Opinion
10-P-827
08-01-2011
COMMONWEALTH v. SAROEUN HENG.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions of possession of a firearm, G. L. c. 269, § 10(a), and possession of a large capacity ammunition feeding device, G. L. c. 269, § 10(m). His specific appellate challenges are that: (1) the evidence was not sufficient with respect to his possession of the firearm, either constructively or by aiding and abetting; (2) the evidence was insufficient to prove, under G. L. c. 269, § 10(m), that the defendant knew that the ammunition feeding magazine in the gun could hold more than ten rounds of ammunition; (3) the trial judge erred in admitting certain evidence -- of a drive-by shooting, and concerning certain attire worn by the defendant and others -- suggesting that the defendant may be a gang member, may have been involved in the drive-by shooting, and/or may have been holding the firearm in order to retaliate for the shooting; and (4) the firearms laws underlying the convictions are unconstitutional under the Second Amendment to the United States Constitution. We affirm.
1. Background facts. On the evening of March 22, 2008, the defendant, with others including Matthew Berrigan and Paul Marchand, attended a birthday party held by Berrigan's neighbor, Saroeun Pen, to celebrate Pen's daughter's first birthday. Pen lived at 38 Lincoln Street, while Berrigan lived at 23 Washington Street, which was directly behind Pen's apartment building. A number of partygoers, including the defendant, were attired similarly in various articles of red clothing. At approximately 9:15 P. M., Pen was taking out the trash when unknown persons drove by the apartment building and fired five or six gunshots. The bullets struck the side of the building and entered a first floor apartment, as well as Pen's apartment.
Lowell police officers immediately responded to the scene. The officers went to Berrigan's nearby house at 23 Washington Street. Upon arriving, the officers saw Berrigan on the steps of the front porch and two men at the rear of the house. Detective Erickson detained and pat-frisked Berrigan. Officer Bowler proceeded to the rear of the building, where he saw the defendant and Marchand. Officer Bowler testified at trial that he made eye contact with the defendant and Marchand, and they both looked down, 'very specifically, straight down towards their feet,' then 'quickly' looked back up at Officer Bowler and fled. The men hid behind the corner of the house. Officers Bowler and Ramirez followed. Bowler knew Marchand and, by name, ordered Marchand to come out. After a second call-out and directive, Marchand emerged from behind the house. Officer Bowler then ordered the defendant to come out. The defendant did not emerge. Bowler went to the rear of the house and discovered the defendant crouching against the side of the building, squeezed against the wall. The defendant was arrested.
A sweep of the area yielded a large, open duffel bag located approximately two feet from where the defendant and Marchand were standing when Officer Bowler first saw them and where the two men had looked to the ground before fleeing. The butt end of a firearm, in plain view, protruded from the duffel bag. When requested to do so, neither man produced a license to carry a firearm. The firearm was loaded with a magazine containing nine rounds of ammunition but which could hold up to twenty-one rounds.
At trial, a State police firearms expert testified that test-firing of the weapon demonstrated that it was operable. The expert also testified concerning the magazine's capacity to hold twenty-one rounds. General Laws c. 269, § 10(m), incorporates the definition of 'large capacity feeding device' in G. L. c. 140, § 121, which for present purposes identifies such a device as one that is 'capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun shells.' G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8.
2. Sufficiency of the evidence. As previously noted, the defendant challenges the sufficiency of the evidence concerning both his possession of the firearm and the offense element of G. L. c. 269, § 10(m), that the gun magazine could be capable of holding more than ten rounds of ammunition. We view these challenges to the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We conclude that the defendant's evidentiary challenges are unavailing.
A. Possession of the firearm. The jury were instructed on both constructive possession and aiding and abetting; that is, the jury were instructed that the defendant could be found guilty if he constructively possessed the firearm as a principal, or if he aided and abetted others (i.e., Marchand) in the possession of the gun. The verdict did not specify on which theory the jury relied. Therefore, the evidence must be sufficient to support both theories. See Commonwealth v. Maynard, 436 Mass. 558, 566 (2002).
For constructive possession, the Commonwealth must prove 'that the defendant had knowledge of the gun, 'coupled with the ability and intention to exercise dominion and control [over it]." Commonwealth v. Snow, 76 Mass. App. Ct. 116, 118 (2010), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). For aiding and abetting in the unlawful possession of a firearm, 'the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.' Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009).
In this case, the Commonwealth's evidence, as summarized above, was sufficient to support the defendant's conviction based upon either theory, constructive possession or aiding and abetting in the possession of the gun. The defendant was encountered by the police near the apartment where a drive-by shooting had just occurred. The firearm was in plain sight protruding from the duffel bag that lay on the ground in close proximity to the defendant and Marchand. When confronted by Officer Bowler, both the defendant and Marchand looked directly to where the gun was held in the bag and then fled to hide at the rear of the building, which demonstrates consciousness of guilt.
