Opinion
No. 22-P-423
08-21-2024
COMMONWEALTH v. Paul FRANCIS.
Ruth O’Meara-Costello, Boston, for the defendant. Andrew Shepard Doherty, Assistant District Attorney, for the Commonwealth.
Firearms. License. Constitutional Law, Reasonable suspicion, Probable cause, Harmless error. Probable Cause. Search and Seizure, Reasonable suspicion, Probable cause. Evidence, Constructive possession, Joint venturer, Videotape. Practice, Criminal, Motion to suppress, Required finding, Instructions to jury, Harmless error. Error, Harmless.
Indictments found and returned in the Superior Court Department on March 24, 2015.
A pretrial motion to suppress evidence was heard by Charles J. Hely, J. The cases were tried before Linda E. Giles, J.
Ruth O’Meara-Costello, Boston, for the defendant.
Andrew Shepard Doherty, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Desmond, & Hershfang, JJ.
GREEN, C.J.
[1, 2] 594Following a shooting in the Roxbury section of Boston that left William Davis, Jr., dead, the defendant was apprehended along with two other companions, and subsequently indicted on various charges. A jury returned a verdict of not guilty on the count charging the defendant with murder, but found him guilty on a charge of unlicensed possession of a firearm. In this appeal, he challenges the constitutionality of his detention 595and arrest, and contends that the evidence was insufficient to support his conviction on the charge of unlicensed possession of a firearm under a theory of either constructive possession or joint venture. The defendant also contends that his conviction cannot stand because the trial judge did not instruct the jury, incident to the charge of unlicensed possession, that they were required to find that neither he nor his codefendants were licensed to carry a firearm. See Commonwealth v. Guardado, 491 Mass. 666, 691, 206 N.E.3d 512 (2023) (Guardado I), S.C., 493 Mass. 1, 2, 220 N.E.3d 102 (2023) (Guardado II), cert. denied, U.S. Supreme Ct., No. 23-886, — U.S. —, 144 S.Ct. 2683, — L.Ed.2d — (June 24, 2024) (jury instructions must relay Commonwealth’s burden of disproving that defendant had license to possess firearm when prosecuting defendant for unlawful possession). The defendant also asserts that the trial judge erred in admitting in evidence an annotated compilation of footage captured by various video cameras as the defendant and his companions fled the scene of the shooting.
The jury could not reach a verdict on the charge of accessory to murder after the fact, but the defendant later entered a plea of guilty on that charge. One codefendant, Markeese Skinner, resolved the charges against him by pleading guilty to accessory to murder after the fact. The jury could not reach a verdict as to a second codefendant on the charge of murder in the first degree, resulting in a mistrial; that codefendant, Amir Richardson, was subsequently convicted of murder in the first degree, and his appeal is pending before the Supreme Judicial Court. See SJC-13017.
The Commonwealth does not contend that the evidence sufficed to find the defendant guilty of actual possession of the firearm in question.
"Where the judge does not instruct on this burden, and where there is an absence of record evidence on the lack of license, the defendant is entitled to vacatur of the conviction." Commonwealth v. Lugo, 104 Mass. App. Ct. 309, 320-321, 237 N.E.3d 1206 (2024). "The Supreme Judicial Court's holding in Guardado I ‘applies prospectively and to those cases that were active or pending on direct review as of the date of the issuance of [New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) (Bruen)].’ " Lugo, supra at 321, 237 N.E.3d 1206, quoting Guardado I, 491 Mass. at 694, 206 N.E.3d 512. "In Guardado II, the Supreme Judicial Court clarified that the remedy for an improper jury instruction outlined in Guardado I was a new trial, and not a judgment of acquittal." Lugo, supra.
We conclude that the defendant’s initial detention, and eventual arrest, were supported by reasonable suspicion and probable cause, respectively, and that the evidence was sufficient to support his conviction on the unlicensed possession charge. We further conclude, consistent with Commonwealth v. Bookman, 492 Mass. 396, 401, 212 N.E.3d 254 (2023), that the instructional error was harmless beyond a reasonable doubt. Finally, we discern no prejudice from the admission of the video compilation in evidence. We accordingly affirm the judgment.
Background. We summarize the facts found by the motion judge in his detailed memorandum of decision denying the defendant’s motion to suppress, supplemented by additional facts 596the jury could have found based on the evidence adduced at trial.
Not all of the evidence presented at trial was presented at the hearing on the motion to suppress. In our discussion of the defendant’s challenge to the denial of his motion to suppress we rely on the findings of the motion judge bearing on that issue.
