Opinion
No. 11–P–118.
2012-07-10
COMMONWEALTH v. Antonio COX.
By the Court (COHEN, GREEN & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a Superior Court jury trial, the defendant was convicted of one count of armed kidnapping, seven counts of armed robbery while masked, one count of attempted armed robbery while masked, six counts of possession of a sawed off shotgun, and one count of armed carjacking. On appeal, he contends that (1) an inadvertent mistake in written instructions supplied to the jury mandates a new trial; (2) his multiple convictions of possession of a sawed-off shotgun must be reversed because a ballistics certificate was introduced in evidence without affording him the opportunity to cross-examine the person who performed the tests; (3) the evidence was insufficient to sustain three of his convictions for possession of a sawed-off shotgun; and (4) the evidence was insufficient to support the carjacking conviction. We reverse the judgments as to possession of a sawed-off shotgun and set aside those verdicts. In all other respects, we affirm.
1. Jury instructions. When the judge was delivering the charge, defense counsel approached the bench and informed the judge that the written instructions contained an erroneous reference to the crime of rape of a child. The judge stated, “All right. I will tell them that I have obviously taken that from another case, and that has absolutely nothing to do with it.” The judge proceeded to alert the jury to the existence of an error in the written instructions, and, when he arrived at the erroneous portion, instructed them as follows: “This next sentence is where there is an error. Obviously I have taken this from another case, and it says here, ‘The crime of rape of a child,’ which has absolutely nothing to do with this case. So you should cross that out, if you have your pens with you, and you should totally disregard that. It relates to an entirely different case, not involving this defendant, and it should play no part, whatsoever, in your determinations here.” After providing this correction, the judge called both parties to sidebar and asked if there were “[a]ny objections or requests ... if you want to reiterate anything at this point, now is the time to do that.” Defense counsel responded, “No. Thank you, Judge.” The defendant now claims that the error in the written instructions was so inflammatory that it deprived him of a fair trial.
Although the parties disagree as to the applicable standard of review, it makes no difference whether we review for prejudicial error or substantial risk of a miscarriage of justice; under any standard, the defendant is not entitled to appellate relief. The judge immediately and emphatically corrected the mistake by explaining that it was an artifact unrelated to this case or this defendant, there was no evidence of sexual abuse or child abuse adduced at trial, and defense counsel, himself, was satisfied with the curative measures taken by the judge. We are confident that the jury could not have been misled or influenced by the inadvertent reference. See Commonwealth v. Grant, 418 Mass. 76, 85 (1994).
2. Admission of ballistics certificate. Our independent review confirms that the admission of the ballistics certificate for the sawed-off shotgun violated the defendant's right of confrontation and that this error was not harmless beyond a reasonable doubt. See Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010); Commonwealth v. Loadholt, 456 Mass. 411, 432 (2010). Accordingly, the six judgments of conviction of possession of a sawed-off shotgun (Counts 11, 12, 13, 14, 15, and 17) must be reversed, and those verdicts set aside.
The defendant did not object below; however, his trial occurred in the interval between Commonwealth v. Verde, 444 Mass. 279 (2005), and Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), and so is governed by the “harmless beyond a reasonable doubt” standard.
There is no merit to the defendant's argument that he cannot be retried on Counts 15 and 17, because those counts were worded identically with Count 16, which resulted in acquittal. The verdict slips specified each incident in which the defendant was alleged to have possessed the sawed-off shotgun. Thus, there is no uncertainty as to the factual basis for the various charges and no risk that the defendant will be retried on grounds that resulted in acquittal. Contrast Commonwealth v. Hrycenko, 417 Mass. 309, 315–318 (1994).
3. Sufficiency—possession of a sawed-off shotgun. Because the defendant's coventurer was identified as the individual who carried the sawed-off shotgun during three of the robberies, the defendant claims that there was insufficient evidence to convict him of possessing the shotgun on those occasions. However, even though the shotgun was not in the defendant's hands in those instances, the evidence and reasonable inferences therefrom sufficed to prove either that he actually or constructively possessed it. See Commonwealth v. Daley, 423 Mass. 747, 752 (1996). The Commonwealth established that the defendant and his coventurer together committed four robberies and one attempted robbery while armed with a sawed-off shotgun, the defendant held the shotgun during one of the robberies, and the shotgun ultimately was discovered under the driver's seat of the car that the defendant was operating. From these facts, the jury could infer that, throughout the crime spree, the defendant had knowledge of the shotgun, as well as the ability and intention to exercise dominion and control over it, even though he did not physically hold it during three of the robberies. The Commonwealth was not required to prove that his possession was exclusive. See Commonwealth v. Gizicki, 358 Mass. 291, 297–298 (1970); Commonwealth v. Duncan, 71 Mass.App.Ct. 150, 153–154 (2008).
The Commonwealth argues, and the defendant acknowledges, that the judge could have instructed the jury that he could be found guilty of possession of a firearm on a joint venture theory without proof of his actual or constructive possession. See Commonwealth v. Brown, 50 Mass.App.Ct. 253, 256 (2000). Nevertheless, because the jury were charged only on a theory of individual liability, we analyze the case under the instructions as given. See Commonwealth v. Thomas, 400 Mass. 676, 681–682 (1987).
4. Sufficiency—carjacking. There is no merit to the defendant's argument that the Commonwealth failed to prove his intent to steal the vehicle. “One who takes property without the authority of the owner and so uses or disposes of it as to show indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently.” Commonwealth v. Souza, 428 Mass. 478, 490 (1998), quoting from Commonwealth v. Salerno, 356 Mass. 642, 648 (1970). Here, the defendant and his coventurers followed the victim, trapped his vehicle at a stop light, pointed a gun at him, climbed into his car, threatened to kill him, and forced him into the trunk of his car. They crashed the car into another vehicle and robbed those passengers at gunpoint. Only then did they drive the damaged vehicle to another area, and release the victim. On these facts, the jury reasonably could infer that, at the time he stole the car, the defendant intended to permanently deprive the victim of his vehicle.
Conclusion. The judgments with respect to the charges of possession of a sawed-off shotgun (Counts 11, 12, 13, 14, 15, and 17) are reversed, and the verdicts set aside. The remaining judgments are affirmed.
So ordered.