Opinion
19-P-799
08-06-2020
COMMONWEALTH v. JOSE SANTOS (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from their convictions, after a District Court jury trial, of unlawfully carrying a firearm. G. L. c. 269, § 10 (a). On appeal, their sole contention is that there was insufficient evidence that they constructively possessed the firearm, which was found under the front passenger seat of the car in which they were stopped. Considering the evidence and inferences therefrom in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and keeping in mind that "[a]n inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable," Commonwealth v. Beckett, 373 Mass. 329, 341 (1977), we affirm.
Background. The jury could have found that early in the morning of November 30, 2014, while it was still dark, Lawrence Police Officer Timothy Dube, in a marked cruiser, pulled up behind a car that was stopped in the middle of a small road in Lawrence. The car's headlights were off, and it was idling with two men inside, one in the driver's seat and the other in the front passenger seat. As Dube ran the license plate number, the car began to drive away, with no prompting from Dube. Dube followed in his cruiser; the car failed to put its headlights on for about 100 yards, and it made a left turn without signaling. Based on these moving violations, Dube activated his blue lights and siren.
As the car pulled over, Dube observed the operator, later identified as the defendant, Jose Santos, "leaning . . . towards the right side of the car," with his "head disappear[ing] out of view a couple of times." His movements were "not something normal." Dube also observed the passenger, later identified as the defendant, Anderson Garcia, "bending over," "leaning forward," and "moving towards a downward position in front of him," so that at most the back of his head was just visible. Dube could "clearly" see the defendants' head movements, because he had his blue lights and spotlights on. He observed both defendants "moving about on the right side of the vehicle," "doing something over there," "focusing on the passenger side."
Dube also testified that he noticed some movements by the defendants even before he activated his blue lights. Although the point is in no way essential, the jury could reasonably have inferred that the defendants, who drove away unprompted as soon as Dube pulled up behind their car in his marked cruiser, and who could have seen the cruiser in their rear-view mirror, became aware of its presence before Dube activated his blue lights.
Concerned for his own safety, Dube radioed for back-up. Once another officer arrived, Dube ordered the defendants out of the car; they were pat frisked and brought to the area behind the car. Dube then returned to the passenger side, leaned into the car through the open door, illuminated the interior with his flashlight, and "clearly" saw the brown handle of a firearm "underneath the [passenger's] seat."
Neither defendant claimed to have a firearm license and, thus, licensure was not an issue at trial. See Commonwealth v. Humphries, 465 Mass. 762, 770-771 (2013).
Inside the glove box, Dube found approximately $2,000 "strewn about" as if it had been "stuffed in." Dube acknowledged that its appearance was such that it "could have" been picked up off the floor and stuffed inside. Santos told Dube that his uncle had asked him to collect the money. Dube believed Santos and gave the money back to him. The car itself was not registered to either defendant.
Discussion. The Commonwealth proceeded on a theory of constructive possession. This required proof beyond a reasonable doubt that the defendants had "knowledge coupled with the ability and intention to exercise dominion and control" over the firearm. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). "Presence alone cannot show the requisite knowledge, power, or intention to exercise control over the firearm, but presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.'" Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 800 (2019). Possession may be established by reasonable inferences drawn from circumstantial evidence, see Commonwealth v. La Perle, 19 Mass. App. Ct. 424, 426 (1985), and in the constructive possession context, as elsewhere, "[w]hether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense." Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990). "Possession need not be exclusive but may be joint, and such joint possession may be proved by circumstantial evidence." Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974). See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 834 (2018).
This case may be resolved by focusing on whether the evidence was sufficient for the jury to find that the defendants' movements were part of an effort to conceal the firearm by placing it in the position under the seat where Dube found it. If the jury could so find, they could conclude from that fact that the defendants knew of the firearm's presence and had the ability and intention to exercise dominion and control over it. See Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995) (attempt to conceal contraband permits inference of unlawful possession). That would be true regardless of whether the firearm, when Dube found it, was in his "plain sight," or would have been in the defendants' plain sight from where they sat or when they bent over toward the lower passenger area.
