Opinion
No. 15–P–1202.
12-12-2016
COMMONWEALTH v. HERSHEL H., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the juvenile was found guilty of being a youthful offender on an indictment charging him with carrying a firearm without a license. He was also adjudicated delinquent on charges of possession of ammunition without a firearm identification (FID) card, carrying a loaded firearm without a license, and receiving a firearm with a defaced serial number. The juvenile appeals on several grounds. He first argues, and the Commonwealth agrees, that, given the facts of this case, his delinquency adjudication for possession of ammunition without an FID card is duplicative of his conviction for possession of a loaded firearm without a license. The juvenile next contends that, where the Commonwealth failed to introduce a stipulation in its case-in-chief that the juvenile was seventeen years old at the time of the offense, the jury lacked sufficient evidence upon which to adjudicate him a youthful offender. Finally, he takes issues with the judge's instructions on the elements of the offenses. We confine our review to the two contested issues. Those were not objected to and are raised for the first time on appeal. Therefore, we review them for error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002).
The Commonwealth dismissed the count of the delinquency complaint charging the juvenile with carrying a firearm without a license, upon obtaining a youthful offender indictment for that charge. The Commonwealth also dismissed prior to trial the charge of carrying a firearm on school grounds.
The only ammunition the defendant is charged with possessing was contained inside the firearm. The parties agree, therefore, that the defendant's adjudication of delinquency on the possession of ammunition count is duplicative of his adjudication of delinquency on the carrying of a loaded firearm count. We accept that it was duplicative and reverse the adjudication of delinquency on the possession of ammunition count. See Commonwealth v. Johnson, 461 Mass. 44, 51–53 (2011). Based on the judge sentencing the juvenile to concurrent commitments to the Department of Youth Services until the age of nineteen on the adjudications of delinquency, the juvenile's sentencing is unlikely to be affected by our memorandum and order and we do not remand to the Juvenile Court for resentencing.
Discussion. 1. Age stipulation. Prior to resting, the Commonwealth did not introduce the parties' stipulation that the juvenile was seventeen years of age at the time of the offense but the judge recited the stipulation later in the trial. The juvenile contends that the evidence is insufficient to support an adjudication for youthful offender because the Commonwealth failed to admit the stipulation as to age, an essential element, before the close of its case. We disagree.
In a youthful offender adjudication, the Commonwealth bears the burden of establishing the requirements of G.L. c. 119, § 54, including that the juvenile is between the ages of fourteen and seventeen. See Commonwealth v. Quincy Q., 434 Mass 859, 866 (2001).
Generally, when proceeding by way of stipulation as to the "existence of an element in a case, the stipulation should be placed before the jury before the close of the evidence. Such a rule is consistent with the acknowledged burdens of production and proof that rest with the Commonwealth in a criminal case." Commonwealth v. Ortiz, 466 Mass. 475, 484 (2013). If the Commonwealth fails to admit such a stipulation during its case-in-chief, problems could arise should a defendant move at the close of the Commonwealth's case for a required finding of not guilty based on no evidence having been introduced with respect to the stipulated element. Id. at 485. That was not the case here, as the defendant did not raise the failure to admit the stipulation during his required finding of not guilty motion.
Here, before the close of the evidence, without objection, the judge recited the stipulation to the jury. As such, the stipulation was in evidence, and could be properly considered by the jury. That stipulation was alone sufficient to meet the Commonwealth's burden of proof of the defendant's age at the time of the offense. See id. at 481. In addition, other evidence also established the defendant's age, as the defendant's date of birth appeared on unredacted fingerprint reports that were admitted in evidence. Accordingly, the evidence amply supported the element of the defendant's age. There was no error and no substantial risk of a miscarriage of justice.
2. Jury instructions. The juvenile next asserts that the judge failed to properly instruct the jury on the elements of the offenses in violation of his due process rights. Examining the jury instructions "in [their] entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury," we perceive no error. Commonwealth v. Sellon, 380 Mass. 220, 231–232 (1980).
The Commonwealth was required to prove that the juvenile knowingly carried a firearm without a license, G.L. c. 269, § 10(a ), knowingly carried a loaded firearm without a license, G.L. c. 269, § 10(n ), and received a firearm "with knowledge that its serial number ... has been removed." G.L. c. 269, § 11C, inserted by St.1937, c. 199. The juvenile stipulated to all of the elements of the charged offenses except for possession of the firearm and knowledge. "If controvertible facts are agreed by stipulation, those facts no longer are at issue and must be accepted by the fact finder." Commonwealth v. Triplett, 398 Mass. 561, 570 (1986).
The parties' stipulations included (1) that the recovered firearm met the statutory definition of a firearm, (2) that it was loaded, and (3) that it had a defaced serial number. The judge's instructions reiterated those stipulations, and then focused on the controverted elements. The judge fully explained the concepts of actual and constructive possession, including knowledge, intent, and the ability to exercise dominion and control. He instructed on presumption of innocence, proof beyond a reasonable doubt, and other matters pertaining to the jury's role as fact finders. In our view, those instructions, read in their entirety, sufficiently apprised the jury of the Commonwealth's burden to prove the elements of each offense beyond a reasonable doubt. There was no error.
Accordingly, the adjudication of delinquency as to the charge of possession of ammunition without an FID card is reversed and that verdict is set aside. The judgment and the remaining two adjudications of delinquency are affirmed.
So ordered.