Opinion
10-P-2150
03-16-2012
COMMONWEALTH v. JERMAINE RODRIGUEZ-SMITH.
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
On July 9, 2010, at the close of a jury trial, the defendant was found guilty on one count each of unlawful possession of a firearm, G. L. c. 269, § 10(a); unlawful possession of a loaded firearm, G. L. c. 269, § 10(n); unlawful possession of ammunition, G. L. c. 269, § 10(h); unlawful possession of a large capacity feeding device, G. L. c. 269, § 10(m), and resisting arrest, G. L. c. 268, § 32B. The defendant filed a timely notice of appeal from the convictions.
The defendant argues for reversal on the grounds that (1) the prosecutor, in her closing argument, misstated the evidence in a way that significantly undermined the defendant's credibility, (2) the defendant's conviction for unlawful possession of ammunition was duplicative of his conviction for unlawful possession of a loaded firearm, and (3) the Commonwealth failed to present sufficient evidence to prove that the defendant did not possess a firearm identification card, and thus violated his right to due process under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We affirm the judgments.
Discussion. The defendant first argues that the prosecutor misstated the evidence when she stated in her closing that the defendant 'wait[ed]' until 'the next day' after his release from jail to go to the hospital, despite the fact that the hospital 'is open 24 hours a day.' The defendant argues that these statements severely undermined the defendant's credibility, creating prejudicial error.
The full transcript of the objected to comments is as follows: 'But the next day he goes to the hospital. Now, if he was in such pain, wouldn't he go right away? The hospital is open 24 hours a day, but he waits. He goes the next day and he complains, and you will see it on the medical reports, of neck pain.'
'Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom.' Commonwealth v. Guy, 441 Mass. 96, 110 (2004). However, inferences drawn by the prosecutor in a closing argument 'need not be necessary and inescapable, only reasonable and possible.' Commonwealth v. Jones, 432 Mass. 623, 628 (2000). Here, no error occurred because the prosecutor's statement regarding the timing of the defendant's hospital visit was a fair and reasonable inference to be drawn from the evidence and was not improper.
In this case, the evidence pertaining to the timing of the defendant's hospital visit is unclear at best. There are two hospital discharge forms contained in the record, each containing descriptions of a different set of symptoms. The first discharge form is for the treatment of facial abrasions and contusions and is electronically dated October 18, but the signature of the treating physician is dated October 19. The second form is for the treatment of neck pain and is electronically dated October 19, and the signature of the treating physician is dated October 19. On direct examination of Officer Tyler, defense counsel asked: 'Do you know what time [the defendant] was released on 10/18?' Although Officer Tyler was unable to give a conclusive answer as to the time of the defendant's release from jail, the entire line of questioning suggested that the defendant was released on October 18. In contrast to the suggestion that the defendant left jail on October 18 is the defendant's statement on direct examination that he was released from jail the morning after the day of his arrest, implying that he spent the night in jail and was released on October 19. The defendant testified that after his release he went directly to the hospital.
The above pieces of evidence contradict each other in numerous ways, and they give rise to several possible alternative scenarios. One such scenario that can be reasonably inferred is that the defendant waited a day before going to the hospital for treatment of his neck pain, given those portions of the evidence suggesting that the defendant was released on October 18, and treated on October 19. The inference may not have been inescapable, but it was certainly reasonable. See Jones, 432 Mass. at 628. The two discharge forms had been entered in evidence along with the defendant's testimony and that of Officer Tyler, and the jury was free to agree or disagree with the prosecutor's reasonable interpretation of the evidence presented. The prosecutor did not exceed the bounds of proper argument, and there was therefore no error.
With regard to the defendant's second claim, we conclude that his conviction for unlawful possession of ammunition was not duplicative of his conviction for unlawful possession of a loaded firearm. '[A] defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.' Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). An unlawful ammunition possession conviction is duplicative if the only ammunition the defendant possessed was contained within the clip, cylinder, or chamber of the handgun. See Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011). Such is not the case here, because an additional round of .40 caliber ammunition was found in a location separate from the handgun, and the Commonwealth permissibly argued that the defendant constructively possessed the additional round. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 246 (2011). The two convictions were therefore not duplicative, as they were based on distinct criminal acts as required by Vick, supra at 431-432.
Finally, the defendant argues that the statutory presumption created by G. L. c. 278, § 7, that a defendant does not possess a license to carry a firearm unless he can prove that such a license exists, places an unconstitutional burden on the defendant in the wake of the Supreme Court's decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and McDonald v. Chicago, 130 S. Ct. 3020 (2010). We reject this argument based on the Supreme Judicial Court's recent affirmance of the constitutionality of the presumption: 'Nothing in the McDonald and Heller decisions has altered or abrogated the state of the law concerning the statutory presumption set forth in G. L. c. 278, § 7.' Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011). Therefore, the fact remains that 'in prosecutions under G. L. c. 269, § 10 (a) and (h), the Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant, under G. L. c. 278, § 7, to come forward with such evidence.' Commonwealth v. Powell, 459 Mass. 572, 582 (2011).
Judgments affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),