The evidence, although not overwhelming, was sufficient. The defendants' suspicious and unusual movements directed to the lower front passenger area, and "doing something" there as they were being pulled over by Dube, supported the inference that they were attempting to conceal the firearm.
This case is unlike Commonwealth v. Brown, 401 Mass. 745 (1988), on which the defendants rely. There, after an officer activated his cruiser's lights to pull over a rental car, he observed the defendant (who was driving) and a passenger "bend over in unison." Id. at 746. Once the car stopped and its occupants were removed, two firearms were found under the front passenger seat. Id. at 747. The court held that the defendant's bending over furnished insufficient evidence of his own personal knowledge, because the firearms "were under the passenger seat, which was occupied by a person other than the defendant." Id. at 748. The Brown court relied in part on Commonwealth v. Almeida, 381 Mass. 420, 422 (1980), where a defendant sitting in the driver's seat of a borrowed car leaned toward the door as officers approached; the court held that this motion furnished insufficient evidence that the defendant knew of a firearm in the closed seat console. Id. at 421-422.
The defendants also rely on United States v. Blue, 957 F.2d 106, 108 (4th Cir. 1992) (police testimony that passenger's shoulder dipped as if he were reaching under seat with his right hand was "just barely" insufficient to prove his constructive possession of firearm found under seat).
Here, in contrast, the officer saw both the driver and the passenger leaning down and toward the passenger floor area, where the firearm was found. The driver's head disappeared from view several times -- movements that Dube characterized as "not something normal." Both the driver and passenger were "focusing on" and "doing something" in the passenger area. These observations reasonably supported an inference that both defendants were attempting to conceal the firearm under the passenger seat. Given these actions in relation to the firearm itself, it is immaterial that (as the defendants argue) the car was borrowed and that there was no evidence of how long they had been in it, of any other particular connection they had to it, or of other acts or statements suggesting their consciousness of guilt.
The defendants also argue that the evidence they possessed the firearm was insufficient because their movements were equally consistent with an effort to pick up the cash from the car's floor and conceal it in the glove compartment. We are not persuaded, however, that those inferences are equally plausible. The defendants' argument requires the critical assumption, for which they cite no evidence or reasonable explanation, that the money was on the floor in the first place. They also fail to explain why they both would have felt an urgent need to hide the money, given that it was not illegal to possess and that Santos was willing and able to offer a sufficiently plausible explanation for possessing it -- he had been collecting it on behalf of his uncle -- that Dube allowed him to keep it.
Even if they were, the cases the defendants rely upon are unavailing. See Commonwealth v. McCauliff, 461 Mass. 635, 642 n.10 (2012); Commonwealth v. Wallis, 440 Mass. 589, 596 n.8 (2003); Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). The defendants' arguments are not entirely clear, but those cases discuss situations in which a finder of fact must choose between two equally reasonable inferences, one of which favors the defendant and the other the Commonwealth. Here, no such choice was necessary; the jury could reasonably have inferred that the defendants were attempting to conceal both the firearm and the money. Dube acknowledged on cross-examination that it was possible the money had fallen out and had been picked up off the floor and stuffed in the glove compartment.
The jury could also have inferred that, had the money actually started out on the floor, a more logical way to conceal it in a hurry would have been to stuff it under the passenger seat, rather than picking it up and stuffing it in the glove compartment. This would particularly be so once the defendants became aware that Dube was pulling their car over. At that point they could anticipate that the driver (Santos) would be asked for the car's registration, that he would try to retrieve it from the glove compartment, and he would have to open the glove compartment in the officer's presence, thereby revealing the money stuffed into it and strewn about its interior. The jury could reasonably infer that the glove compartment was not the best available hiding place for the money, and thus that the defendants' movements were less likely to have reflected an effort to hide the money in the glove compartment than an effort to hide the firearm under the seat.
Indeed, on cross-examination by counsel for Garcia, Dube agreed that "most operators would know you're going to be asking them for license and registration when they're pulled over," and that it was "possible that [Santos] was looking for his registration in the glove compartment" as he was pulling over.
Judgments affirmed.
By the Court (Blake, Sacks & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 6, 2020.