On December 17, 2014, at about 1:38 p.m., William Davis, Jr., was shot to death. The shooting took place on Dudley Street in Roxbury, near the intersection of West Cottage Street and East Cottage Street. Numerous witnesses saw or heard the shooting, or saw the shooter fleeing from the scene. Witnesses described the shooter as a dark-skinned Black man. Several witnesses also said that the shooter had braids. Several described him as wearing a red, or partially red, jacket or top, and a hat, though the details of those descriptions varied. Video from a nearby business showed a Black man wearing a red jacket running toward the victim while pulling a gun from his pocket.
Witnesses testified that the shooter left the scene running down West Cottage Street. Some witnesses also reported seeing a black vehicle near the scene. One witness reported that she was on West Cottage Street when she heard gunshots and then saw a man running up West Cottage Street toward Brook Avenue, holding a gun to his chest with his right hand. There was a dark vehicle at the stop sign on Brook Avenue, with its windows down. There were two men in the vehicle, one in the driver’s seat and one in the front passenger seat. As the running man approached the vehicle the witness heard him yelling, "Wait for me, [w]ait for me," and it seemed at first as though the vehicle might leave him behind. The running man got into the back driver’s side of the vehicle. The vehicle crossed West Cottage Street and continued on Brook Avenue.
Following the shooting, police responded to the scene and to the general area. Responding officers heard descriptions of the shooter broadcast over police radio, including a description of the shooter as a Black man with braids wearing a red jacket or hooded sweatshirt, and an alternative description of the shooter as wearing a black, "North Face style" jacket. Officers Matthew Ross and Matthew Becker drove down Blue Hill Avenue in the direction of West Cottage Street, then turned left onto Woodville Street. On Woodville Street, they saw three Black men approaching the intersection of Woodville Street and Dennis Street. One (Markeese Skinner) was wearing a black "North Face style" jacket, and another (Amir Richardson) was wearing an untucked 597light blue shirt that looked "disheveled," and he had braided hair. Before the officers could approach them, the three entered a house at 9 Woodville Street. Ross and Becker spoke to three other men who were working outside at 26 Woodville Street. One of these men, an electrician preparing for an inspection, testified at trial that the three men had arrived in a black sport utility vehicle (SUV) that came fast up Woodville Street, turned left onto Dennis Street, and then suddenly stopped and parked on Dennis Street. The men quickly got out of the car, one from the driver’s side and the others from the passenger’s side, and then turned left onto Woodville Street.
After interviewing the workers, Ross approached a black GMC Terrain, parked on Dennis Street, and looked through its windows. He was able to see what appeared to be a red hooded sweatshirt in the back seat of the vehicle. Following that discovery, police began to surround 9 Woodville Street. Other officers who later approached the Terrain testified that they were able to view a firearm on the floor of the front passenger seat. Searching the surrounding street, police located a key fob for a GMC rental vehicle in the yard at 23 Woodville Street.
Police ultimately cleared 9 Woodville Street of all its occupants, by using loudspeakers and voice commands to direct the occupants to come out of the house. They handcuffed and frisked Richardson, the defendant, and Skinner, and took cell phones from Richardson and Skinner.
The defendant did not have a cell phone in his possession. The defendant was given Miranda warnings and interviewed in the back of a squad car, and claimed he had been visiting someone named Sean Jones or Sean Johnson in apartment 3 at 9 Woodville Street.
Trial testimony by occupants of apartment 3 contradicted his story.
All three suspects were taken to the police station, where their hands were swabbed for gunshot residue. At the police station, the defendant was interviewed again and described his movements that day, claiming he had taken public transportation to arrive at 9 Woodville Street. Police released the defendant later that night.
At trial, the prosecution admitted Massachusetts Bay Transportation Authority records and video to contradict that account.
In the following days, police executed search warrants at 9 Woodville Street, apartment 2, and on the GMC Terrain. In the 598Terrain, police located marijuana, articles of clothing, a water bottle, and the firearm. At 9 Woodville Street, police seized various items of clothing and cell phones, including a red flip cell phone, a black coat, a black and red coat from a closet with a black Samsung cell phone in the right pocket, and a red and black knit cap. Skinner’s girlfriend lived in that apartment and Skinner would sometimes stay there. Records and testimony showed that the Terrain was a rental car, rented to the defendant’s girlfriend. The defendant also drove the Terrain on occasion.
