Opinion
10-P-951
08-09-2011
COMMONWEALTH v. JAMES 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
After a jury trial, the defendant was convicted of unlawful possession of a firearm, subsequent offense, in violation of G. L. c. 269, § 10(d). On appeal, he challenges the judge's instructions to the jury and his sentence as a third offender. We affirm.
The defendant was acquitted of unlawful possession of ammunition, unlawful possession of a loaded firearm, and aggravated assault and battery by means of a dangerous weapon.
Background. The Commonwealth presented evidence that Boston police officer Kirk Merricks responded to a call 'for a [breaking and entering] in progress' in the 'Bromley-Heath Projects' area of Boston, at approximately 3:30 A. M. on September 20, 2007. As he got out of his police cruiser, Merricks heard 'two to three' gun shots. He started to run in the direction of the shots and, at the end of the street, he saw 'two suspects running up [the intersecting] street'; one, whom he identified as the defendant, was about five feet behind the other, chasing him.
The officer, following, chased them around a corner and discovered one of the two standing with one hand in the air and the other hand holding up his sweatshirt. The defendant, with his hand at his waist, was facing that man. Concerned that the defendant was holding the gun he had heard fired minutes before, Merricks, with his weapon drawn, yelled, 'Boston Police, freeze.' In response, the defendant 'took off running,' with the officer in pursuit, continuing to yell 'Boston Police, freeze.' The two traveled through alleyways and at one point, with the defendant ahead of him and around a corner, Merricks heard a metal object, that he believed was a gun, hit the side of a building. Rounding the corner after the defendant, he encountered him at the edge of a courtyard; the officer again ordered him to stop, and at this point, the defendant complied. Another police officer later retrieved a gun from a nearby bench. After placing the defendant under arrest, Merricks responded to an ambulance in another location, where he identified the first suspect, one Oscar Ramos, who was then being treated for a gunshot wound.
The defendant's mother testified that, earlier in the night at approximately 3:00 A. M., she and other family members had been awakened in her apartment on Heath Street by loud banging on her front door. Concerned that someone was trying to come into her apartment, she called to the defendant, who went to the door and told the person to get away from the door. The individual, who sounded intoxicated, continued to kick at the door, yelling about his phone, swearing, and speaking in Spanish.
When the family was unable to persuade the man to go away, other family members called the police. The noise continued and, eventually, part of the front doorknob fell off. The defendant started out the back door in his underwear, but, at his brother's suggestion, he went upstairs and came back with 'a pair of pants and some shoes.' Later, despite the pleas of his mother and sister to stay in the apartment, the defendant went out the back door.
Shortly afterwards, the defendant's mother heard him, outside her front door, say 'Get away from my mother's door.' She then heard what she recognized as her screen door slam shut, as if the would-be intruder had let it go. Some time after that, she heard two or three gun shots.
The defendant argues three issues on appeal which we address seriatim.
1. Jury instruction on necessity. The defendant objects first to the fact that the judge did not instruct the jury on the defense of necessity. This defense is available only under very limited circumstances. Commonwealth v. O'Kane, 53 Mass. App. Ct. 466, 469 (2001). 'It can only be raised if each of the following conditions is met: '(1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue." Commonwealth v. Kendall, 451 Mass. 10, 13-14 (2008), quoting from Commonwealth v. Hood, 389 Mass. 581, 591 (1983). In determining whether an instruction is necessary, the evidence must be viewed 'in the light most favorable to the defendant.' Commonwealth v. Power-Koch, 69 Mass. App. Ct. 735, 739 (2007). However, 'the defendant must produce some evidence establishing each element of the defense.' Ibid.
At a conference before the jury were charged, the defendant requested that the judge instruct the jury on the defenses of necessity, duress, and self-defense. Over the Commonwealth's objection, the judge agreed to give a self-defense instruction. However, she stated that she was 'not inclined at [that] point to give necessity or duress, in particular the duress. All right, anything else?' Defense counsel responded, 'No, your Honor.' At the end of the charge, he told the judge that he was 'content.' Were we to find error, we would decide only whether failure to give the instruction created a substantial risk of a miscarriage of justice.
In this case, the defendant cannot meet the first condition, that is, he cannot show that it was necessary for him to carry a gun to confront a drunken man who had been banging on his mother's door at 3:00 A. M. The defendant speculates that 'the jury could have found that he permissibly took the firearm from an assailant.' However, there is no evidence, from any source, that anything like that scenario took place.
Neither the defendant, nor the other man, eventually identified as Oscar Ramos, testified at trial.
