Opinion
14-P-1757
04-11-2016
COMMONWEALTH v. BRIAN A. TOWNLEY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in Superior Court, the defendant was convicted on six indictments charging him with unlawful possession of a firearm, G. L. c. 269, § 10(h), and four indictments charging him with unlawful possession of a large capacity weapon or ammunition feeding device, G. L. c. 269, § 10(m). On appeal, the defendant claims for the first time that the judge committed reversible error by permitting a witness to testify that he saw the defendant in possession of a firearm on four or five occasions prior to the date of the offense. We affirm.
The judge dismissed seven indictments charging the defendant with unlawful possession of a firearm and ammunition by a person previously convicted of a violent crime or serious drug offense.
Background. On February 23, 2013, Wareham police officers executed a search warrant at the home of the defendant's parents, where the defendant also lived. The defendant's cousin and her young child were living in the home at that time as well. The warrant was based on information provided by Daniel Merkel, who was the father of the cousin's child and had been to the house on numerous occasions to visit.
Upon arriving at the house, the police spoke with the defendant and informed him that they had a search warrant for firearms. The defendant admitted that he had some black powder guns in his bedroom and that other guns were stored in a gun safe, which also was in his bedroom. The defendant told the officers that the gun safe was locked and the key was on a lanyard on the bedroom floor. The defendant then identified the key to the safe. When the safe was opened, the police found three rifles, two semiautomatic pistols, one revolver, and four magazines or feeding devices, some of which were loaded. The safe also contained a large quantity of ammunition (over 1,000 rounds) and the defendant's birth certificate. During the search of the bedroom, the police found a BB gun, a starter pistol loaded with blanks, and a black powder revolver. There was ammunition in the pillow case on the defendant's bed, which fit one of the magazines known as a "banana clip" found in the safe.
These items are not firearms.
The theory of the defense was that the firearms and ammunition upon which the charges were based belonged to the defendant's mother, who testified and claimed that she had purchased the gun safe, the firearms, and the ammunition. She further testified that the defendant previously had been charged with discharging a firearm and that although the charge had been dismissed she, together with the defendant's father, hid the key to the gun safe and did not permit the defendant to have access to the key or to the safe thereafter.
The defendant's mother had a permit issued by the Bureau of Alcohol, Tobacco, and Firearms to collect curios and relics. Both the mother and the father, who also testified for the defense, had FID cards, which were expired.
Prior bad act evidence. Merkel was called as a witness by the Commonwealth at trial. He stated that, between 2009 and 2012, he went to the defendant's home on a weekly basis to pick up his child, who was born in June, 2009. He testified that he observed firearms in the house "a number of times," including in the defendant's bedroom. On at least one occasion, he saw the defendant fire a gun in the garage. Merkel acknowledged that he was not familiar with firearms and he could not identify the types of guns he saw in the home, although he believed the firearm discharged in the garage was a semiautomatic weapon. He saw the defendant fire a gun on another occasion but he could not say whether the firearm was "an actual gun" or a BB gun.
Discussion. The defendant argues that, in a case where the only disputed issue is whether he possessed the firearms stored in the safe, the judge erred in admitting Merkel's testimony. Even if the testimony was probative, the defendant claims, it was unduly prejudicial.
As an initial matter, contrary to the defendant's assertion (and what appears to be the Commonwealth's concession), the admissibility of the prior bad act evidence was not raised at trial. Defense counsel did not file a motion in limine to exclude Merkel's testimony even though he had advance notice of what Merkel was expected to say. In addition, he did not object when the prosecutor outlined Merkel's anticipated testimony in her opening remarks. Although defense counsel objected at various points during Merkel's testimony, none of these objections challenged the admissibility of the prior bad act testimony. Accordingly, we conclude that the alleged error was not preserved. We need not dwell on the standard of review, however, because we conclude there was no error.
Defense counsel objected four times during the line of questions regarding Merkel's observations of firearms inside the home. The first two of these objections were overruled before counsel stated grounds. Of the latter two objections, one was to form and the other was related to the exhaustion of Merkel's memory.
The rule governing prior bad act evidence is well settled. "[T]he prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose." Commonwealth v. Corliss, 470 Mass. 443, 450 (2015), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b) (2015). For example, such evidence may be admissible to show identity, knowledge, intent, motive, opportunity, a common scheme, a pattern of operation, or the absence of mistake or accident. Ibid. "Such evidence may also be admissible if it 'rebut[s] the defendant's contentions' made in the course of trial." Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting from Commonwealth v. Magraw, 426 Mass. 589, 595 (1998).
The evidence in question was properly admitted for two reasons. First, it was relevant and probative of the defendant's knowledge, intent, and state of mind. Second, it was admissible to rebut the defense that the firearms were owned by the defendant's mother. Furthermore, we are not persuaded by the defendant's argument that Merkel's observations of him with a firearm were too remote to be relevant. As the Commonwealth notes in its brief, Merkel observed the defendant firing a weapon within nine months of the execution of the search warrant. See Commonwealth v. Corliss, supra at 449-451 (no error where witness observed defendant with gun more than one year prior to shooting).
Judgments affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 11, 2016.