Opinion
No. 12–P–1462.
2013-11-1
COMMONWEALTH v. Nicholas SANTIAGO.
By the Court (COHEN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial by jury, the defendant was convicted of one count of resisting arrest, two counts of carrying a firearm without a license, one count of possession of ammunition, two counts of carrying a loaded firearm, and one count of possession of a class B substance
. The defendant contends that (1) the judge erred by failing to instruct sua sponte on self-defense with respect to the charge of resisting arrest, (2) improper expert testimony on an “ultimate issue” was introduced, and (3) there was insufficient evidence to prove beyond a reasonable doubt that the defendant had possessed either the firearms, ammunition or the class B substance. We affirm.
Additionally, the defendant was convicted of negligent operation of a motor vehicle, failure to stop for police, and disorderly conduct. The defendant does not appeal these convictions. He was also found responsible for several civil infractions.
1. Self-defense instruction. The defendant did not request a self-defense instruction at trial. We therefore “review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice.” Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). There was no error. The defense did not argue self-defense. Rather, the defendant denied that he resisted at all. “[I]f the judge had given such an instruction on [his] own, [he] might well have interfered with the defendant['s] right to present [his] chosen defenses.” Commonwealth v. Norris, 462 Mass. 131, 144 (2012). A judge is not required to give a sua sponte instruction on a theory upon which the defendant did not rely. Commonwealth v. Souza, 428 Mass. 478, 486 (1998). “The consequences of trial tactics may not be converted after conviction into alleged errors by the judge.” Commonwealth v. Roderiques, 462 Mass. 415, 428 (2012) (citation omitted). 2. Ultimate issue. The defendant contends that it was error for the Commonwealth's expert to testify that the firearms and ammunition seized were firearms and ammunition within the meaning of the applicable statutes.
The general rule is that an expert opinion may touch on an ultimate issue before the jury, but that an expert may not express an opinion as to the guilt or innocence of the defendant. Commonwealth v. Acosta, 81 Mass.App.Ct. 836, 842 n. 10 (2012). Cf. Commonwealth v. Jones, 464 Mass 16, 17 n. 1 (2012) (same, lay opinion). Whether a firearm (or ammunition) satisfies the statutory definition is an ultimate issue of fact. Commonwealth v. Hollister, 75 Mass.App.Ct. 729, 730 (2009). The expert properly testified to the length of the barrel and the operability of the firearms found at the scene, as well as the characteristics of the ammunition.
For example, the expert was asked:
Q: So based on your training, experience and your examination of this weapon, do you have an opinion of whether this is a—this is firearm and ammunition as defined under [Massachusetts] General Laws?
A: Yes, ma‘am, it is.
In these circumstances, the additional expert testimony did not intrude upon the jury's “vital function,” Commonwealth v. Ianello, 401 Mass. 197, 202 (1987) and did not constitute a commentary on guilt or innocence. See Mass. G. Evid. § 704 (2013) (legal questions, as to which testimony is not permitted, should be distinguished from factual conclusions, as to which testimony is proper; “the line between a conclusion of law and an ultimate issue of fact is sometimes blurred”). Even if the admission of the testimony exceeded permissible bounds, the expert's testimony was explanatory, there was no objection, and “the conclusion was not significantly more prejudicial than the explanation and did not create a substantial risk of a miscarriage of justice.” Commonwealth v. Arias, 55 Mass.App.Ct. 782, 788 (2002).
The fact that the firearms and ammunition met the statutory definition was conceded at trial. Defense counsel so stated in the course of arguments on motions for required finding. No argument was made to the jury that the guns were not firearms, or that the ammunition was not ammunition.
3. Substantial evidence. The defendant maintains that there was insufficient evidence of possession of the drugs, firearms and ammunition. We review the sufficiency of the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The sufficiency question is governed in all material respects by Commonwealth v. Jefferson, 461 Mass. 821, 825 (2012). The defendant was the driver of the car, he fled in the car and was pursued by the police, the police viewed objects being thrown from both sides of the car, and drugs, guns, and ammunition were found in the locations where the objects were thrown. Although the defendant denied knowledge of the contraband, the jury were permitted to conclude that the flight to avoid the police evidenced consciousness of guilt, and that the defendant fled because he knew the contraband was in the car and sought an opportunity to get rid of it. Id. at 826–827.
The judge instructed the jury on actual, joint, and constructive possession as well as joint venture. As in Jefferson, supra, the evidence “would also permit a rational jury to conclude beyond a reasonable doubt that [the defendant] knowingly had joint actual or constructive possession or control of the firearm [drugs, and ammunition] in the vehicle.” Id. at 827.
With respect to joint venture, “it is not necessary that the Commonwealth prove that a defendant had actual or constructive possession of a firearm, but only that such a defendant was accessory to another identified defendant in possessing a firearm.” Commonwealth v. Humphries, 465 Mass. 762, 768 (2013) (citation and quotations omitted).
For purposes of constructive possession, “[i]t is settled ... that the requisite knowledge, power and intent to exercise control over a firearm may be shown by ‘presence, supplemented by other incriminating evidence.’ “ Commonwealth v. Valentin, 55 Mass.App.Ct. 667, 671 (2002), quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977).
Flight permitted the inference of knowledge, control, and assistance. The evidence was sufficient.
“Presence at the scene of the crime, with knowledge that the other intends to commit it and a willingness to help if needed, is but one way to make out the involvement necessary to constitute one a joint venturer.” Commonwealth v. Echavarria, 428 Mass. 593, 598 (1998), citing Commonwealth v. Ortiz, 424 Mass. 853 (1997).
Judgments affirmed.