Opinion
12-P-1609
12-17-2014
COMMONWEALTH v. MATTHEW GREIGE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of possession of an infernal machine under G. L. c. 266, § 102A, as amended by St. 1970, c. 433 (§ 102A), contending that the evidence was insufficient to support the conviction and assigning error to the trial judge's instructions to the jury. We affirm the judgment, addressing the defendant's claims in turn.
This statute, and several related sections, were struck and replaced by St. 2010, c. 160, § 6, effective July 15, 2010, which was after the defendant's arrest but before his trial.
1. Sufficiency of the evidence. The defendant contends that the evidence at trial was insufficient to prove that he had the requisite mens rea to support the conviction, specifically that he knew the device in his possession could endanger life or cause unusual property damage by means of fire or explosion. We review the sufficiency of the Commonwealth's evidence under the familiar standard. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). "Knowledge may be established by circumstantial evidence 'if the evidence warrants a reasonable inference to that effect.'" Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41 (2010), quoting from Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 592 (2007). "Indeed, the Commonwealth may submit a case wholly on circumstantial evidence, and inferences drawn from that evidence 'need only be reasonable and possible; [they] need not be necessary or inescapable.'" Commonwealth v. Woods, 466 Mass. 707, 713 (2014), quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989).
Viewed in the light most favorable to the Commonwealth, see Latimore, supra, the evidence was sufficient to support the jury's verdict. The evidence shows that the defendant built a device that consisted of multiple components, contained an increased volume of the potassium nitrate-sugar mixture as compared to previous devices he had built, and could be activated remotely. The jury heard testimony that the defendant described the device as an "explosive" when showing it to his acquaintance and that he subsequently walked away, leaving the device unattended under a tree. In addition, a rational jury could infer from the testimony regarding previous devices he had built, especially in light of the increased sophistication of this device, that the defendant had specialized knowledge of explosive devices and knew of this device's destructive capacities. Finally, a jury could reasonably infer consciousness of guilt from the defendant's initial denial to the police that he had any knowledge of the device. See Woods, supra at 715-716 (false and inconsistent statements to police were permissible evidence of consciousness of guilt).
2. Jury instructions. The trial judge instructed the jury according to the statutory language of § 102A, and explained that, for the mens rea element of the statute, the Commonwealth was required to prove
"that the defendant knew that he possessed an infernal machine, that is that he knew the assembled object was capable of endangering life or doing unusual property damage by means of fire or explosive. If it was a conventional bomb or incendiary device with its obvious dangers, the Commonwealth is not required to prove that the defendant knew the object met the legal definition of an infernal device. It is not necessary that the Commonwealth prove that the defendant intended to endanger life or do unusual property damage with the device. It is only necessary that the Commonwealth prove that the device was capable of causing such harm by means of a fire or explosion and that the defendant knew that to be the case."
Defense counsel approved this version of the jury instructions; however, the defendant himself requested that the trial judge instruct the jury that in order to convict him it had to find the device was "put together to serve [the] particular purpose" of causing the necessary harm. In addition, in response to a question from the jury during deliberations requesting clarification of the definition of an incendiary device, the judge provided the definition from G. L. c. 266, § 101. Defense counsel requested the inclusion of examples of incendiary devices, which the judge refused to provide, but did not object to the response given.
The defendant argues that the trial judge's instructions relieved the Commonwealth of its burden of proof and deprived him of due process of law. Passing the question whether the defendant's claim is preserved, we discern no error.
The defendant asserts as a threshold matter that an essential element of § 102A was proof of unlawful destructive design. We disagree. First, the judge's instructions as provided were consistent with the plain meaning of the statutory language. In determining whether a device meets the statutory definition of an infernal machine, it would produce illogical results to look at the intent of the person who built the device, rather than at the capabilities of the device, and none of the cases interpreting § 102A have held that the jury are to do so. See, e.g., Commonwealth v. Lombardo, 23 Mass. App. Ct. 1006, 1007-1008 (1987). Although Commonwealth v. Bushway, 7 Mass. App. Ct. 715, 718 (1979), included language that could be construed to suggest that an unlawful purpose on the part of the person in possession of the device is an element of the statutory offense in a case (like Bushway) involving devices that "are of such a nature and construction that they may reasonably be put to benign use," Lombardo, supra, we subsequently clarified that "the Commonwealth did not have the burden of proving that purpose as a separate element of the offense." Id. at 1008. See Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 170-171 (2013) (discussing whether device was "capable of detonation"). The judge properly instructed the jury that, in order to convict the defendant under the statute, they must find that he knew he possessed a device that was capable of causing the requisite harm.
The defendant also claims that the judge erred by instructing the jury that knowledge was not required in cases involving a conventional bomb or incendiary device and by refusing to give examples of such devices in response to the jury question. We disagree. Although the instruction on the mens rea required for possession of a conventional bomb or incendiary device may have introduced confusion, the defendant has not demonstrated that he suffered any prejudice. When the instructions are taken as a whole, they would not have misled the jury to believe that knowledge was not required for conviction in this case, especially since the focus throughout trial was on the nature of the device in question as a constructed device fitting the description of an infernal machine, not as a conventional bomb or incendiary device.
Judgment affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelist are listed in order of seniority.
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Clerk Entered: December 17, 2014.