Police executed warrants to extract the contents of the cell phones they had seized. The black cell phone located in the pocket of the coat at 9 Woodville Street was locked and did not have a subscriber identity module (SIM) card, and police were not able to extract any information from it; however, when powered on, the picture that appeared on the front of the cell phone was of the defendant’s twin babies. The defendant’s girlfriend testified at trial that his cell phone number was the secondary telephone number listed on the rental contract for the Terrain. Telephone records admitted at trial showed contact during the morning and early afternoon of December 17, 2014, between that number and the cell phones taken from Richardson and Skinner. Cell site location information (CSLI) placed Richardson’s and Skinner’s cell phones in the area of Dudley Street around the time of the shooting. The only CSLI available for the number attributed to the defendant placed that cell phone in Everett at 1:02 p.m., thirty-six minutes before the shooting in Roxbury.
Forensic testing showed that stubs from the defendant’s and Skinner’s hands were negative for gunshot residue; stubs from Richardson’s hands were positive. A firearms examiner opined that bullet fragments from the shooting scene were fired from the revolver found in the Terrain. No fingerprints were recovered from the revolver.
The motion judge found that "stubs" are small metal instruments comprising part of a gun residue test kit that look like a small metal tongue depressor; when used on a person, the stub has an adhesive on it designed to pick up gunshot residue.
Latent fingerprints on the Terrain were inclusive of Skinner, the defendant, Richardson, and a fourth individual, Jeffrey Toney. The defendant’s fingerprints were located on the outside and the interior handle of the front driver’s side door. Richardson’s fingerprints were on the outside and interior handle of the front 599passenger door. Skinner’s fingerprints were on the rear passenger door.
Richardson was included as the major contributor to a DNA mixture on a Poland Spring bottle located in the Terrain, and as the possible major contributor to DNA on the red jacket. Richardson was excluded as a contributor to DNA on the firearm. Police collected video from businesses and a pole camera located around the scene of the shooting. The Commonwealth argued at trial (and the jury could have found) that the video footage showed the Terrain driving by the victim twice before the shooting.
Detective Nicholas Moore testified at trial that Richardson, the defendant, and Skinner were not licensed to possess a firearm. The judge did not instruct the jury that, in order to convict the defendant on the unlicensed possession charge they were required to find as an element of the crime that neither the defendant nor Richardson were licensed to possess a firearm.
[3] Discussion. 1. Motion to suppress. The defendant contends that the motion judge erred in finding that police discovered the firearm in the GMC Terrain before ordering the suspects to come out of the house at 9 Woodville Street and that, without that discovery, the police lacked adequate justification to order the three men out of the house. Though we agree that the motion judge erred in finding that the discovery of the firearm in the Terrain preceded the exit order, we disagree that the error deprived the police of justification for the order. Even before the discovery of the firearm in the Terrain, the police had reasonable suspicion, based on specific articulable facts, to believe Richardson, Skinner, and the defendant had committed a crime. See Commonwealth v. Depina, 456 Mass. 238, 242, 922 N.E.2d 778 (2010).
In his brief, the defendant asserts that the requisite justification was reasonable suspicion that the suspects had committed a crime because "the orders to exit the building, coming from multiple armed officers, constituted a stop." For purposes of this discussion, we assume, without deciding, that the exit orders constituted a stop requiring reasonable suspicion.
At the time the exit order issued, police were aware that the victim had been shot at the intersection of Dudley Street, East Cottage Street, and West Cottage Street, and that the victim was either dead or dying. In addition, based on numerous witness reports, police had a reasonable basis to suspect that the man seen fleeing the scene in the direction of Blue Hill Avenue was the shooter, and that the two men in the vehicle he entered, and that drove him away from the scene, were also involved (at a minimum,600 as accessories after the fact). The officers were looking for a group of three men who had been described by witnesses; near Woodville and Dennis Streets, approximately three blocks west of the shooting, they saw three men who appeared to be in their twenties, seemed nervous, were not talking to each other, and avoided eye contact. Two of the three matched portions of the witness descriptions. The third man was later identified as the defendant. After Becker and Ross passed these men and recognized that one of the men appeared to match the description of the suspected shooter, they turned their cruiser around and saw the men enter the building at 9 Woodville Street. Between ten and fifteen minutes had passed since the shooting. Ross learned from the three maintenance workers at 26 Woodville Street that the other three men had come from a black GMC SUV that was parked a short distance up Dennis Street. Ross looked inside the GMC and observed a red sweatshirt on the back seat of the car. Ross broadcast those observations (including that three men had gotten out of the SUV and that one of the men matched the description of the suspected shooter) and that there was a red sweatshirt in the vehicle. Ross then ran to 9 Woodville Street. While Ross was at the SUV, Officer Kevin Cook drove by the SUV. The SUV had not been parked there when Cook had driven by earlier while looking for suspects. Cook then went to the back of 9 Woodville Street and watched the house from there.
