Opinion
No. 15–P–970.
06-06-2016
COMMONWEALTH v. Jordan G. REED.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of a firearm without a license, possession of ammunition, possession of a loaded firearm, and resisting arrest. On appeal, he claims there was insufficient evidence to support his convictions of possession of a firearm without a license and of resisting arrest, the prosecutor's closing argument was improper, and that certain testimony was error that created a substantial risk of a miscarriage of justice. We affirm.
The conviction of possession of ammunition was dismissed as duplicative of the conviction of possession of a loaded firearm.
1. Sufficiency of the evidence. The defendant claims there was insufficient evidence that he constructively possessed the firearm in the glove compartment directly in front of where he was seated. We disagree. To prove constructive possession of a firearm, the Commonwealth must establish a 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).
Here, the Commonwealth established more than the defendant's mere presence. The police observed the car, in which the defendant was a passenger, drive onto a curb. As the officers pulled alongside the car and asked the driver what had happened, the defendant got out of the car and began walking away. When asked what was “going on,” the defendant turned toward Officer Connolly, put his hands up and said, “I can't go to jail, I can't go to jail.” When the defendant put his hands in his pockets, Connolly got closer to the defendant, grabbed him and asked him to take his hands out of his pockets. A struggle ensued and the defendant fled.
From the defendant's actions, statements, and flight, there existed a permissible inference that the defendant was involved in unlawful activity. It was also a reasonable inference that the defendant fled to avoid apprehension and to avoid incarceration for possession of the firearm, which was discovered in an area to which he had easy access. See Commonwealth v. Sadberry, 44 Mass.App.Ct. 934, 936 (1998). Also, after the defendant had been taken into custody, he was overheard telling the driver, that “[he] thought [he] had the joint on [him], and that's the initial reason why [he] ran.” From this statement, a reasonable jury could infer not only the defendant's knowledge that the firearm was inside the car, but also his stated intent to exercise dominion and control over it. Thus, from all the Commonwealth's evidence and the reasonable inferences therefrom, there was sufficient evidence that the defendant constructively possessed the firearm.
The defendant claims his use of the word “joint” was more likely a reference to a marijuana joint and not a firearm. Although it is beyond our appellate office to choose among reasonable inferences, we note that even though there was marijuana in the car, there were no marijuana joints recovered. Also, when placed in context, the defendant's choice of the definite article “the” joint, rather than “a” joint, implies a more particularized item previously referred to and not a less distinguishable marijuana joint. Finally, given that these events transpired nearly two years after possession of a small amount of marijuana was decriminalized in the Commonwealth, see G.L. c. 94C, § 32L, it is more reasonable to conclude that the defendant's concern about going to jail was based on his constructive possession of the firearm and not on a marijuana joint that never materialized. See Commonwealth v. Casale, supra (“inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable”).
The defendant also claims there was insufficient evidence to support his conviction of resisting arrest. We disagree. “An arrest occurs where there is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.’ “ Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting from Commonwealth v. Cook, 419 Mass. 192, 198 (1994). For purposes of G.L. c. 268, § 32B, “effecting an arrest is a process that begins when the above three criteria are present and ends when the person is fully detained by his submission to official force or placed in a secure location from which he can neither escape nor harm the police officer or others nearby.” Commonwealth v. Knight, 75 Mass.App.Ct. 735, 738–739 (2009).
Here, Officer Connolly testified that after he finally caught up with the defendant, he briefly struggled with the defendant as he tried to place him in handcuffs. This suffices as evidence of an intent to arrest. In fact, after making a general inquiry of the defendant, Connolly's interaction with him escalated with the defendant stating that he “can't go to jail” and putting his hands in his pockets, followed by an attempted patfrisk that resulted in a struggle and the defendant's flight. Connolly gave chase through multiple backyards and jumped over several fences. This too evinced an intent to arrest the defendant; a reasonable person in the defendant's shoes would have understood he was under arrest.
Furthermore, the evidence demonstrated that the defendant resisted arrest. The defendant's actions of struggling with the officer, running away, and jumping over multiple fences caused a “substantial risk” of injury to Connolly. See Commonwealth v. Montoya, 457 Mass. 102, 106 (2010) (defendant's flight over chain link fence and into shallow canal constituted substantial risk of injury to officers effecting arrest). See also Commonwealth v. Grandison, supra at 144–145 (defendant's stiffening his arms and momentarily breaking free of officer's grip created risk of causing bodily injury within meaning of statute). Finally, once Connolly caught up to the defendant on a fence in a lot, “[they] both got hung up on that fence. [Connolly] ended up getting a rip in [his] jeans,” they briefly struggled, and the defendant was eventually placed in handcuffs. The motion for a required finding of not guilty on this charge was properly denied.
2. The prosecutor's closing argument. For the first time on appeal, the defendant claims the prosecutor's closing argument stated, without record support, that the term “joint” was a reference to a firearm. We disagree. In the defendant's closing argument, counsel suggested that when the defendant told his codefendant that he ran because he “thought [he] had the joint on [him],” it was a reference to a marijuana joint, not a firearm. In response, the prosecutor suggested that the firearm at issue was small, light in weight, and that the defendant may have thought he still possessed the gun when he left the car.
This argument was a fair response to the defendant's argument. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989). Also, in context of the defendant walking away from the car, twice stating that he “can't go to jail,” struggling with the officer when the defendant would not remove his hands from his pockets, and his flight, it was a reasonable inference from the evidence that the “joint” was the firearm, which was the reason he fled. Indeed, inferences drawn from that evidence “need only be reasonable and possible,” not “necessary or inescapable.” Commonwealth v. Woods, 466 Mass. 707, 713 (2014), quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989). There was no error, and thus no risk that justice miscarried.
3. Officer Connolly's testimony. Also for the first time on appeal, the defendant claims Officer Connolly improperly opined on how the defendant's actions resulted in resisting arrest. The testimony at issue occurred during defense counsel's cross-examination of Connolly where counsel attempted to pinpoint the time of the arrest. Counsel asked whether the struggle with the defendant was the basis of the resisting charge. Connolly responded by noting that all of the defendant's conduct following him leaving the car was the basis for the resisting charge. When counsel asked if “running was the resisting,” Connolly stated, “Putting [him] in harm by having to chase [the defendant], jumping over fences, that's in the statute as resisting as well.”
While Officer Connolly did not misstate the law, what is contained in the statute should have been left for the judge's jury instructions. In any event, the judge later properly instructed the jury on the opinions of witnesses, the Commonwealth's burden of proof, and the elements of resisting arrest. To the extent there was any error in Connolly's testimony, the defendant has failed to demonstrate that it created a substantial risk of a miscarriage of justice.
Judgments affirmed.