Opinion
No. 15–P–1498.
10-05-2016
COMMONWEALTH v. Larry J. SHAW.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions of two counts of unlawful possession of a firearm and two counts of unlawful possession of a firearm by a person previously convicted of a violent crime or drug offense, the defendant claims prejudicial error in the refusal by the trial judge to administer the cautionary instruction prescribed in certain circumstances by Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448 (2004). He also claims that omission of an instruction on general intent created a substantial risk of a miscarriage of justice. We discern no cause to disturb the judgments, and affirm.
1. DiGiambattista instruction. Passing the question whether the judge erred in his denial of the defendant's request that he administer the iGiambattista instruction, we discern no prejudice. The sole contested issue on the charges of unlawful possession of a firearm was that of intent. Contrary to the defendant's contention on appeal, the jury's consideration and resolution of the question of the defendant's intent to exercise control over the firearms did not rest on the difference between the defendant's version of his statement to police and the version offered by Trooper Wallis. The defendant acknowledged that he became aware of the presence of the firearms on the morning of Sunday, August 12, 2012, and that he knowingly left the firearms in place until police executed the search warrant two days later. He testified that he did not call police to report the guns because he “[didn't] want to get anybody in trouble,” and that he thought about throwing them out in the trash but decided not to do so. He also testified that he called Lamont Collins and asked him to come to retrieve the guns, and threatened to (but in fact did not) call the police if Collins did not retrieve them. In these circumstances, where the defendant over the course of two days identified but elected not to execute at least two independent methods to remove the guns from his apartment, despite knowing of their presence, even if the jury accepted his denial of ownership, the evidence established conclusively that he not only had the ability to control, but in fact exercised control over them during that period. It therefore is immaterial to the question of his intent to exercise control over the guns whether his statement to police included the comment that he was “holding them for someone.”
Though the Commonwealth has conceded the defendant's claim of error, we are not bound by the concession. See Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010). Our view of the case obviates any need for us to consider whether the DiGiambattista instruction is required in circumstances such as those in the present case, where the custodial interrogation in question occurred in the defendant's apartment rather than in an interrogation room at the police station.
The defendant conceded that the guns were firearms, that the defendant knew they were in his apartment, and that he had the ability to control them.
2. Jury instruction. For similar reasons, we discern no cause to disturb the judgments in the defendant's claim that the judge erred in omitting instruction on general intent. The defendant raised no objection to the instruction as given, so we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Sann Than, 442 Mass. 748, 752 (2004). The defendant's argument in support of his claim of error is far from clear. He suggests that instruction on general intent would have directed the jury to consider whether the defendant intended the act to occur which constitutes the offense. However, in the circumstances of this case, no particular act was required to establish the defendant's specific intent to exercise dominion or control over the guns stored in his apartment; indeed, as we have observed, the defendant's knowledge of their presence and his control over the place where they were stored, coupled with his admitted ability to remove them and his decision not to do so, established his dominion or control over them. Moreover, as the Commonwealth observes in its brief, such an instruction would have suggested to the jury that they could convict the defendant even if he lacked the specific intent to exercise control over them. The instruction, as administered, correctly stated the law. See id. at 752–755. There was no error and, accordingly, no substantial risk of a miscarriage of justice.
Judgments affirmed.