Commonwealth v. Brown , 479 Mass. 600 ( 2018 )

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SJC-12348
COMMONWEALTH vs. TYRIEK BROWN.
Worcester. January 5, 2018. - May 22, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
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
2
convicted of unlawful possession of a loaded firearm under G. L.
c. 269, § 10 (n).
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,
G. L. c. 269, § 10 (a), and unlawful possession of a loaded
firearm, G. L. c. 269, § 10 (n).1 The defendant appealed from
his convictions, and the Appeals Court vacated the conviction of
possession of a loaded firearm, after it concluded that G. L.
c. 269, § 10 (n), requires the Commonwealth to prove a
defendant's knowledge that the firearm was loaded. See
Commonwealth v. Brown, 91 Mass. App. Ct. 286, 287, 293 (2017).
Because the defendant "could not have discerned whether the gun
was loaded merely by looking at it," and the Commonwealth
presented no evidence that the defendant had knowledge that the
gun was loaded, the Appeals Court decided that there was "no
basis on which a rational juror could conclude beyond a
reasonable doubt that the defendant knew the gun was loaded."
Id. at 293. The Appeals Court affirmed the conviction of
possession of a firearm without a license, concluding that the
1 Before trial, a separate charge of possession of
ammunition without a firearms identification card was dismissed
at the request of the Commonwealth. The defendant was acquitted
of possession of a firearm with a defaced serial number, and
pleaded guilty to operation of a motor vehicle without a valid
license.
3
prosecutor's closing argument was not improper and that, even if
it was, it did not result in a substantial risk of a miscarriage
of justice. Id. at 294. We allowed both parties' applications
for further appellate review.
In its brief to this court, the Commonwealth contends that
G. L. c. 269, § 10 (n), is merely a sentencing enhancement for
the underlying offense of unlawful possession of a firearm,
G. L. c. 269, § 10 (a). In this view, an additional element of
knowledge that a firearm contains ammunition is not required to
prove a violation of G. L. c. 269, § 10 (n). All that is
required is knowledge of possession of a firearm. The defendant
challenges the sufficiency of the evidence to support a
conviction of possession of a loaded firearm and the Appeals
Court's determination that the prosecutor's closing argument did
not create a substantial risk of a miscarriage of justice.
We conclude that, to sustain a conviction under G. L.
c. 269, § 10 (n), the Commonwealth must prove that a defendant
knew the firearm he or she possessed was loaded. Because the
Commonwealth presented no evidence in this case that could allow
any rational trier of fact to find beyond a reasonable doubt
that the defendant knew the firearm was loaded, the conviction
of possession of a loaded firearm without a license cannot
stand. Further, because we conclude that the Commonwealth's
closing argument did not create a substantial risk of a
4
miscarriage of justice, we affirm the conviction of possession
of a firearm without a license, in violation of G. L. c. 269,
§ 10 (a).2
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.
2 We acknowledge the amicus brief submitted by Erickson
Resende.
5
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 a license to carry a firearm. The defendant also
said that he had gone to his former girl friend's house in
Worcester that morning to pick up some clothing. While he was
there, the girl friend's sister began arguing with an unknown
male and waving a firearm around. The defendant said that he
grabbed the gun from the woman and left the house. When he
returned to the vehicle, where Murphy and Cataquet were waiting,
he handed the gun to Cataquet and said that they would get rid
6
of the gun later. Upon their arrival at the barracks, Mahady
was called to another incident and left the defendant with Moran
without mentioning the conversation. When Moran again advised
the defendant of his Miranda rights, the defendant declined to
speak with officers. At trial, Mahady testified to the
substance of the conversation in the cruiser.
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
3 Cataquet's handwritten statement was introduced as a
declaration against penal interest. See Mass. G. Evid.
§ 804(b)(3) (2018). The written form and its discussion of
Miranda warnings were redacted before being given to the jury.
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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 The Appeals Court reversed the
conviction of possession of a loaded firearm without a license
and affirmed the conviction of possession of a firearm (in a
vehicle) without a license to carry. We allowed both parties'
applications for further appellate review.
