Opinion
No. 11–P–1407.
2013-02-7
COMMONWEALTH v. Andre MATOS (and four companion cases ).
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Andre Matos and Robert Crichlow, appeal from convictions of various firearm and drug charges arising from their arrest on August 10, 2009. As the Commonwealth concedes, the conviction of the defendant Matos as an armed career criminal must be vacated, as he did not stand trial for, or plead guilty to, violation of G.L. c. 269, § 10G( a ). In addition, because we affirm the conviction of Matos on the charge of possession of a large capacity firearm, we vacate, as a lesser included offense, his conviction of possession of a firearm under G.L. c. 269, § 10( a ). We discern no merit in the defendants' other claims of error, and otherwise affirm the judgments. We address the defendants' claims in turn.
1. Large capacity firearm. The absence of any instruction on the definition of a “large capacity feeding device” from the judge's instructions of the charge under G.L. c. 269, § 10( m ), did not create a substantial risk of a miscarriage of justice. The question whether the firearm satisfied the definition of a large capacity firearm was not a live issue at trial, and the uncontroverted evidence made plain that the firearm met the requirements in clause (ii) of the definition of “large capacity weapon” set forth in G.L. c. 140, § 121.
The uncontroverted evidence likewise made plain that the firearm's magazine met the requirements of clause (i) of the definition of “large capacity feeding device” set forth in that statute. There accordingly was no view of the evidence that could have led the jury to conclude that the firearm was not a large capacity weapon, had they been instructed on the definition of a large capacity feeding device. See Commonwealth v. Greco, 76 Mass.App.Ct. 296, 301–302 (2010); Commonwealth v. Luciano, 79 Mass.App.Ct. 54, 60–61 (2011). 2. Intent to distribute. Viewed in the light most favorable to the Commonwealth, the evidence showed that Matos was driving, and Crichlow was a passenger in, a vehicle that contained four bags of marijuana
The Commonwealth correctly recognizes that the four enumerated clauses in § 121 disjunctively describe four different types of large capacity weapons. Matos's contrary suggestion that the first three enumerated clauses describe elements that must all be satisfied is simply incorrect. In addition to the grammatical structure of the sentence in which the clauses appear (which includes the disjunctive “or” between the third and fourth descriptive clauses), clauses (i) and (ii) are mutually exclusive, in that clause (i) specifies a fixed feeding device and clause (ii) specifies a detachable feeding device.
and a loaded large capacity firearm. Both defendants fled when the police attempted to stop the vehicle, and then fled on foot when the police succeeded in stopping the vehicle. See Commonwealth v. Martin, 48 Mass.App.Ct. 391, 392–393 (1999). Matos discarded the firearm while fleeing from the police. Crichlow was apprehended beside a trash dumpster, with his hands inside the dumpster; two bags of marijuana were in the dumpster. Expert testimony at trial supported a conclusion by the jury that the packaging of the marijuana was not consistent with personal use. See Commonwealth v. Evans, 436 Mass. 369, 376–377 (2002). Moreover, the presence of a large capacity firearm is consistent with the drug trade. See Commonwealth v. Cannon, 449 Mass. 462, 470 (2007). Taken together, and viewed in context in the light most favorable to the Commonwealth, the evidence sufficiently supported the jury's conclusion that the defendants possessed marijuana with intent to distribute it.
Crichlow carried two of the bags with him when he fled from the vehicle on foot. One bag was discovered in the cubbyhole of the driver's side door and another was discovered on the floor of the passenger side.
There is no merit to the defendant Matos's contention that the jury's verdict of guilty on the lesser included offense of possession rendered ambiguous its guilty verdict on the offense of possession with intent to distribute. See, e.g., United States v. Howard, 507 F.2d 559, 563 (8th Cir.1974). Though both convictions cannot stand (as the lesser offense is duplicative of the greater one), the jury's conclusion that the elements of the lesser offense were met is not ambiguous; it is instead entirely consistent with its conclusion that the same elements, plus the additional element of intent to distribute, satisfied the requirements for conviction on the offense of possession with intent to distribute.
3. School zone. Finally, there is no merit to the defendant Crichlow's argument that the evidence was insufficient to establish that the Brookings School was a public school at the time of the offense. At trial, John Vanasse, an assistant director of safety and security for the Springfield school department, testified that the school was a kindergarten through five elementary school within the Springfield school department. To the extent the argument rests on the contention that Vanasse was not qualified to testify to the status of the school, it goes to foundation and is waived, as no objection to his qualifications was made at trial.
His testimony accordingly was properly before the jury. To the extent the argument instead rests on the absence of any testimony by Vanasse that the school was accredited, it is inapposite; as the Commonwealth observes, the statute does not require proof that a public school is accredited. See Commonwealth v. Thomas, 71 Mass.App.Ct. 323, 325 (2008).
In any event, no particular expertise is required to allow a witness to testify regarding the status of a school. See Commonwealth v. Gonzalez, 33 Mass.App.Ct. 728, 730 n. 1 (1993); Commonwealth v. Laro, 68 Mass.App.Ct. 556, 559 (2007).
Conclusion. As to the indictment charging Matos with violating G.L. c. 269, §§ 10( a ) and 10G, the judgment is reversed, the verdict is set aside, and the indictment shall be dismissed. The remaining judgments as to Matos are affirmed, and the judgments against Crichlow are affirmed.
So ordered.