Opinion
16-P-263
04-26-2017
COMMONWEALTH v. Verenisa VALDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant, Verenisa Valdez, was convicted of unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of ammunition. See G. L. c. 269, § 10. On appeal, the defendant contends that she was tried improperly in the Central Division of the Boston Municipal Court rather than the Dorchester Division of the Boston Municipal Court, and that the failure to give a separate and distinct acts instruction was fatal to her conviction on the lesser included charge of unlawful possession of ammunition. We affirm.
Background. On March 14, 2014, Officer Brendan Bosse of the Boston police department was on patrol on Talbot Avenue in the Dorchester section of Boston, when he saw a car partially blocking traffic. After learning that the owner did not have a driver's license, and after seeing the car make a turn without signaling, he stopped the car. Officer Bosse learned that the defendant was the owner and confirmed that she was driving the car with a suspended license. Once he determined that neither of the two passengers had a driver's license, he asked all three to get out of the car so the car could be towed.
Officer Dario Fancelli arrived, and the two officers performed an inventory search of the car. During that search, Officer Fancelli found two bullets in the center console compartment. He then asked the front-seat passenger, who was standing by the side of the road, if he could inspect her handbag. She said yes and gave him the bag. Inside the bag, he found a gun.
The passenger was also tried and convicted of the firearms charges, but was acquitted of the ammunition charge. See Commonwealth vs. Gomez, Mass. App. Ct., No. 16-P-262, (April 26, 2017).
The defendant was taken into custody for operating with a suspended license, and subsequently, on May 7, 2014, she was arraigned in the Dorchester Division of the Boston Municipal Court on charges of unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of ammunition.
The defendant's fingerprint was on the gun.
Discussion. 1. Trial venue. The day after the defendant's arraignment, her case was transferred from the Dorchester Division of the Boston Municipal Court to the "gun session" in the Central Division of the Boston Municipal Court. Approximately seventeen months later, on the first day of trial, the defendant filed an objection to the transfer and moved to have the case returned to the Dorchester Division. Her motion was premised on the theory that the gun session was not properly authorized under the Boston Municipal Court's Standing Order 1-06, which regulates the creation of specialized sessions. The trial judge did not act on the motion, which we construe to be a denial.
In support of her claim that she was entitled to a trial in the Dorchester Division, the defendant now additionally relies upon a statutory provision that states, in relevant part, that a defendant "in any division of the district court" who has not waived her right to a jury trial "shall be provided a jury trial ... in the same division," if a jury session is available. G. L. c. 218, § 27A(c ), inserted by St. 1992, c. 379, § 141.
In the trial court, the defendant relied solely on her theory that the gun session was not properly authorized. She raises her statutory argument for the first time on appeal. Section 141 of St. 1992, c. 379, rewrote subsections (a )-(c ) of G. L. c. 218, § 27A ; we refer to the text in that 1992 amendment throughout this decision.
a. Statutory argument. The defendant argues that § 27A(c ) applies to her case because the words "district court," as used there, include the Boston Municipal Court, and that she was therefore entitled to be tried in the Dorchester Division. We disagree.
The definition of "district court" in G. L. c. 218 is a fluid one, changing with the circumstances in which the words are used. The words "district court ... refer to a division of the district court department" except where "the context refers exclusively to the Boston municipal court department or a juvenile court, or some other clearly contrary intent." G. L. c. 218, § 1, inserted by St. 2003, c. 45, § 1. Here, there are explicit and exclusive references to the Boston Municipal Court Department in the applicable portions of the statute, and no contrary intent is evident.
A prior version of this same text, which referred to the court as the "municipal court of the city of Boston," was inserted by St. 1978, c. 478, § 165.
The plain language of G. L. c. 218, § 27A, draws a sharp distinction between the District Court and the Boston Municipal Court. Section § 27A(a ) of G. L. c. 218 authorizes jury trials in the District Courts, but includes a wholly separate and distinct provision authorizing jury trials in the Boston Municipal Court for "cases commenced in said department and for the purpose of conducting jury trials of cases commenced in the divisions of the district court department in Suffolk County." G. L. c. 218, § 27A(a ). Section 27A(b ) provides that the Chief Justice for the District Court Department shall designate at least one division of the District Court in each county or adjoining county to hold jury trials. By contrast, as is relevant here, jury trials in Suffolk County may be held in the Boston Municipal Court Department, in any division of the District Court Department within Suffolk County, and in any of the judicial districts which adjoin Suffolk County designated by that department's Chief Justice. G. L. c. 218, § 27A(b ). The Boston Municipal Court Department is treated as a single entity in which jury trials are authorized throughout.
