Opinion
21-P-2
03-17-2022
COMMONWEALTH v. Paul F. COLLINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of the unlawful transfer of a firearm. See G. L. c. 269, § 10E (1). On appeal, the defendant argues that his conviction is legally inconsistent with the jury's contemporaneous acquittal of a second charge, of unlawful possession of a firearm, see G. L. c. 269, § 10 (a ), and that trial counsel was ineffective for failing to move for a required finding of not guilty based on the same inconsistent verdict argument. We affirm.
The jury also acquitted the defendant of unlawful possession of ammunition. See G. L. c. 269, § 10 (h ). A fourth indictment, charging conspiracy to violate G. L. c. 269, § 10E (1), see G. L. c. 274, § 7, was not tried to the jury but was placed on file without a change in plea.
1. Inconsistent verdicts. The defendant contends that the jury's verdicts were legally inconsistent, and that his conviction for the unlawful transfer of a firearm must therefore be vacated. The general rule in our courts is that inconsistent verdicts in criminal cases, "one of which is an acquittal, will not render the verdict of guilty erroneous" (citation omitted). Commonwealth v. Resende, 476 Mass. 141, 147 (2017). However, "where, removed from the factual context of the particular case, the government could not possibly have proved the elements of both crimes with respect to the defendant," the verdicts are legally inconsistent and may not stand. Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 584 (1999). The defendant's conviction for the unlawful transfer of a firearm is not legally inconsistent with his acquittal on the charge of unlawful possession of a firearm because, inter alia, one can unlawfully transfer a firearm while being present in one's residence or place of business. Simply put, the verdicts in this case do not "involve convictions of crimes that are mutually exclusive." Commonwealth v. Medeiros, 456 Mass. 52, 58 (2010).
The defendant's argument boils down to a contention that, because the jury acquitted him of the charge of unlawful possession of a firearm, it follows that there was insufficient evidence for the jury to convict on the charge of unlawful transfer of a firearm. Or, as the defendant puts it: "how can one transfer possession of something one does not possess?" However, this argument asserts a factual, not legal, inconsistency, and "[f]actual inconsistencies in verdicts ‘do not afford a ground for setting aside a conviction as long as the evidence is sufficient to support a conviction on the count on which the guilty verdict was reached’ " (citation omitted). Commonwealth v. Miller, 486 Mass. 78, 94 (2020).
Here, there is ample evidence in the record to support the defendant's conviction of unlawful transfer of a firearm. Framingham police officers recovered the firearm from a vehicle after arresting the vehicle's occupant. The serial number on the firearm indicated that it was registered not to the arrestee, but to the defendant. According to firearm transaction reports, the defendant was the last recorded owner of the firearm. Firearm licensing records showed the defendant had not held a firearm identification card since 1999 or 2000, when his "expired by rule of law."
The Commonwealth presented evidence that connected the defendant to the location where his firearm was recovered. Testimony at trial suggested that the defendant, an associate probation officer at the Framingham District Court, was having an inappropriate relationship with a woman who was frequently the subject of criminal proceedings at the court. After the police began investigating the defendant's connection to the firearm, the defendant confided in a coworker, telling him that the police had "arrested some kid with a gun down the street." The defendant said that he "gave [the woman] a gun" two weeks ago because "She needed protection." When the coworker expressed worry that the police would trace the firearm back to the defendant, the defendant replied that "She's not going to rat on me. They'll never know." About three weeks later, when the woman was arraigned on a motor vehicle charge, the defendant "stepped up to the sidebar and ... strongly advocat[ed] for her to be released."
Two members of the Framingham police department interviewed the defendant on June 13, 2016. That same day, the defendant made twenty-one phone calls to the woman's cell phone. Also extracted from the woman's cell phone were photographs of the defendant's firearm and a text message to an unidentified contact asking, "You want to trade for a hammer?" At trial, the defendant's coworker testified that, based on his training and experience, firearms are often called "hammer[s]" by those wishing "to avoid police detection." This evidence was more than sufficient, under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), for a rational jury to find that the defendant transferred his firearm to another individual without lawful excuse. See, e.g., Commonwealth v. Suriel, 91 Mass. App. Ct. 604, 607 n.5 (2017).
2. Ineffective assistance of counsel. The defendant also asserts that trial counsel provided ineffective assistance by failing to move for a required finding of not guilty on the charge of unlawful transfer of a firearm. Our review of this claim, raised for the first time in the defendant's direct appeal, is limited to what is contained in the trial record, and relief may be afforded only if "the factual basis of the claim appears indisputably on the trial record" (citation omitted). Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). For the reasons we have discussed, the evidence was sufficient to convict the defendant, accordingly, "trial counsel's failure to move for a required finding of not guilty did not amount to ineffective assistance of counsel." Commonwealth v. Costa, 407 Mass. 216, 224 n.9 (1990).
The defendant also argues that judge should have "dismissed the [unlawful transfer of a firearm] charge" sua sponte. The judge did not err. See Commonwealth v. Costa, 407 Mass. 216, 224 (1990).
Judgment affirmed.