In addition even if, viewing the evidence in the light most favorable to the defendant, such speculation were permissible, and we do not hold that it would be, the defendant cannot show that, after he was confronted by Merricks, it was necessary for him to run away from the police officer, tossing the gun away, rather than surrender it to the officer's lawful authority. Cf. Commonwealth v. Iglesia, 403 Mass. 132, 133-134 (1988) (evidence sufficient to raise the issue of a necessity defense where the defendant testified that he 'wrested the gun from [an assailant] and went 'immediately' and 'directly' to the Worcester police station and turned in the gun'). See Commonwealth v. Power-Koch, supra ('In order to avail himself of the defense, the defendant must establish that the danger was imminent, and that he 'acted out of necessity at all times that he . . . engaged in the unlawful conduct''), quoting from Commonwealth v. Leno, 415 Mass. 835, 839-840 (1993) (emphasis supplied). We see no error in the judge's refusal to instruct the jury on the defense of necessity.
The defendant's argument that the gun was 'inoperable' because it was 'jammed' at the time that he ran away from the police officer is not persuasive. The question of whether the gun was a firearm was a matter for the jury; the defendant did not argue at trial that it was not. Nor, on appeal, does he argue that the evidence was insufficient to prove that it was. Finally, he cites no authority for the proposition that a gun that is 'jammed' does not meet the statutory definition of a firearm.
2. Self-defense as applied to the firearm charge; Second Amendment claim. During jury deliberations, the jury sent a note to the judge inquiring whether self-defense was a defense to the firearm charge. Over the defendant's objection, the judge responded that it was not. For the first time on appeal, the defendant argues that language from the United States Supreme Court's decision in McDonald v. Chicago, 130 S.Ct. 3020 (2010), quoting from District of Columbia v. Heller, 554 U.S. 570 (2008), upholds his right to possess a firearm in self-defense.
The Commonwealth's argument that the defendant's constitutional challenge cannot be raised here for the first time is answered by the Supreme Judicial Court's holding in Commonwealth v. Powell, 459 Mass. 572, 587 (2011) ('Because the Second Amendment issue now presented by the defendant was not available to him until after McDonald was decided, which was long after his trial, we conclude that his failure to raise the issue during his trial does not preclude him from raising it here'), citing McDonald v. Chicago, 130 S.Ct. 3020 (2010).
The defendant's objection at the time was that, if he were being attacked by someone with a gun, taking the gun away and then possessing it briefly would not violate the law. While that is a correct statement of the law, at least as to the defense of necessity, rather than self-defense, for the reasons described above, it does not apply to the facts of this case.
'Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. 554 U.S. at [599]. . . . [S]ee also id. at [628] (stating that the 'inherent right of self-defense has been central to the Second Amendment right').' McDonald, supra at 3036 (emphasis original).
The issue in McDonald was the validity of city ordinances effectively banning handgun possession by almost all private citizens. That case cannot reasonably be read to apply to the defendant, a convicted felon with prior convictions for carrying a firearm. See Heller, supra at 626 ('[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill'). To the extent that the defendant's argument is that McDonald guarantees his right to self-defense in the particular circumstances of this case, he confounds self-defense with his argument for a necessity defense, addressed above.
We do not mean to suggest that the defendant would have a successful Second Amendment argument were he not a convicted felon.
3. Sentencing. The indictment charging the defendant with carrying a firearm was captioned, 'C. 269, § 10(a) Second Offense.' The indictment itself listed convictions for three prior offenses of 'possession of a firearm' and concluded, 'and this is therefore a second and subsequent such offense.' The defendant's final argument is that the caption controls the substance of the indictment; that is, because of the caption, he was indicted only for the second offense; proceeding and sentencing him on a third offense, he maintains 'improperly and materially changed the work of the grand jury to [his] detriment.'
'[A]rt. 12 of the Massachusetts Declaration of Rights . . . provides '[n]o subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him . . . .' In order to comply with the constitutional mandate, an indictment must contain 'a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.' Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). A complaint or indictment will not be dismissed, however, 'if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him." Commonwealth v. Fernandes, 430 Mass. 517, 519-520 (1999), quoting from Commonwealth v. Green, 399 Mass. 565, 566 (1987). When the caption of the indictment differs from the language of the body of the indictment, 'it is the language of the body of the indictment that controls.' Commonwealth v. McArthur, 55 Mass. App. Ct. 597-598 (2002). Here, the language of the body of the indictment clearly put the defendant on notice of three specific prior offenses, listed with dates, courts, and docket numbers. We see no error.
Judgment affirmed.
By the Court (Wolohojian, Milkey & Hanlon, JJ.),