Summary
In Commonwealth v. Gutierrez, 82 Mass. App. Ct. 1118 (2012), we rejected the defendant's claim that the evidence at his 2009 jury trial was insufficient to prove beyond a reasonable doubt that he caused serious bodily injury, as that phrase is used in G. L. c. 265, § 13A(b)(i) and (c), and affirmed the judgments.
Summary of this case from Commonwealth v. GutierrezOpinion
No. 11–P–1612.
2012-10-25
COMMONWEALTH v. Bismarck GUTIERREZ.
By the Court (CYPHER, GRAINGER & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the victim reported to the police that the defendant had beaten her, officers searched the motel room where the defendant, the victim, and two others were living. There they found a .25–caliber pistol, a .38–caliber revolver, and ammunition. The defendant appeals his convictions of possession without a license of the .25–caliber and .38–caliber firearms and the ammunition, G.L. c. 269, § 10( h ), one count of assault and battery causing serious bodily injury, G.L. c. 265, § 13A( b )(i), and two counts of assault and battery, G.L. c. 265, § 13A. We affirm.
Discussion. The defendant challenges both the sufficiency of the evidence and related jury instructions with respect to his convictions. Some of the defendant's challenges to the sufficiency of the evidence are preserved; others are unpreserved. The sufficiency claims are reviewed under the now familiar Latimore standard, which is equally applicable to both the preserved and unpreserved sufficiency claims. See Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979). See also Commonwealth v. McGovern, 397 Mass. 863, 867–868 (1986). Because there was no objection in connection with the jury instructions at trial, we review the challenged instructions for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2002). We reserve a discussion of the facts to each of the issues presented.
1. Operability of the firearm. The defendant argues that the evidence was insufficient to prove that the .25–caliber pistol, which had a broken firing pin, was an operable firearm within the meaning of G.L. c. 140, § 121, and hence did not fall within the prohibition of G.L. c. 269, § 10( h ). A broken firing pin does not necessarily render a firearm inoperable within the meaning of the statutes. “While it may be conceded that a weapon designed for firing projectiles may be so defective or damaged that it has lost its initial character as a firearm, ... this character is not lost when a relatively slight repair, replacement, or adjustment will make it an effective weapon.” Commonwealth v. Jefferson, 461 Mass. 821, 828 (2012), quoting from Commonwealth v. Bartholomew, 326 Mass. 218, 220 (1950) (evidence showed replacement of a firing pin is a slight repair). See Commonwealth v. Prevost, 44 Mass.App.Ct. 398, 402–403 (1998) (gun that is capable of firing after simple replacement of firing pin is an operable firearm). Here, the evidence was sufficient because it established that all that was required was a slight repair to make the firearm operable. The expert witness who fired the weapon testified that the repair took thirty seconds, was performed without difficulty, and that the firing pin could be ordered on the Internet or purchased at stores in Massachusetts at a cost of “approximately fifteen dollars.” See Commonwealth v. Jefferson, supra.
While the decisional law enunciates an objective “slight repair” standard for determining operability, the judge, in understandable reliance on the Model Jury Instructions for Use in the District Court § 7.60, Supplemental Instruction 1 (2006), told the jury that “a weapon remains a firearm within the meaning of the law, when a relatively small repair, replacement or adjustment that the defendant is capable of making on the spot will again make it an effective weapon.” The defendant maintains that the language the “defendant is capable of making on the spot” inserted an additional, subjective element, namely that the defendant was actually capable of replacing the firing pin. While the instruction does not compel this interpretation, it is open to this interpretation, and is therefore erroneous. The statute, and the cases, clearly define the offense by reference to the operability of the weapon, not the capabilities of individual defendants.
In pertinent part, G.L. c. 140, § 121, as appearing in St.1998, c. 180, § 8, defines a firearm as a “pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged....”
The defendant's corollary argument—that the instruction became the “law of the case” and that the Commonwealth was therefore required to produce evidence that the defendant himself had the actual ability to repair the weapon—also lacks merit. The defendant was not harmed by an instruction that was favorable, not detrimental, to him.
“There is nothing to the contention that the erroneous ruling became the law of the case, requiring that the evidence conform to the requirements of the instruction rather than those of the statute.” Commonwealth v. Bruneau, 7 Mass.App.Ct. 858, 858 (1979), citing Commonwealth v. David, 365 Mass. 47, 55–56 (1974). Here the evidence was sufficient because a reasonable jury could infer “the existence of each essential element,” Commonwealth v. Rivera, 460 Mass. 139, 141 (2011), of the offense of possession of an unlicensed firearm beyond a reasonable doubt.
