Opinion
No. 11–P–1560.
2013-03-12
COMMONWEALTH v. Mark ALEXANDER (and three companion cases.).
By the Court (GRAHAM, VUONO & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, brothers Mark and Chad Alexander were each convicted of firearm violations. Chad
now argues that the evidence was insufficient as to constructive possession, and Mark argues that his motion for severance should have been allowed, that the prosecutor, in his closing argument, improperly vouched for the credibility of a witness, and that the Commonwealth failed to prove that he did not possess a firearm license. We affirm both convictions.
We use the defendants' first names because they share their last name.
1. Background. There was evidence of the following facts. Two Springfield police officers, Eric Podgurski and Theodore Truoiolo, were responding to a report of “shots fired” when they saw the two defendants running together from the direction of 67 Kensington Street. A car was parked nearby, with a person sitting in the driver's seat, and both defendants “tr[ied] to get in the car.” Mark, who was carrying a blue bag, “threw it in the back seat,” and then “jumped in the back seat,” while Chad “jumped in the front seat.” Chad said to the driver, “Get me out of here,” perhaps two times. The car started to move, but the officers stopped it immediately. Both defendants began to get out of the car and “looked like they were going to run.” The officers stopped them: Mark immediately got back into the back seat of the car; Chad resisted briefly before the officers forcibly sat him next to his brother. Officer Podgurski retrieved the blue backpack from the front passenger seat, felt it, and then removed a loaded firearm with no serial number. The driver of the car testified that he was surprised when the defendants got into his car; he was stopped at a stop sign and he had never seen either of them before.
2. Chad Alexander. The only issue Chad raises is whether the Commonwealth has proven that he illegally possessed the firearm, either actually or constructively. The Commonwealth argues that the defendants were engaged in a joint venture to leave the scene with the gun in the blue backpack. To prove constructive possession, the Commonwealth must “show ‘knowledge coupled with the ability and intention to exercise dominion and control.’ “ Commonwealth v. Boria, 440 Mass. 416, 418 (2003), quoting from Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498 (1984). “Proof of possession and knowledge may be established by circumstantial evidence and the inferences that can be drawn therefrom.” Commonwealth v. Gouse, 461 Mass. 787, 795 (2012). Although presence alone is not sufficient, “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ “ Commonwealth v. Boria, 440 Mass. at 419, quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989).
A rational jury could conclude from the eyewitness testimony that the defendants were acting as joint venturers. See Commonwealth v.. McLaughlin, 431 Mass. 241, 246 (2000). There was evidence that Chad ran with his brother from a location where shots had been fired. His brother was carrying the bag with the gun; Chad then commandeered a car by jumping into the front passenger seat and ordering the driver, who was a stranger, to “[g]et [him] out of here.” Chad's attempt to run away from the car when the police stopped it, combined with his reluctance to reenter it, provide further support for the conclusion that he knew the gun was in the bag. Viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to permit the jury reasonably to infer that Chad, knowing the bag contained a firearm, was jointly engaged in leaving the scene with the gun. His motion for a required finding of not guilty was appropriately denied.
3. Mark Alexander. Mark argues that: (1) the trial judge abused his discretion when he denied Mark's request to sever his case from his brother's; (2) the prosecutor improperly vouched for the credibility of the Commonwealth's witnesses during closing argument; (3) the Commonwealth failed to prove all elements of the firearm possession charge; and (4) the trial judge erred in failing to provide an instruction on the Commonwealth's burden to prove that Mark lacked a firearm license. We address each claim in turn.
a. Severance. “When criminal charges against two or more individuals arise out of the same criminal conduct, it is presumed that those individuals will be tried together.” Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011) (citation omitted). Mass .R.Crim.P. 9(b), 378 Mass. 859 (1979). “[D]ecisions pertaining to severance and joinder are left to the sound discretion of the trial judge.” Commonwealth v. Diaz, 448 Mass. 286, 290 (2007).
Mark filed a pretrial motion to sever, representing therein that he intended to call witnesses who would testify that the person carrying the gun from the house was Chad, instead of Mark. He therefore argued that the defenses at trial would be antagonistic. In fact, neither defendant called any witnesses. The sole defense of each was not the guilt of the other; rather, the defenses were harmonious in that each defendant sought to discredit the testimony of the eyewitnesses through cross-examination, thereby providing a basis for arguing reasonable doubt. As a result, there was “no compelling prejudice and therefore no requirement of severance where the jury were warranted in finding [the defendant] guilty ... on the basis of ... eyewitness testimony.” Commonwealth v. Siny Van Tran, supra at 543 (citation omitted). See Commonwealth v. Vallejo, 455 Mass. 72, 86–88 (2009); Commonwealth v. Masonoff, 70 Mass.App.Ct. 162, 167–168 (2007). There was no abuse of discretion.
b. Improper vouching. The defendant next challenges the prosecutor's closing argument. Without objection, the prosecutor restated what had occurred at trial: that the witnesses took the “witness stand,” “took an oath,” and “subjected themselves to [the jury's] scrutiny during direct and cross-examination.” She did not “express [her] personal belief in the testimony or suggest that [she had] knowledge independent of the evidence at trial.” Commonwealth v. Sanders, 451 Mass. 290, 296–97 (2008). While a prosecutor may not “suggest that he has personal knowledge of, or vouch for, the credibility of a witness, ... the prosecutor may comment on and draw inferences from the evidence at trial ... or state logical reasons why a witness's testimony should be believed.” Id. at 297 (citations omitted). In addition, the trial judge instructed the jury, both at the beginning and end of trial, that closing remarks of counsel were not to be considered evidence. The jury is presumed to have followed the judge's instructions. Commonwealth v. Degro, 432 Mass. 319, 328 (2000). We see no error and certainly no substantial risk of a miscarriage of justice.
c. Proof of firearm license. Mark also argues that his conviction for unlawful possession of a firearm, G.L. c. 269, § 10( a ), should be overturned because the Commonwealth failed to prove he lacked a firearm license.
This argument is mistaken. “[T]he absence of a license [is] not an element of the crime under [G.L. c. 269,] § 10( a ), but ... the ‘holding of a valid license ... is an affirmative defense ... [T]he burden is on the defendant to come forward with evidence of the defense.’ “ Commonwealth v. Gouse, 461 Mass. at 802, quoting from Commonwealth v. Jones, 372 Mass. 403, 406 (1977). See G.L. c. 278, § 7.
Mark did not present any evidence that he had a license.
.General Laws c. 278, § 7, provides that: “A defendant in a criminal prosecution, relying for his justification upon a license, ... shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.”
We note that the defendant's brief was filed before the Supreme Judicial Court released its decision in Commonwealth v. Gouse, supra. That case also disposes of his argument that placing the burden of producing a license on the defendant violates the Second Amendment to the United States Constitution. “[R]equiring that [a defendant] produce some evidence of a license at trial—and recognizing a consequent presumption of unauthorized possession where he fails to do so—does not infringe on constitutionally protected conduct.” Ibid. The defendant's argument that the judge erred when he did not instruct the jury that the Commonwealth had the burden of proving that the defendant did not have a license is accordingly mistaken.
Judgments affirmed.