree. In addition to the defendant’s presence in the car and his knowledge of the gun, there was other incriminating evidence, i.e., “plus factors,” to warrant the inference that the defendant intended to exercise control over the firearm. See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 226 (1993). Primary among the other incriminating evidence were two important plus factors: the defendant was the owner and operator of the car in which the firearm was found. See Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 638 (2005) (ownership of vehicle is inculpatory factor); Commonwealth v. Aiello, 49 Mass. App. Ct. 496, 498 (2000) (“knowledge of the presence of drugs or of weapons more readily warrants an inference of control against a driver than a passenger”) (footnote omitted); Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 416 (1996) (defendant driver’s control of vehicle was of equal significance to ownership); Commonwealth v. Gray, 5 Mass. App. Ct. 296, 298 (1977) (where defendant driver knew of presence of weapons, “[t]hese factors, taken together, were sufficient to permit the jury to infer that the weapons were under the defendant’s control in a vehicle”). Cf. Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991) (ownership of and presence on premises are relevant inculpatory factors).

An owner and operator of a motor vehicle, who has knowledge of the presence of a firearm, unquestionably has the ability to exercise dominion and control over that firearm. If the owner and operator of the car chooses not to exclude a passenger who he knows has a weapon, it is a reasonable inference that the owner and operator also has the intent to exercise dominion and control over the firearm as he does over the car itself. While this is not a required inference from these circumstances, such certitude is not a necessary part of our review. See Commonwealth v. Casale, supra at 173 (“inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable”).

A third plus factor was the proximity of the firearm to, and in plain view of, the defendant. When viewed in the light most favorable to the Commonwealth, it is a fair inference that the firearm was being passed among the occupants of the car as Sergeant Deveney stood nearby. Deveney could see inside the car, where Alvarez sat in the front passenger seat. When Deveney shined his flashlight inside the vehicle, Alvarez looked “panicked” and dropped the gun on his lap. In the small, two-door automobile, the defendant sat a mere twelve to eighteen inches away from Alvarez.² See Commonwealth v. Aiello, supra (possession “may often be inferred from proximity conjoined with knowledge”); Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998) (gun’s location near defendant in car was proper consideration on question of dominion and control).

A fourth plus factor can be found in the defendant’s behavior, that of his passengers, as well as the time and location of the incident. At 1:30 a.m., the defendant chose to park his car on the much darker Chestnut Street instead of the well-lit Moody Street with which it intersected.³ All four occupants were “slouched” down in their seats, leaving only their heads and the very tops of their torsos visible from the outside. The interior light was on, but it was extinguished when Deveney passed by in his police cruiser. While Deveney observed the firearm being passed from the back to the front of the car, the defendant was looking from side to side and watching Alvarez as he examined the firearm in his hand.⁴

From the evidence that all four occupants were slouched down in their seats, the jury could conclude that this behavior was not simply indicative of collective bad posture. Rather, when viewed favorably towards the Commonwealth, it suggests that all four, and not just those who touched the gun, were engaged in a surreptitious criminal activity that they endeavored to conceal from view. This inference is buttressed by the fact that the car was parked on a dark street at 1:30 a.m., but even more so by the fact that the interior light went off upon the arrival of a police officer. Finally, the defendant’s searching or furtive head movements could reasonably be understood to have been made in an effort to avoid detection of the ongoing criminal activity within the car.⁵ See Commonwealth v. Albano, 373 Mass. at 133-135 (proper considerations on question of dominion and control are time of day, place, and defendant’s behavior and knowledge); Commonwealth v. Bailey, 29 Mass. App. Ct. 1007, 1008 (1990) (same).

From the combination of the defendant’s presence, his knowledge, and the above plus factors, a rational jury, employing common sense, see Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976) (“Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense”), could reasonably find that the defendant had the requisite ability and intent to exercise dominion and control over the firearm. See Commonwealth v. Maillet, 54 Mass. App. Ct. 910, 911 (2002) (“plus factors” of varying potency may collectively establish a reasonable inference of intent). As has been stated in the context of a joint venture, “[t]he line that separates mere knowledge of unlawful conduct and participation in it, is ‘often vague and uncertain. It is within the province of the jury to determine from the evidence whether a particular defendant [has] crossed that line.’ ” Commonwealth v. Longo, 402 Mass. 482, 487 (1988), quoting from Commonwealth v. Cerveny, 387 Mass. 280, 287 (1982).