2. Discussion. a. Mens rea requirement for G. L. c. 269,
§ 10 (n). General Laws c. 269, § 10 (a), defines the offense of
possession of a firearm, not in an individual's home or
business, without a license. The statute is violated, inter
alia, when an individual "knowingly has in his possession[,] or
knowingly has under his control in a vehicle[,] a firearm,
loaded or unloaded, . . . without either . . . being present in
or on his residence or place of business . . . or having in
effect a license to carry firearms . . . ." See Commonwealth v.
Sann Than, 442 Mass. 748, 752 (2004).
General Laws c. 269, § 10 (n), provides a sentencing
enhancement to the crime of unlicensed possession of a firearm
4 As mentioned, after trial on the firearms charges, the
defendant pleaded guilty to the charge of operating a motor
vehicle with a suspended license. He does not appeal from that
conviction, and it is not before us.
8
where an unlicensed firearm was loaded.5 It does not create a
stand-alone offense; in order to be convicted under G. L.
c. 269, § 10 (n), an individual must first have been convicted
under G. L. c. 269, § 10 (a) or (c). Commonwealth v. Loadholt,
456 Mass. 411, 423-424 (2010), S.C., 460 Mass. 723 (2011). See
Commonwealth v. Dancy, 90 Mass. App. Ct. 703, 705 (2016) ("We
interpret the plain language of this section to require a
finding that § 10[a] or § 10[c] has been violated before the
penalty enhancement provision in § 10[n] can apply").
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 (4) ammunition was contained in the
weapon or within the feeding device attached to the weapon. The
5 General Laws c. 269, § 10 (n), provides, in its entirety:
"Whoever violates paragraph (a) or paragraph (c), by
means of a loaded firearm, loaded sawed off shotgun or
loaded machine gun shall be further punished by
imprisonment in the house of correction for not more than
[two and one-half] years, which sentence shall begin from
and after the expiration of the sentence for the violation
of paragraph (a) or paragraph (c)."
9
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 G. L. c. 269, § 10 (n), arguing that the
Commonwealth was required to prove that he knew the firearm was
loaded. Relying on our prior case law that unlawful possession
of ammunition, G. L. c. 269, § 10 (h), is a lesser included
offense of unlawful possession of a loaded firearm, and requires
the Commonwealth to prove that a defendant knowingly possessed
ammunition, the Appeals Court concluded that it was bound by the
reasoning of Commonwealth v. Johnson, 461 Mass. 44, 52-53
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(2011), and adopted the defendant's argument. See Brown, 91
Mass. App. Ct. at 291-293; Johnson, supra at 53 (conviction of
possession of unlicensed firearm requires knowledge that object
possessed met definition of firearm, and possession of
ammunition without firearms identification card requires
knowledge that ammunition possessed met legal definition of
ammunition; because "[a]ll of the required elements of unlawful
possession of ammunition were encompassed by the elements of
unlawful possession of a loaded firearm, . . . the former crime
was a lesser included offense of the latter crime"). As the
evidence here showed that the defendant "could not have
discerned whether the gun was loaded merely by looking at it,"
and the Commonwealth presented no evidence that the defendant
knew it was loaded, the Appeals Court concluded that there was
"no basis on which a rational juror could conclude beyond a
reasonable doubt that the defendant knew the gun was loaded" and
set aside the verdict on that charge. See Brown, supra at 293.
The Commonwealth argues that G. L. c. 269, § 10 (n), is
merely a sentencing enhancement for which a separate element of
mens rea is not required beyond that necessary to prove the
underlying offense, G. L. c. 269, § 10 (a). See Commonwealth v.
Rodriguez, 415 Mass. 447, 452-453 (1993) (in convicting
defendant of trafficking instead of possession, Commonwealth
need prove only quantity of drugs, not defendant's knowledge of
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quantity); Commonwealth v. Alvarez, 413 Mass. 224, 228-230
(1992) (statute providing sentencing enhancement for drug-
dealing offense committed within 1,000 feet of school does not
violate due process). The Commonwealth suggests that G. L.
c. 269, § 10 (n), "is not totally void of any mens rea
requirement," Alvarez, supra at 229, in that the Commonwealth
must prove the intent of the underlying possessory offense.