Taken together, the observations reported to police by witnesses to the shooting and its immediate aftermath, along with observations made by police during their response to reports of the shooting, combined to provide reasonable suspicion that the person who shot the victim was inside 9 Woodville Street. The temporal and geographic proximity of 9 Woodville Street to the location of the shooting, the direction of flight by the three men seen fleeing the scene, the observation by police of three men (at least two of whom matched the descriptions of those involved in the shooting) walking nervously together and then entering the house at 9 Woodville (and the observation by witnesses of the arrival of those three men in a black SUV matching the description of the vehicle in which the suspects were seen leaving the scene of the shooting) all combine to provide reasonable suspicion that the individuals who entered 9 Woodville might be 'those who were seen fleeing the scene of the shooting, and might have 601been involved in the shooting. See Commonwealth v. Robinson- Van Rader, 492 Mass. 1, 11-15, 208 N.E.3d 693 (2023). See also Depina, 456 Mass. at 246-247, 922 N.E.2d 778.
As the Commonwealth also observes in its brief, the fact that the man later identified as Richardson, and the likely shooter, appeared disheveled, with a dress shirt that appeared to have been thrown over other clothing, together with the observation of a red jacket left behind inside the GMC SUV, could suggest that he was attempting to conceal a distinctive article of outerwear to avoid identification in the period immediately following his shooting of a man in a public location in broad daylight.
2. Sufficiency of the evidence of unlawful possession. The defendant contends that the evidence was insufficient to support his conviction on the charge of unlicensed possession of a firearm under a theory of either constructive possession or joint venture, and the Commonwealth contends that the evidence sufficed under either theory. In evaluating the sufficiency of the evidence, we consider the evidence, including all reasonable inferences therefrom, in the light most favorable to the Commonwealth, to see if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We examine the evidence under each theory.
[4, 5] a. Constructive possession. "Proof of constructive possession requires the Commonwealth to show ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Romero, 464 Mass. 648, 653, 984 N.E.2d 853 (2013), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). Evidence of a defendant’s mere presence in the vicinity of contraband, such as ownership or operation of a vehicle in which a firearm is found, though relevant to possession, is insufficient by itself to establish constructive possession; it must be "supplemented by other incriminating evidence, [which] will serve to tip the scale in favor of sufficiency" (quotations omitted). Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 780, 901 N.E.2d 718 (2009), quoting Brzezinski, supra at 409-410, 540 N.E.2d 1325.
[6, 7] In the present case, the evidence was sufficient to allow the jury to conclude that -- before, during, and after the shooting -- the defendant was the driver of the vehicle within which the firearm was found and that he knew the firearm was in the passenger well of the vehicle when he got out of the vehicle and locked it. The vehicle was rented by the defendant’s girlfriend, who testified 602that the defendant and her mother had permission to drive the vehicle, and that there was only one set of keys to the vehicle. In addition, the defendant’s fingerprints were found in the driver’s side area of the vehicle. Video showed that, before the shooting, the vehicle twice drove past the area where the victim was standing and soon after shots were fired a witness observed the vehicle with its windows down, heard the shooter yell, "Wait for me," and saw the vehicle stop to pick the shooter up. A witness also reported seeing the shooter holding a gun to his chest while running toward the vehicle. A jury could infer from the proximity of the vehicle to the location of the shooting, and the fact that its windows were open, that the sound of the shots fired was audible to the occupants of the vehicle. The firearm was later recovered, plainly visible, from the passenger well of the vehicle. A jury accordingly could conclude that the defendant was aware that the shooter possessed the firearm when he got into the vehicle, and that the defendant was aware the firearm was in the passenger well when he got out of the vehicle and locked it. The act of locking the car sufficed to establish dominion and control over the contents of the vehicle (or at least those known to the defendant), since anyone seeking to gain access to or possession of any item in the vehicle could do so only through the defendant.
The fact that the defendant later threw the keys to the vehicle into the yard of a nearby residence does not derogate from his assertion of control over the firearm in the passenger well. In any event, the jury could infer that the defendant threw the keys into that location with the intention to retrieve them later in the day, after the initial police pursuit had concluded.