Finally, relative to the sufficiency of the evidence, the defendant requests that we employ the well-worn axiom that “[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.” Commonwealth v. Croft, 345 Mass. 143, 145 (1962), quoting from Commonwealth v. O’Brien, 305 Mass. 393, 400 (1940). Specifically, the defendant claims that the facts developed at trial could equally be reconciled with his lack of knowledge, and further that his statements to the police and his conduct were entirely consistent with innocence. Be that as it may, there is considerable doubt that there remains any vitality in the “equal and inconsistent” concept. The concept was bom here in the Commonwealth in the Nineteenth Century in a tort action. See Smith v. First Natl. Bank, 99 Mass. 605, 612 (1868) (“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”). By 1933, the concept was adopted at the Federal level, see Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333, 339-340 (1933) (citing Smith v. First Natl. Bank with approval), but that adoption was short lived as it was abandoned in Lavender v. Kurn, 327 U.S. 645, 652-653 (1946). See Planters Mfg. Co. v. Protection Mut. Ins. Co., 380 F.2d 869, 873-874 (5th Cir. 1967) (recognizing the abandonment of Chamberlain in Lavender), cert. denied, 389 U.S. 930 (1967); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1325 (11th Cir. 1982) (same). See also Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 114-115 (1963) (“It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences”); Wratchford v. S.J. Groves & Sons Co., 405 F.2d 1061, 1066 (4th Cir. 1969) (“The old notion that a jury should not be allowed to draw any inference from circumstantial evidence, if the one is as probable as the other, has fallen into discard and has been replaced by the more sensible rule that it is the province of the jury to resolve conflicting inferences from circumstantial evidence”); 9B Wright & Miller, Federal Practice and Procedure § 2528 (3d ed. 2008) (equally probable inference concept is no longer the rule in Federal courts because it is impossible to determine whether two or more reasonable inferences are equal without weighing the evidence, which is exclusively the province of a jury).

Perhaps most importantly, the concept appears to be at odds with much of what the Supreme Court decided in Jackson v. Virginia, 443 U.S. at 318-319, which is our Latimore standard. In Jackson v. Virginia, the Court held that a reviewing court is simply not permitted “to make its own subjective determination of guilt or innocence.” Id. at 319 n.13. In other words, our appellate office does not permit us to reweigh the evidence ourselves to determine whether the jury made the correct guilt or innocence determination, but rather, after viewing the evidence in the light most favorable to the prosecution, we may only determine whether the jury made a rational decision regarding the defendant’s guilt. See Herrera v. Collins, 506 U.S. 390, 402 (1993); Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir. 1995), cert. denied, 516 U.S. 853 (1995). Indeed, “a reviewing court ‘faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’ ” McDaniel v. Brown, 130 S. Ct. 665, 673 (2010), quoting from Jackson v. Virginia, supra at 326. See Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981), quoting from Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978) (“To the extent that conflicting inferences are possible from the evidence, ‘it is for the jury to determine where the truth lies’ ”).

Moreover, Jackson holds that for evidence to be sufficient, the prosecution does not have “an affirmative duty to rule out every hypothesis except that of guilt. . . .” Jackson v. Virginia, supra. Or, as the Supreme Judicial Court has formulated, the “Commonwealth need not ‘exclude every reasonable hypothesis of innocence to prove its case, if the record viewed in its entirety supports a conclusion of guilt beyond a reasonable doubt.’ ” Commonwealth v. Platt, 440 Mass. 396, 401 (2003), quoting from Commonwealth v. Merola, 405 Mass. 529, 533-534 (1989). The qualitative nature of the Jackson inquiry renders dispensable hypotheses of innocence; it is not a quantitative inquiry. In order for the evidence to be sufficient, the Commonwealth does not bear a burden of disproving plausible scenarios of innocence even if they are numerically equal to those which support guilt. This is because a reviewing court is not free to reweigh the evidence and set aside a jury verdict merely because the jury could have drawn different inferences or conclusions or because the court believes that another result is more reasonable. Rather, since the jury found the defendant guilty, we must defer to its resolution of the conflicting inferences in favor of the prosecution. Jackson v. Virginia, supra. See Stewart v. Coalter, supra (“A rational jury might well have acquitted without violating its oath; but drawing all reasonable inferences in favor of the prosecution, a rational jury could also convict”).

Finally, be it legal maxim or anachronistic canard, the “equal and inconsistent” concept does not apply to the circumstances of this case. The concept applies, if at all, “to situations in which any view of the Commonwealth’s evidence, however favorable, still requires a leap of conjecture with respect to essential elements of the crime charged in order to obtain a conviction.” Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998). The defendant’s claim here simply asks that we view the evidence and weigh the inferences in his favor, but this we cannot do. At bottom, the jury’s conclusion of guilt did not require a leap of conjecture with respect to the defendant’s knowledge and intent, and that evidence was simply not in equipoise with the defendant’s theory of innocence. See Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 265 (2010).

b. The ballistics certificate. At trial, the Commonwealth offered, over the defendant’s objection, the ballistics certificate that was prepared by the State police laboratory at the request of the Waltham police. The Commonwealth now concedes that, in light of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and its progeny, the admission of the certificate without accompanying testimony from the certifying analyst was error. The Commonwealth further asserts, however, that the error was harmless.

Because the defendant objected to the admission of the certificate, we analyze the admission of the certificate to determine whether the error was harmless beyond a reasonable doubt.⁶ See Commonwealth v. Vasquez, 456 Mass. 350, 355-360 (2010). In other words, we must “be satisfied, beyond a reasonable doubt, that the erroneously admitted certificate[] of analysis had little or no effect on the verdict[].” Id. at 362.

