Opinion
10-P-1532
02-23-2012
COMMONWEALTH v. HUSSAIN POWELL.
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 Commonwealth appeals from a Superior Court judge's postverdict allowance of the defendant's motion for required findings of not guilty on indictments charging (1) aggravated assault and battery by means of a dangerous weapon, (2) unlawful possession of a firearm, (3) unlawful possession of ammunition, and (4) unlawfully carrying a loaded firearm. We affirm the order as to count three, and reverse in all other respects.
Background. The Commonwealth's case was based upon circumstantial evidence, which we summarize in the light most favorable to the Commonwealth.
On September 8, 2008, the defendant and Kalil Jones were involved in a fight on the way home from school. Two days later, on September 10, Jones was shot near the Ashmont MBTA station while waiting for the school bus. The Commonwealth presented no witness who saw the defendant shoot the victim. The central issue for the jury, therefore, was identification of the defendant as the shooter. One witness saw the defendant waiting for the bus before the shooting began. Another witness saw a young black male carrying a black handgun run from the scene and enter an older model, two-toned Oldsmobile or Cadillac, which then sped off. The witness described the person carrying the gun as being tall, approximately seventeen years old, very thin, and wearing a white polo shirt. The defendant matches this description, and was wearing a white shirt on the day of the shooting.
The defendant and Jones attended West Roxbury High School.
A third witness saw 'a couple of kids' get in an older model, two-toned car after the shooting, which then sped off. While he could not see their faces, the witness described them as being light-skinned or having a brown complexion. He stated that one was tall while the other two were short. Tajah Brown testified that he parked his older model, two-toned Cadillac near the scene of the shooting immediately before shots were fired. There was evidence that the defendant and another individual were in the car, and that this other individual is shorter and more muscular than the defendant. Brown testified that after shots were fired, the defendant told him to 'Go, go.'
Karina Rosario, the defendant's then-girlfriend, testified that the defendant told her on the morning of September 10, 2008, to stay away from Ashmont station. Rosario was in constant communication with the defendant until 6:00 A. M. that morning, and did not communicate with him again until 7:00 A. M. The defendant was not in school on September 10, 2008, and never returned to West Roxbury High School.
The shooting occurred at 6:37 A. M. on September 10.
--------
Discussion. The judge allowed the defendant's motion for required findings of not guilty after the jury returned guilty verdicts on all counts. In reviewing her ruling, we analyze the evidence in the light most favorable to the Commonwealth to determine whether it presented sufficient evidence to permit the jury to infer the existence of the essential elements of the crimes charged. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). 'The relevant question' in this context 'is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.' Commonwealth v. Brown, 401 Mass. 745, 747 (1988).
While there was no direct evidence that the defendant was the shooter, 'direct evidence is not necessary to convict.' Commonwealth v. Arroyo, 442 Mass. 135, 140 (2004). Viewed in the light most favorable to the Commonwealth, there was evidence that the defendant fought with Jones two days before Jones was shot, told his girlfriend to stay away from the station where the shooting would occur, was at the bus stop before the shooting began, matched the description of the person seen running from the scene with a gun in his hand, and that the only break in the defendant's constant communication with his girlfriend occurred at the time of the shooting. From this evidence, the jury could reasonably infer that the defendant had a motive to attack Jones, an intention to do something at Ashmont station for which he did not want his girlfriend around, and the opportunity to shoot Jones. See ibid. The jury could infer from Brown's testimony (that he parked his car near the scene of the shooting and that the defendant told him to 'Go, go' after the shooting) that the defendant had a means to flee the scene, see ibid., and the defendant's statement could reasonably be understood to indicate consciousness of guilt. See Commonwealth v. Epsom, 399 Mass. 254, 258-259 (1987) ('Evidence of flight is admissible to prove consciousness of guilt, . . . and consciousness of guilt, together with other evidence, may establish guilt').
'Of course, it is possible that someone else may have' shot Jones. However, 'the evidence was enough so that the jury were not left to speculate as to the defendant's guilt.' Commownwealth v. Doucette, 408 Mass. 454, 462 (1990). '[A]ll of the evidence, including the permissible inferences drawn therefrom, taken together, support[ed] a finding' of guilt beyond a reasonable doubt; therefore, the defendant's motion for a required finding of not guilty on the charge of aggravated assault and battery by means of a dangerous weapon should have been denied. Arroyo, supra.
The defendant's motion for a required finding of not guilty on the charge of possession of a firearm should have been denied in light of a witness's testimony that a person matching the defendant's description fled the scene of the shooting with a 'handgun.' See Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977); Commonwealth v. Naylor, 73 Mass. App. Ct. 518, 525 (2009). For all of the above reasons, the defendant's motion with respect to the charges of unlawful possession of ammunition and a loaded firearm should also have been denied. However, because the only ammunition was that contained in the loaded firearm, the defendant cannot be convicted of both crimes. In that circumstance, the unlawful possession of ammunition is a lesser included offense of unlawful possession of a loaded firearm. Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011).
Accordingly, the order allowing the motion for required findings of not guilty is affirmed as to count three, and the indictment on that count is to be dismissed. As to counts one, two, and four, the order is vacated and a new order shall enter denying the motion as to those counts. The verdicts on counts one, two, and four are reinstated, and the case is remanded for sentencing.
So ordered.
By the Court (Grasso, Cohen & Carhart, JJ.),