[8, 9] b. Joint venture. "[I]n order to establish liability for firearm possession under a theory of joint venture, it is not necessary that the Commonwealth prove that a defendant had actual or constructive possession of a firearm, but only that such a defendant ‘was accessory to another identified defendant in possessing a firearm.’ " Commonwealth v. Humphries, 465 Mass. 762, 767-768, 991 N.E.2d 652 (2013), quoting Commonwealth v. Brown, 50 Mass. App. Ct. 253, 256, 737 N.E.2d 1 (2000). Evidence establishing joint venture may include proof that the defendant "agree[d] to … provide aid or assistance in committing the crime, or in escaping, if such help [became] necessary" (citation omitted). Commonwealth v. Simpkins, 470 Mass. 458, 462, 22 N.E.3d 944 (2015).
[10] For reasons similar to those discussed above concerning constructive possession, the evidence was sufficient to establish the traditional elements of joint venture liability. The jury could have 603inferred that the defendant heard the shots fired at the victim, and knew that the shooter was armed when he asked the defendant to "[w]ait for me" before entering the car in which the defendant drove him away, assisting his escape from the scene of the shooting. See Baxter v. Commonwealth, 489 Mass. 504, 512, 185 N.E.3d 15 (2022).
The defendant’s reliance on Simpkins, 470 Mass. at 462-463, 22 N.E.3d 944, for the proposition that the evidence was insufficient to prove a joint venture, is misplaced. The question at issue in Simpkins was whether the evidence was sufficient to allow retrial on the charge of murder (or armed assault with intent to murder), where the defendant assisted the shooter in escaping the scene of a murder. Id. The jury found the defendant guilty of unlawful possession of firearms and accessory after the fact, similar to the present case, but were unable to reach a verdict on the charges of murder and armed assault with intent to murder, on a theory of joint venture, and a mistrial was declared as to those two charges. Id. at 458-459, 22 N.E.3d 944. In the absence of evidence establishing that the defendant shared the shooter’s intent to kill the victim before the shooting occurred, see id. at 461, 22 N.E.3d 944, the court concluded that principles of double jeopardy barred retrial of the defendant on the mistried charges. See id. at 462-463, 22 N.E.3d 944. Notably, however, the Supreme Judicial Court found no reason to disturb the defendant’s conviction on the unlawful possession charge, and remanded the case to the Superior Court for sentencing on that conviction. See id. at 463, 22 N.E.3d 944.
[11] In his brief on appeal, the defendant has raised a separate challenge to the sufficiency of the evidence: that the Commonwealth submitted no evidence to prove that the defendant knew Richardson was unlicensed. The defendant’s argument on the point is brief, consisting of a single sentence, and supported by citation to a single antiquated and unhelpful authori- ty. For its part, the Commonwealth does not in its brief acknowledge or 604respond to that portion of the defendant’s argument. For purposes of the present case, however, we need not resolve the question whether, to support a conviction of unlawful possession of a firearm on a joint venture theory, the Commonwealth is required to prove both that the coventurer is unlicensed and that the defendant has knowledge of the coventurer’s unlicensed status; because the evidence was sufficient to support the defendant’s conviction on a theory of constructive possession, the conviction may stand even if the evidence was insufficient to support joint venture. See Commonwealth v. Zanetti, 454 Mass. 449, 466-468, 910 N.E.2d 869 (2009).
In his brief, after observing that, under Guardado I, to establish the defendant’s liability as a joint venturer the Commonwealth was required to prove that Richardson was not licensed, the defendant asserts as follows: "Further, in the joint venture theory, the Commonwealth would have to show that [the defendant] was aware that [ ] Richardson was not licensed. See Commonwealth v. Sabean, 275 Mass. 546, 552, 176 N.E. 523 (1931)." Sabean is not particularly on point; it involved a conviction under a statute (as then in effect) that made it a crime for a person licensed to operate a motor vehicle to accompany an unlicensed person who operated a motor vehicle while intoxicated, concluding that the jury were erroneously instructed that it was the defendant's burden to ascertain whether the operator was licensed at the time of operation. Sabean, supra at 548-549, 552, 176 N.E. 523.
We note that the defendant does not argue that the instruction was erroneous for failure to require the jury to find that the defendant knew Richardson was unlicensed in order to find him guilty of unlawful possession on a joint venture theory. The defendant’s argument directed to the jury instruction is instead limited to the assertion that "[i]f relying on the joint venture theory, then the jury had to find that [] Richardson was not licensed; the absence of any instruction to that effect meant [the defendant] could have been convicted of aiding another in legal conduct."