Because some provisions of the firearms statute explicitly
include a mens rea requirement ("knowingly"), the Commonwealth
maintains, the omission of any explicit language requiring
knowledge in the words of G. L. c. 269, § 10 (n), must indicate
that the Legislature intentionally omitted a knowledge
requirement for enhanced sentencing under G. L. c. 269,
§ 10 (n).
"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
12
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 G. L. c. 269, § 10 (n), is not
dispositive. We previously have concluded that other provisions
of the firearms statute that do not explicitly contain a mens
rea requirement, among them G. L. c. 269, § 10 (c) and (h), and
previous versions of G. L. c. 269, § 10, implicitly require
knowledge. See Johnson, 461 Mass. at 53; Commonwealth v.
O'Connell, 432 Mass. 657, 663 (2000) (requiring knowledge of
possession, but not knowledge of barrel length, to be convicted
of possession of sawed-off shotgun with barrel less than
statutory minimum, G. L. c. 269, § 10 [c]); Commonwealth v.
Jackson, 369 Mass. 904, 916 (1976) (concluding that implicit
knowledge requirement existed in previous version of G. L.
c. 269, § 10 [a]); Commonwealth v. Boone, 356 Mass. 85, 87
(1969) (concluding that knowledge requirement was implicit in
former G. L. c. 269, § 10, predecessor to current G. L. c. 269,
13
§ 10 [a]). With respect to G. L. c. 269, § 10 (a), the
Legislature ultimately revised the statutory language to include
the element of "knowing" after our decision in Jackson, supra;it has not modified other provisions such as G. L. c. 269,
§ 10 (c) or (h).
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
6 In Commonwealth v. Porro, 458 Mass. 526, 532 (2010), we
noted that there are "rare circumstances where the purposes of
our lesser included offense jurisprudence are not served by a
strict application of the doctrine in a particular case." This
is not such a case. "In general, the cases where we have
diverged from a strict application of the . . . rule have
involved instances where, although each offense contains an
element that the other does not, the different element in the
lesser included offense is routinely undisputed and was not in
dispute in the particular case." Id. See Commonwealth v.
Walker, 426 Mass. 301, 304-305 (1997) (no dispute as to age of
victims in convicting defendant of lesser included offense of
indecent assault and battery on child under fourteen years of
age); Costarelli v. Commonwealth, 374 Mass. 677, 683-684 (1978)
(unauthorized use of motor vehicle is lesser included offense of
larceny of motor vehicle where "use on a public way" is not
14
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.
denied, 568 U.S. 1238 (2013); Commonwealth v. Jefferson, 461
Mass. 821, 828 n.7 (2012); Commonwealth v. Anderson, 461 Mass.
616, 632 n.17, cert. denied, 568 U.S. 946 (2012). Each element
of the charge of unlawful possession of ammunition, therefore,
must be an element of unlawful possession of a loaded firearm.
Because the Commonwealth is required to prove that a defendant
knowingly possesses ammunition that meets the legal definition
of ammunition, see Johnson, supra, we conclude that the
Commonwealth also must prove the element of knowing that the
firearm was loaded with ammunition in order to convict a
defendant of unlawful possession of a loaded firearm under G. L.
c. 269, § 10 (n).
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
often contested in practice). By contrast, knowledge whether
the firearm was loaded was and is disputed here.
15
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
16
Commonwealth defended the sufficiency of the evidence based only
on its argument that it need not prove that the defendant knew
that the gun was loaded. When pressed on the issue at oral
argument, the Commonwealth characterized any proof of such
knowledge as 'thin'").
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
17
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 defendant did not object to these remarks at trial,
we review for a substantial risk of a miscarriage of justice.
See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). "The
7 The testimony of the ballistician was that there had been
five bullets in the magazine, and one was fired during
ballistics testing, so four new bullets and one spent projectile
were introduced in evidence. There was no evidence how much
ammunition the magazine held, or how many bullets would have
been required in order for it to be "half full," but the
evidence did indicate that the magazine was not full.
18
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).
19
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 lie about having committed a crime in order to protect
him went too far.
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
20
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.
21
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.