B. Large capacity feeding device. As to the conviction under G. L. c. 269, § 10(m), the defendant argues with respect to the 'large capacity feeding device' that the government did not offer adequate evidence that he knew the magazine could hold in excess of ten rounds of ammunition.
Contrary to the defendant's argument, the Commonwealth is not required to prove that the defendant knew the magazine was capable of holding more than ten rounds in order to prove that the defendant possessed a large capacity feeding device. That the defendant's knowledge of the magazine's capacity is not an element of required proof is similar to the proof rule in firearm and drug trafficking cases. 'Where . . . the jury could have inferred that the defendant knew a particular firearm was in his possession, his ignorance vis-- vis that firearm's dimensions [meeting the definition of sawed-off shotgun] is not a valid defense.' Commonwealth v. O'Connell, 432 Mass. 657, 663-664 (2000). '[P]ossession of a quantity of at least fourteen grams of cocaine is an element in the crime of trafficking. See G. L. c. 94C, § 32E; Commonwealth v. Johnson, 410 Mass. 199, 201 (1991). Nonetheless, the Commonwealth need not prove that the defendant had actual knowledge of the quantity. Instead, in order to convict, the Commonwealth must satisfy the jury that the amount of cocaine was fourteen grams or more.' Commonwealth v. Rodriguez, 415 Mass. 447, 452 (1993), overruled in part on other grounds by Commonwealth v. Jimenez, 438 Mass. 213, 220 n.5 (2002).
3. Evidence of the drive-by shooting and the red items of attire. The defendant contends that the trial judge erred in admitting evidence regarding the drive-by shooting and the various red articles of clothing worn by partygoers, including the defendant and Marchand. Specifically, the defendant argues that this evidence, when taken together, was unduly prejudicial because it could permit the jury to infer that the defendant, Berrigan, and Marchand were gang members.
The defendant's suggestion that somehow there was prejudice because the introduction of evidence concerning red dress might be taken to mean that he was responsible for the drive-by shooting is wholly unsupported.
There was no error. First we note that, as to the evidence of common dress, in this case, the trial judge took measured steps to prevent unfair prejudice by preventing the Commonwealth from using the word 'gang' when referring to the relationship between the defendant, Berrigan, and Marchand.
No objection was made as to the evidence of common dress. While the defendant did object to some evidence concerning the drive-by shooting, other shooting evidence was admitted without objection. Where there is no objection, the standard of review is whether there was error, and if so, whether the error caused a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Where there was an objection, the standard of review is whether there was error, and if so, whether it was prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 351, 353 (1994). We need not resolve whether the defendant's objections were adequate because we discern no error in admitting the challenged evidence.
Moreover, the evidence regarding the drive-by shooting is probative as to why the defendant and Marchand were in possession of a gun at Berrigan's house just after the drive-by shooting occurred. Pen identified the defendant as being present at his party, at which some of the guests wore red clothing, and at which the drive-by shooting occurred. The evidence of common dress (the distinctive red clothing shared by the defendant, Marchand, and other partygoers) supported the Commonwealth's contention that the defendant acted in concert with the similarly dressed Marchand -- that the defendant knew Marchand, knew that Marchand intended to commit the crime, and, by agreement, was willing and able to assist in the possession of the firearm.
Constitutionality of the statutes. Relying primarily on the holding of the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), the defendant's final argument is that regulation of the possession of the firearm and magazine in the manner proscribed by G. L. c. 269, § 10(a) and § 10(m), violates the Second Amendment to the United States Constitution. At the time of the defendant's trial in December, 2009, the Supreme Court had not yet determined that the Second Amendment applied to the States. See McDonald v. Chicago, 130 S. Ct. 3020 (2010).
While the defendant did not raise this issue at trial, it may be raised on appeal. See Commonwealth v. Powell, 459 Mass. 572, 587 (2011). However, under Powell, this Second Amendment challenge is unavailing. As written in Powell, 'the defendant overlooks that the right secured by the Second Amendment is not unlimited. Both Heller and McDonald make that point clear. . . . The Court also emphasized in those decisions that the Second Amendment does not ban all regulation of firearms. . . . Rather, the Court only went so far as to say that the Second Amendment right to keep and bear arms was infringed on when legislation effectuated a total ban of handgun possession, or prevented the use of an operable firearm, in the home.' Id. at 589.
Judgments affirmed.
By the Court (Rapoza, C.J., Grasso & Berry, JJ.),