[12–14] 3. Instruction on licensure. The defendant separately contends, and the Commonwealth concedes, that a new trial is required because the jury were not instructed that, in order to convict on the charge of unlawful possession of a firearm, they were required to find beyond a reasonable doubt that the defendant (or codefendant, under the theory of joint venture) was unlicensed to carry a firearm. See Guardado I, 491 Mass. at 668, 691, 206 N.E.3d 512; Guardado II, 493 Mass. at 2, 220 N.E.3d 102. We are, however, obliged to examine independently the error confessed by the Commonwealth. See Commonwealth v. Poirier, 458 Mass. 1014, 1015, 935 N.E.2d 1273 (2010). In the present case, the confession of error is compelled by Guardado I, supra. However, the Commonwealth’s concession that a retrial is required as a result of the instructional error is inconsistent with the holding of the Supreme Judicial Court in Bookman, 492 Mass. at 401, 212 N.E.3d 254. In Bookman, as in the present case, "a police officer testified that neither the defendant nor the codefendant[s] had a license for a firearm." Id. As in Bookman, "[t]here is nothing in the record to suggest that the defendant disputed this testimony, or that the officer’s credibility was in question." Id. Accordingly, as in Bookman, "we are confident that the failure to instruct the jury on licensure was harmless beyond a reasonable doubt." Id. [15–17] 6054. Video compilation. Finally, the defendant contends that his conviction cannot stand because the trial judge erred in admitting in evidence an annotated compilation of footage captured by various video cameras as the defendant and his companions fled the scene of the shooting. As a general matter, a compilation of video or other evidence summarizing voluminous materials for convenient review by the jury is permissible, subject to the sound discretion of the trial judge. See Commonwealth v. Suarez, 95 Mass. App. Ct. 562, 571, 129 N.E.3d 297 (2019). See also Mass. G. Evid. § 1006 (2023). Annotations or captions appearing on any such compilation must be neutral. See Suarez, supra at 571-572, 129 N.E.3d 297. In the present case, the defendant contends that the captions on the video were unfairly argumentative, in that they incorporated the assertion that a particular vehicle depicted in the various video clips was the same as the vehicle the Commonwealth contended the codefendants used to flee from the scene of the shooting. The trial judge here, however, administered a timely and pointed limiting instruction to the jury immediately before and after the video was presented to them. In any event, we discern no prejudice resulting from the video compilation even were we to accept the defendant’s contention that it should have been excluded. The video was of greatest impact to the question of the defendant’s role in assisting Richardson’s escape from the scene of the 606murder, and in support of the Commonwealth’s claim that the defendant was an accessory to the murder itself. The video was entirely immaterial to the question of the defendant’s constructive possession of the firearm which, as we have explained, was established by his act of locking the vehicle while knowing that the firearm was in the front passenger foot well, thereby establishing dominion and control over it.
The defendant’s contention that the evidence at trial concerning licensure was insufficient to support his conviction is incompatible with the holding in Bookman. As the defendant acknowledges, however, even if the Commonwealth had presented no evidence at trial concerning licensure, his contention that principles of double jeopardy would bar a retrial is contrary to the decision of the Supreme Judicial Court in Guardado II, 493 Mass. at 7-8, 220 N.E.3d 102.
Before the video compilation was played, the judge instructed the jury as follows:
"Members of the jury, I remind you that it is up to you and you alone to determine what the facts are in this case. You alone determine what you see in any exhibit, including photographs and digital evidence. This is a movie compiled by the Commonwealth reflecting its theory of the case. It goes without saying it's up to you to determine what you see on these exhibits, including this last exhibit that is a compilation of other exhibits already in this case."
Following presentation of the video, the judge again advised:
"Members of the jury, I want to remind you of a couple of things that I mentioned earlier. The Commonwealth has the right to focus you and call your attention to certain aspects of this digital and photographic compilation. And therefore, you saw circles and arrows and captions. But I remind you, and it’s important that you remember, it’s up to you and you along to determine what you see in any exhibit, including this digital and photographic compilation."
Indeed, the defendant directs his argument on prejudice solely to the joint venture theory of possession. It seems evident from the verdict that the jury concluded that the defendant knew of the firearm. Once the jury concluded that the defendant knew about the firearm in the vehicle, a conviction on a theory of constructive possession was essentially certain on this evidence. We also note that the jury did not reach a verdict on the related charge against the defendant on accessory after the fact to murder. See note 1, supra.
Judgment affirmed.