This case is distinguishable from those in which an erroneous instruction is treated as the law of the case because it arguably exposed the defendant to a risk of a duplicative conviction or an inconsistent verdict. See Commonwealth v. Peach, 239 Mass. 575, 581 (1921); Commonwealth v. Rand, 363 Mass. 554, 564 (1973); Commonwealth v. Thomas, 400 Mass. 676, 681–682 (1987); Commonwealth v. Sanchez, 405 Mass. 369, 381–382 (1989); Commonwealth v. Pinero, 49 Mass.App.Ct. 397, 398–399 (2000). This case is also distinguishable from those sufficiency cases in which the judge had instructed the jury not to consider certain evidence. See Commonwealth v. Hennessey, 17 Mass.App.Ct. 160, 164–165 (1983). Finally this case is distinguishable from those involving certain judicial rulings in which the law of the case doctrine is inapplicable. There “[t]he ‘law of the case’ doctrine applies [only] to ‘questions decided upon an earlier appeal in the same case.’ “ Gangi v. Commonwealth, 462 Mass. 158, 161 n. 4 (2012), quoting from King v. Driscoll, 424 Mass. 1, 8 (1996). “[E]ven then,” the doctrine does not apply where “the [appellate] decision was clearly erroneous and would work a manifest injustice.” Gangi, supra.
See Commonwealth v. Jefferson, 461 Mass. at 828.
The defendant's other firearms related arguments are without merit. As the defendant acknowledges, once the operability of the firearm was established, the evidence of possession of ammunition without a license was sufficient. “The cartridges themselves and the officer's testimony that they were found in the magazine, which was in the gun at the time it was seized, provide overwhelming evidence that the cartridges met the statutory definition of ammunition.” Commonwealth v. Muniz, 456 Mass. 166, 173 (2010). See Commonwealth v. Velez, 82 Mass.App.Ct. 12, 18 (2012). The defendant's argument concerning the constitutionality of firearms licensure in Massachusetts, raised for the first time on appeal, is foreclosed by Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011).
2. Constructive possession of a firearm. The defendant claims that the evidence was not sufficient to prove that he constructively possessed the .38–caliber revolver. The victim, whom we shall refer to as K.A., identified the .25–caliber pistol as belonging to the defendant, but did not identify the .38–caliber revolver as his. There was, however, other evidence from which a jury could have found that the defendant had the requisite knowledge coupled with the ability and intention to exercise dominion and control. See Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008); Commonwealth v. Charlton, 81 Mass.App.Ct. 294, 299 (2012).
Viewed in the light most favorable to the Commonwealth, the evidence showed that the defendant occupied the motel room where the gun was found, thus indicating “more than mere presence.” Commonwealth v. Handy, 30 Mass.App.Ct. 776, 781 n. 5 (1991), quoting from Commonwealth v. Arias, 29 Mass.App.Ct. 613, 616 (1990), S. C., 410 Mass. 1005 (1991). He had a key to the motel room. See Commonwealth v. Gonzalez, supra at 148 n. 5; Commonwealth v. DePina, 75 Mass.App.Ct. 842, 854 (2009). When found, both guns were wrapped in a white T-shirt. K.A. saw the defendant in possession of two guns wrapped in a white T-shirt in the motel room, and had seen him cleaning two guns previously. From this testimony, the jury could have inferred that both guns found in the white T-shirt belonged to the defendant, that they were placed in the T-shirt by him, and that he exercised dominion and control over the room generally and the guns in particular, “incriminating evidence [that] ... tip[s] the scale in favor of sufficiency.” Commonwealth v. Gonzalez, supra at 146. While the defendant asserts that other people shared the motel room and could have placed the .38–caliber gun with the .25–caliber gun that K.A. testified was the defendant's, “[t]he Commonwealth is not required to ‘exclude every reasonable hypothesis of innocence’ since an inference ‘need not be necessary and inescapable,’ but only ‘reasonable and possible.’ “ Commonwealth v. Frongillo (No. 1), 66 Mass.App.Ct. 677, 680 n. 8 (2006), quoting from Commonwealth v. Arias, supra at 618.
The fact that the gun was found on an air conditioner on the balcony is not dispositive, as the balcony was only accessible by way of the motel room to which the defendant was linked. The only way to access the balcony, barring the use of a ladder from below, was through the motel room itself.
3. Serious bodily injury. The defendant contends that the evidence was not sufficient to prove beyond a reasonable doubt that he caused “serious bodily injury” as that term is used in G.L. c. 265, § 13A( b )(i). “Serious bodily injury” is defined as “bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.” G.L. c. 265, § 13A( c ), as appearing in St.2002, c. 35, § 1. The indictment alleged that the defendant had caused serious bodily injury by fracturing K.A.'s nasal bones.
Viewing the evidence in the light most favorable to the Commonwealth, the evidence was sufficient to prove impairment of a serious bodily function beyond a reasonable doubt. The defendant assaulted K.A. after she temporarily left King Arthur's Lounge.