Our analysis on this point is controlled by Commonwealth v. Depina, 456 Mass. 238, 247-253 (2010). In Depina, the firearm at issue was offered through the testimony of a New Bedford police sergeant and a New Bedford police officer. The State police trooper who had conducted the firearm’s testing did not testify. At trial, the police officer testified to the recovery of the weapon and the placement of the weapon into a gun box and then into a locked cabinet at the police station. Id. at 249-250. She also testified to turning the weapon over to the police sergeant who was the commander of the firearms division. Id. at 250. The sergeant testified that when he inspected the weapon, it was loaded, and he explained the difference between live rounds and a spent round. Ibid. He then explained that the weapon and the ammunition were sent to the State police laboratory. Ibid. When the weapon was returned to him in New Bedford, along with the certificate, the gun box contained the weapon and spent casings and only one live round.

The Supreme Judicial Court held that the admission of the certificate in these circumstances was harmless beyond a reasonable doubt. The return of the spent casings along with the weapon permitted the jury to reasonably infer beyond a reasonable doubt that the State police had test fired the weapon. Id. at 250-251. These facts and the court’s ruling in Depina are controlling here.

Officer Sullivan had control of the weapon at the scene until Sergeant Deveney took control of the weapon and placed it in an evidence bag. When Deveney returned to the station, Sullivan watched as Deveney put a cable lock on the weapon and placed it in a gun box. Deveney then marked the box and placed a copy of the report in the box; then he put the box in the evidence locker. The evidence officer then logged the gun box and sent it to the State police laboratory for testing.

Deveney further testified that the gun box was returned to the evidence locker from the State police laboratory. He brought the gun box to court and testified that the gun box contained the weapon he seized from the defendant’s car. The weapon had been tagged by the State police ballistician after it had been test fired. The gun was in the original evidence bag, and with the gun were the cable lock and a small manila envelope that contained a discharged round of ammunition from the weapon along with the certificate at issue here. As in Depina, supra, here the jury could infer from this evidence that the weapon was a working firearm.

Our conclusion is further supported by the fact that after the certificate was introduced in evidence, neither party mentioned it again during the trial or in their closing arguments. Also, the judge did not give a standard instruction to the jury that the certificate was prima facie evidence that the gun was a firearm, but only that the jury could consider it with all the relevant evidence when determining if the Commonwealth had met its burden of proof. This resulted in the certificate carrying significantly less evidentiary weight than it would ordinarily.

c. The defendant’s statements. Finally, the defendant claims that his statements made at the scene to Sergeant Deveney were inadmissible hearsay. We disagree. The defendant’s statements constituted admissions, and were properly admitted on that basis. See Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998); Mass. G. Evid. § 801(d)(2)(a) (2011).

Judgment affirmed.

2 The dissent considers it significant that Sergeant Deveney did not observe the defendant touching the firearm. See post at 805. Suffice it to say the Commonwealth’s theory of prosecution was that of constructive, not actual, possession.

3 The dissent’s assertion that the defendant merely chose to park where he did because that was where his girlfriend resided is evidence derived from the defendant’s testimony, which the jury were not required to accept. See post at 810. Similarly, the dissent’s proffered inference that Alvarez brought the firearm from his Chestnut Street house and would have returned there with it is also drawn from the defendant’s testimony, which the jury were free to reject. See post at 805-806. In both these instances, and as a recurring theme, the dissent improperly seeks to draw inferences from the defendant’s evidence rather than viewing the evidence in the light most favorable to the Commonwealth.

4 Contrary to the dissent’s view, the fact that the firearm was not loaded does not negate the reasonable inference of the defendant’s intent to exercise dominion and control over the firearm. See post at 806, 807. Rather, had the firearm been loaded, the defendant would have been charged with an additional offense and punished differently if convicted thereof. See G. L. c. 269, § 10(re) (possession of loaded firearm shall be further punished by imprisonment from and after sentence for violation of G. L. c. 269, § 10(a), not to exceed two and one-half years). Also contrary to the dissent’s suggestion, establishing the defendant’s purpose for his constructive possession of an illegal firearm is not a burden the Commonwealth bears. See post at 807-808.

5 We do not, as the dissent claims, conflate the defendant’s knowledge of the firearm with his intent to exercise dominion and control over it. See post at 808, 809. Rather, as illustrated above, the entirety of the Commonwealth’s evidence, and the enumerated plus factors, demonstrate that a rational jury was entitled to conclude that the defendant possessed the necessary intent. Also, that the dissent chooses to conclude that the defendant’s slouching behavior is more reasonably indicative of his knowledge and not his intent is simply a choice between reasonable inferences. However, Jackson and Latimore do not empower this court to make that choice. See Jackson v. Virginia, supra at 326 (reviewing court must defer to conflicting inferences in favor of the prosecution).

6 The trial in this matter was prior to the Supreme Court’s opinion in Melendez-Diaz, supra, and thus the ruling was not error at the time of trial.