Opinion
12-P-660
03-30-2015
COMMONWEALTH v. RICHARD DICKIE.
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 trial by jury, the defendant appeals from his convictions of illegal sale of a large capacity weapon in violation of G. L. c. 269, § 10F(a), and possession of a large capacity weapon in violation of G. L. c. 269, § 10(m). On appeal, the defendant contends (1) that the burden on him as a joint venturer to plead the defense of the coventurer's license violates due process; (2) that the judge erred in admitting testimony of the defendant's alleged coventurer's out-of-court statement; (3) that the judge improperly instructed the jury; and (4) that the judge mistakenly believed he lacked the authority to reduce the verdict pursuant to Mass.R.Crim.P. 25(b)(2), as amended 420 Mass. 1502 (1995). Turning to each claim, we affirm.
1. Defense of license. The Commonwealth proceeded at trial, and the defendant was subsequently convicted, on a theory of joint venture. At no time after the defendant was indicted or during the proceedings did the defendant raise the defense of a valid firearm license. Rather, the defendant now asserts that it would be a violation of due process to require a defendant charged on a joint venture theory to plead a defense such as the license status of the armed joint venturer where it is not reasonable to presume he would have knowledge thereof. The defendant's argument is fated by the Supreme Judicial Court holding in Commonwealth v. Humphries, 465 Mass. 762 (2013), which held: "a defendant charged with joint venture possession of a firearm bears . . . the burden of raising the defense of license." Id. at 771. See Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518 (2004). There the Supreme Judicial Court made plain that "[f]ailure to provide notice . . . renders the claim of license unavailable as a defense." Humphries, supra at 771 (quotation marks and citation omitted).
Citing support from a case out of the United States District Court for the District of Massachusetts, Powell v. Tompkins, 926 F. Supp. 2d 367, 375 (D. Mass. 2013), the defendant seeks to have Humphries overturned -- an outcome clearly outside of our authority. "[F]rom the very earliest decisions we issued and continuing to this day, we have uniformly and unequivocally held we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
Conversely, while mindful of decisions of lower Federal courts -- such as Powell, supra, -- we are not bound by those cases. Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 477 n.11 (2005).
The defendant raises a similar argument relative to his conviction of the illegal sale of a large capacity firearm as a joint venturer. He asserts that because the statute criminalizes only sales that do not meet one of the several exceptions contained in G. L. c. 140, §§ 128 & 128A, the Commonwealth bears the burden to prove the sale is illegal, and to meet that burden the Commonwealth must establish that the sale failed to meet each of the enumerated exceptions. We disagree.
Much like the statute criminalizing the unlicensed possession of a firearm, G. L. c. 269, § 10F, makes all large capacity weapons sales illegal unless one of the statutory exceptions is met. Compare G. L. c. 269, § 10F, with G. L. c. 269, § 10(m). Under G. L. c. 269, § 10(m), the Commonwealth need not prove the absence of a valid license unless the defendant raises the defense of license. See Humphries, supra at 769 ("a defendant charged with joint venture possession of a firearm bears only the burden of raising the defense of license"). Logically, the same holds true for prosecutions under G. L. c. 269, § 10F. The Commonwealth need not prove that none of the exceptions enumerated in c. 140, §§ 128 & 128A, applies unless and until the defendant raises one of the exceptions in defense of the charges. See, e.g., Commonwealth v. Jones, 372 Mass. 403, 406 (1977); Commonwealth v. Cabral, 443 Mass. 171, 181 (2005); Humphries, supra. Furthermore, the obligation to plead the statutory exception rests with the defendant, whether he is charged as a principal or as a joint venturer. Humphries, supra at 771. The defendant failed to raise any such defenses at trial. Accordingly, they are unavailable to him now. See Mass.R.Crim.P. 14(b)(3); Humphries, supra.
2. Coventurer's statement. The defendant asserts that the judge erred in admitting the confidential informant's testimony. When the confidential informant asked who he should pay for the firearm, the defendant's coventurer (his brother) replied: "[I]t's going to my brother Richie [the defendant] because he put the money up." We review for abuse of discretion and conclude none exists. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 587 (2013) ("[W]e review the judge's admission of the purported hearsay evidence for abuse of discretion").
A declarant's out-of-court statement may be admitted as a statement in furtherance of the joint venture when the Commonwealth establishes by other evidence "an adequate probability of the existence of a common venture, including participation by the given defendant." Commonwealth v. Braley, 449 Mass. 316, 320 (2007) (citation omitted). Mass. G. Evid. § 801(d)(2)(E) (2014). "An adequate probability exists when the Commonwealth satisfies a judge by a preponderance of the evidence that a criminal joint venture took place between the declarant and the defendant." Braley, supra (citation and internal quotation marks omitted). "In determining whether an adequate probability exists, the evidence is to be viewed in its light most favorable to the Commonwealth, and may be proved by circumstantial evidence." Ibid. (citation and internal quotation marks omitted).
Contrary to the defendant's contention, the evidence here established the defendant's participation in a joint venture. The confidential informant testified that the sale took place in a small kitchen. The defendant was present for the entirety of the exchange, he accepted the cash payment and counted the money before the informant left with the weapon. See, e.g., Commonwealth v. Leach, 73 Mass. App. Ct. 758, 764 (2009).
We need not, and do not, express any opinion as to whether the statement was also admissible as the defendant's admission by silence.
3. Jury instructions. The defendant contends that because G. L. c. 269, § 10(a)(1), contains a general exemption for possession of a firearm within one's residence, the judge erred in failing to instruct that the Commonwealth must establish the coventurer possessed the weapon outside his residence. This argument also lacks footing. While G. L. c. 269, § 10(a)(1), contains a general exemption for possession of a firearm within one's residence, § 10(m) prohibits possession of a large capacity firearm (the weapon here) "[n]otwithstanding the provisions of paragraph (a)." G. L. c. 269, § 10(m).
4. Motion under Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The defendant argues that when the judge stated at sentencing that "he had no option," the judge misunderstood his authority to reduce the verdict under rule 25(b)(2). See Commonwealth v. Almeida, 452 Mass. 601, 613 (2008) ([R]ule 25[b][2] "authorizes a trial judge to reduce a verdict despite the presence of sufficient evidence to support the jury verdict"). The defendant confuses the record. The judge denied the defendant's rule 25(b)(2) motion at the sentencing hearing, however, when the judge stated that he "had no option," he was referring to his imposition of a mandatory minimum term of incarceration and not to his denial of the defendant's motion to reduce the verdict. Moreover, that the defendant's coventurer brother obtained a less severe sentence for related offenses in Federal court (the rationale behind the defendant's motion) provides no basis, by itself, for reducing the defendant's State convictions. Commonwealth v. Rolon, 438 Mass. 808, 825 (2003). Nor are the defendant's personal circumstances, absent some other evidence pointing "to a lesser degree of guilt," adequate justifications for reducing the jury's verdict. Ibid. Mindful that rule 25(b) relief should be used "sparingly," and that the judge must consider the weight of the evidence, we find no abuse of discretion in the judge's denial of the defendant's motion to reduce the jury's guilty verdicts. Almeida, supra.
Judgments affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 30, 2015.