While driving from the lounge back to the motel, the defendant repeatedly struck K.A. in the face. After returning to the motel, K .A. went into the bathroom to attend to her injuries. The defendant entered and resumed beating her for an extended period of time, choked her, and knocked her to the floor. She was bleeding from the nose, she had blood on her pants, and her face and neck were abraded and bruised.
K.A. testified that the defendant introduced her to prostitution. He had instructed her to talk to men at the lounge. K.A. told him she was uncomfortable, left, and called friends to come and get her. When she returned to the lounge, the defendant struck her, and they left. The beating which resulted in these charges then began in the car.
K.A. had a scar on her nose and a deviated septum from a previous injury. Her condition after the beating had degraded as follows. Her nasal bone had “shifted to the left side”, she found it “more difficult to breathe”, and her “sense of smell [was] vague.” She testified that the defendant had, in fact, hit her in the nose, and that she sought medical treatment that evening. The contemporaneous medical records describe “trauma” and a “comminuted fracture of the nasal bone.”
The jury could have found beyond a reasonable doubt that the defendant's blows caused a broken nose, and that a bodily function, breathing, was impaired as a result of the defendant's actions. See Commonwealth v. Jean–Pierre, 65 Mass.App.Ct. 162, 167 (2005).
While the defendant argues that this impairment and fracture were the result of an earlier injury, “[t]o the extent that conflicting inferences are possible from the evidence, ‘it is for the jury to determine where the truth lies.’ “ Commonwealth v.. Wilborne, 382 Mass. 241, 245 (1981), quoting from Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978).
We need not decide whether our holding in Commonwealth v. Jean–Pierre, supra, should be narrowed by requiring, in addition to a broken bone, some further impairment of bodily function, since both are present here.
4. Assault and battery. The defendant was convicted of two counts of assault and battery, G.L. c. 265, § 13A; one count pertaining to the assault and battery in the car, and another pertaining to the assault and battery in the bathroom. The defendant claims that the judge's instructions conflated assault and battery with assault and battery causing serious bodily injury.
After instructing the jury on the elements of assault and battery causing serious bodily injury, the judge stated that assault and battery was comprised of “assault and battery substantial bodily injury without the substantial bodily injury.” He then instructed the jury that the Commonwealth must prove an intentional touching, however slight, that was likely to cause “substantial bodily harm.”
The judge instructed the jury as follows:
“Okay. So what are the elements of an assault and battery?
We've gone over this. I'll go over it again. It's assault and battery substantial bodily injury without the substantial bodily injury. Element number one, that the defendant touched the person of [K.A.] without have [ sic ] any right or excuse to do so. Number two, that the defendant intended to touch [K.A.], that he consciously and purposefully intended the touching to occur, and that the touching was not merely negligent or accidental. And, third, that the touching was likely to cause substantial bodily harm. As to the charge of assault and battery, the Commonwealth—it's not necessary that the Commonwealth prove that the defendant specifically intended to cause the alleged injury to [K.A.].”
In the circumstances presented here, simple assault and battery requires proof of a likelihood of “bodily harm”, not “substantial bodily harm.” “Any touching ‘with such violence that bodily harm is likely to result’ is a battery....” Commonwealth v. Burke, 390 Mass. 480, 482 (1983), quoting from Commonwealth v. Farrell, 322 Mass. 606, 620 (1948). See generally Commonwealth v. Carey, 463 Mass. 378, 385 (2012). The defendant argues, however, that once the word “substantial” was added to the instruction, the Commonwealth was obligated to offer proof of a likelihood of substantial bodily harm, and that the evidence was insufficient on this point. For the reasons stated previously, we decline to hold that the instruction added an element to a statutory offense for purposes of reviewing the sufficiency of the evidence. Commonwealth v. David, 365 Mass. at 55–56.
To prove an intentional battery, the Commonwealth was required to prove an “intentional and unjustified use of force upon the person of another, however slight.” Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting from Commonwealth v. McCan, 277 Mass. 199, 203 (1931). The defendant does not dispute that the evidence, consisting of two separate beatings, each of which left K.A. bruised and bleeding, and which extended over a period of time, was sufficient to support a finding of a likelihood of bodily harm beyond a reasonable doubt. Compare Commonwealth v. Moore, 50 Mass.App.Ct. 877, 879–880 (2001).
The reference to the word “substantial,” if anything, favored the defense by suggesting a higher standard of proof. It is not difficult to infer that the failure to object to this instruction was a well-considered “tactical decision” that did not result in a substantial risk of miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986). The actual result here was that the jury found a likelihood of substantial bodily harm, a finding which subsumed a likelihood of bodily harm. The challenged portion of the instruction therefore did not “materially influence[ ] the guilty verdict.” Ibid., quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Judgments affirmed.