Opinion
No. 11–P–1818.
2013-05-15
COMMONWEALTH v. Marvin MINOR.
By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a Superior Court jury trial, the defendant was convicted of firearm and ammunition possession charges. , He now appeals. We affirm.
The four convictions, which related to a single firearm, were as follows: unlawful possession of a firearm; unlawful possession of a firearm with a defaced serial number; unlawful possession of a large capacity weapon; and unlawful possession of ammunition.
The defendant and his codefendant successfully severed charges of armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, and offenses relating to a firearm used in a shooting but never discovered. The defendants were acquitted of these charges in a separate trial. The firearm in the present appeal is unrelated to the firearm in the severed trial.
Discussion. 1. Exclusion of evidence. On appeal, the defendant argues that the trial judge committed error in denying his request to put forth third-party culprit evidence. See Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). Specifically, the defendant sought to call a ballistics expert to testify to the existence of gunshot residue (GSR) on the hands of the codefendant. GSR is admissible to show that an individual “fired a weapon, handled a weapon or was in close proximity to a fired weapon.” Commonwealth v. Johnson, 463 Mass. 95, 107 (2012). The defendant argues that the excluded evidence would have demonstrated to the jury that only his codefendant possessed the gun in the trunk of the car. We review claims regarding the exclusion of third-party culprit evidence independently to determine whether any error was harmless beyond a reasonable doubt. Commonwealth v. Conkey, 443 Mass. 60, 66–67, 70 (2004). Before trial, the defendant filed a motion in limine requesting that the trial judge exclude all evidence relating to the shooting that was the subject of the severed trial (see note 2, supra ). The judge granted this motion. Notwithstanding this ruling, the defendant also requested that the trial judge allow the defendant to present the GSR evidence in the instant case. Quite simply, as the trial judge found, the defendant cannot have it both ways—he cannot simultaneously request that the judge bar the Commonwealth from presenting evidence as to the severed charges, but also request that the judge allow him to present evidence necessarily implicating the severed charges. By filing the motion in limine, the defendant foreclosed his ability to submit the GSR evidence.
Moreover, even if the defendant had put forth the GSR evidence, the jury could still have reasonably found that both defendants constructively possessed the firearm. See Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004); Commonwealth v. Romero, 464 Mass. 648, 653–659 (2013). See also part 5, infra.
2. Testimony about prior shooting. On appeal, the defendant argues that Officer Lydon's testimony that the police seized the gun and ammunition during the investigation of an earlier shooting substantially prejudiced the defendant and requires that this court vacate the defendant's convictions. Assuming arguendo that the defendant properly objected and preserved this issue for appellate review, then we engage in a two-part assessment: (1) whether there was error, and (2) if so, whether the error was prejudicial. Commonwealth v. LeClair, 68 Mass.App.Ct. 482, 487 (2007). The admission of Officer Lydon's statement constituted error as it involved a subject that was the basis of the ruling on the motion in limine. However, neither Officer Lydon nor any additional witness repeated the challenged testimony during the course of the trial. Thus this one-sentence statement was the only source of any alleged prejudice. Moreover, there is no showing that defense counsel asked the trial judge to provide a curative instruction. In sum, this single statement did not result in prejudicial error; it could not have significantly influenced the jury.
While it appears that the defendant did not object specifically to the testimony, the Commonwealth does not dispute the defendant's claim that the error was preserved.
3. Admission of bullet-proof vest and handcuffs. The defendant also argues that the trial judge committed error in allowing the Commonwealth to submit evidence of the bullet-proof vest and handcuffs. While the trial judge has broad discretion in balancing the probative value of the evidence with its potential prejudicial effect, we review for “palpable error.” Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).
The trial judge determined that the probative value of the bullet-proof vest and the handcuffs outweighed any prejudicial effect, because the disputed evidence, which was also found in the trunk of the defendant's car, made it more likely that the defendant knew of the gun in the trunk. Even assuming arguendo it was error to allow the admission of the evidence of the bullet-proof vest and handcuffs, given the strength of the other evidence, the verdicts would not have been different.
4. The arrest and subsequent search. The defendant also appeals from the denial of his motion to suppress in which he argued that the police did not have probable cause to arrest him or to search the trunk of his car. The police action in this case constituted a lawful felony stop where “the subjects of the stop [were] suspected to have been involved in violent crimes, and therefore [were] treated as armed and dangerous.” Commonwealth v.. Ancrum, 65 Mass.App.Ct. 647, 649 n. 5 (2006). The officers possessed more than reasonable suspicion to conduct a threshold investigation. The officers had received information that there had been a shooting at 52 Humphreys Street, that the vehicle from which the shooter had emerged was a tan Oldsmobile with dark tinted windows, and that the vehicle's passenger window was broken. Accordingly, minutes later when the officers saw the car in question a few blocks from the scene of the shooting, the officers had probable cause to believe that the occupants were involved in the shooting, that the weapon used in the shooting would be found in the car, or both. Thus, the police were permitted to stop the vehicle, order the defendants out of the car, handcuff them, and search the car, including the trunk, for weapons. See Commonwealth v. Motta, 424 Mass. 117, 120, 124 (1997); Commonwealth v. Gouse, 461 Mass. 787, 792–793 (2012); Commonwealth v. Edwards, 71 Mass.App.Ct. 716, 719–720 (2008) (police had probable cause to arrest where they reasonably believed that the defendant, implicated in the recent firing of a handgun, had committed the felony of unlawfully possessing a firearm). The judge properly denied the motion to suppress.
5. Sufficiency of evidence. Finally, the defendant argues that the Commonwealth failed to prove that the defendant actually or constructively possessed the firearm and ammunition found in the trunk. Under the familiar standard, we review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
In order to establish constructive possession, the Commonwealth must prove that the defendant had “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004), quoting from Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). Here, the Commonwealth introduced evidence (1) that the defendant regularly borrowed the car in question from his father, (2) that the defendant had been driving the car for a few days before his arrest, (3) that the defendant's father had not put the firearm in the trunk, and (4) that an envelope addressed to the defendant had been recovered from the back seat. Presented with this evidence, the jury reasonably found that the defendant constructively possessed the firearm and ammunition.
Judgments affirmed.