General Laws c. 218, § 27A(c ), upon which the defendant relies, refers exclusively to the divisions of the District Court, and does not mention the Boston Municipal Court. Rather, subsection (c ) addresses, among other things, the assignment of jury cases in the courts of the District Court Department, and provides a mechanism for assigning cases to be tried by jury, since, by virtue of G. L. c. 218, § 27A(b ), not all divisions of the District Court necessarily have jury sessions.
"We interpret statutory language to give ‘effect consistent with its plain meaning and in light of the aim of the Legislature’ unless to do so would achieve an ‘absurd’ or ‘illogical’ result." Commonwealth v. Scott, 464 Mass. 355, 358 (2013), quoting from Sullivan v. Brookline, 435 Mass. 353, 360 (2001). In the context of § 27A, the Legislature inserted language regarding the venue of jury trials that applies exclusively to the Boston Municipal Court. G. L. c. 218, § 1. Jury sessions are authorized throughout the Boston Municipal Court and it therefore would make no sense to refer to or include the Boston Municipal Court in § 27A(c ). We construe the omission of the Boston Municipal Court from § 27A(c ) to be deliberate. The words "district court" within § 27A(c ) do not encompass the Boston Municipal Court and, therefore, the defendant's statutory argument is without basis.
The defendant also relies on art. 13 of the Massachusetts Declaration of Rights, which states that "[i]n criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen." Given the proximity of the Dorchester and Central Divisions, the invocation of this constitutional claim is unavailing. See Commonwealth v. Wright, 88 Mass. App. Ct. 82, 88 (2015).
b. Standing order. The defendant also claims that, at the time of her trial, the gun session was not properly authorized under the terms of Boston Municipal Court Standing Order 1-06. This standing order regulates the creation of specialized sessions, and states that such sessions shall be authorized for a limited time period unless specifically authorized for some other period, or for an indefinite period.
We reject the defendant's argument for two reasons. First, ten days after the defendant's conviction, the Chief Justice of the Boston Municipal Court issued a memorandum clarifying "existing policy" regarding the transfer of firearms cases to the gun session and directed that, subject to limited exceptions, such cases "shall continue to be transferred" to that session. Based on that language, we are satisfied that the gun session, at all relevant times, operated with the approval of that department's chief justice, who is empowered to effect such transfers to promote the efficient distribution of cases and workload. See G. L. c. 211B, §§ 1 & 10(xvii). Second, the issue before us is venue, not jurisdiction, see Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 336 (1999), and the defendant has failed to articulate any prejudice whatsoever. See, e.g., Commonwealth v. Johnson, 470 Mass. 300, 316-317 (2014) (on appeal, improper venue argument reviewed for prejudice). The jurors were drawn from the same pool, and the record contains not even a slight suggestion that the transfer caused the defendant any difficulty obtaining evidence, summoning witnesses, or otherwise receiving a full and fair jury trial. We therefore reject the claim of reversible error based on Standing Order 1-06.
2. Double jeopardy. Bullets were found both in the gun and in the console of the car. The defendant could not be convicted of both unlawful possession of a loaded firearm and unlawful possession of ammunition based on the bullets in the gun. See Commonwealth v. Johnson, 461 Mass. 44, 53-54 (2011). The defendant agrees that she could have been properly convicted of the ammunition charge based on the bullets in the console, compare ibid., but argues that the instructions were insufficient to direct the jury to distinguish between the bullets in the console and the bullets in the gun. See id. at 53. There was no objection at trial, and hence we review for a substantial risk of a miscarriage of justice. Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).
In assessing whether there was a substantial risk of a miscarriage of justice, "[t]he appropriate inquiry is whether there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015). The complaint did not specify the factual basis of the charges, and the judge did not instruct the jury that a conviction on the ammunition charge must be based on facts, i.e., the bullets in the console, separate and distinct from the evidence of a loaded gun. These omissions make this case unnecessarily close. However, the prosecutor made separate arguments to the jury regarding actual or joint possession of the loaded gun, and possession of the ammunition. With respect to the ammunition, the prosecutor specifically requested a guilty verdict for "possessing ammunition that was within that vehicle." Thus, the jury did receive guidance as to which evidence should be considered with respect to the ammunition charge. See Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 695–696 (2009). In this respect, the present case is distinguishable from Kelly, supra at 702, where "the prosecutor did not specifically point out which alleged acts corresponded to which charges." Accordingly, we are persuaded that there is not any significant possibility that the jury convicted the defendant of possession of ammunition in the gun, and therefore there is no substantial risk of a miscarriage of justice.
Judgments affirmed.