Opinion
18-P-1629
10-01-2019
COMMONWEALTH v. Canez TOUT-PUISSANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of two counts of unlawful possession of a firearm and two counts of unlawful possession of ammunition. On appeal, he claims he was deprived of effective assistance of counsel, the Commonwealth failed to prove his coventurer was not licensed to carry a firearm and to possess ammunition, his indictment was not supported with sufficient evidence, and his second conviction for possession of ammunition violated the double jeopardy clause. We affirm.
The defendant was acquitted on the charge of possession of a loaded firearm.
1. Ineffective assistance. The defendant claims that his counsel was ineffective by failing to raise a pretrial defense that his coventurer possessed a firearms license. See Mass. R. Crim. P. 14 (b) (3), as amended, 442 Mass. 1518 (2004). As a result, the defendant maintains "the underlying crime was never proven" since the element of lack of license was not found by the jury. We disagree.
The initial problem with the defendant's claim is that he has raised it for the first time on direct appeal. "A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by a trial judge" (citations omitted). Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574, 875 N.E.2d 498 (2007). See Commonwealth v. Zinser, 446 Mass. 807, 810, 847 N.E.2d 1095 (2006). Without an affidavit or testimony from trial counsel, or findings from the trial judge, we cannot state with a sufficient level of confidence whether the claimed deficiency was a matter of strategy, let alone a manifestly unreasonable one. At the very least, the factual basis necessary for resolving this question does not appear indisputably on the trial record. Id. at 811, 847 N.E.2d 1095.
In any event, we need not resolve whether counsel's performance was constitutionally deficient in terms of the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), because the defendant has failed to demonstrate that he was deprived of an otherwise available and substantial ground of defense. Id. The prosecution presented two theories of the case, one of which is unaffected by the asserted claims of ineffective assistance of counsel. In other words, while the Commonwealth bears the ultimate burden to prove lack of license (once raised by the defendant) in a joint venture scenario, see Commonwealth v. Humphries, 465 Mass. 762, 764, 991 N.E.2d 652 (2013), whether the defendant was licensed remains an affirmative defense in actual or constructive possession cases. See Commonwealth v. Gouse, 461 Mass. 787, 802-803, 965 N.E.2d 774 (2012). Because the defendant's conviction was supported by compelling evidence of constructive possession, had counsel claimed his coventurer was licensed, which in turn would have shifted the burden to the Commonwealth to prove otherwise, see Humphries, supra, the outcome would remain unchanged.
The Commonwealth also presented a theory of constructive possession. Although the defendant claims that the "most likely" basis for his conviction was as a joint venturer, his claim is unadorned with record support.
The defendant also claims that making license an affirmative defense violates the due process clause, but the Supreme Judicial Court has held otherwise. See Commonwealth v. Gouse, 461 Mass. 787, 804, 965 N.E.2d 774 (2012) ; Commonwealth v. Jones, 372 Mass. 403, 406, 361 N.E.2d 1308 (1977). Whether there exists a State-wide licensing database which could affect the affirmative nature of the defense is not apparent on the record in this case. In any event, "lack of license" is not an element of the offense the Commonwealth need prove.
The evidence at trial showed that the defendant not only arranged the sale and directed the undercover officer to the location of the sale, but he also arranged to have an associate ready with the guns at the appointed time and negotiated the price. The defendant was present and active throughout the entirety of the sale. In addition, the defendant was very concerned with surveillance prior to the arranged meeting, extending a less than two mile drive into a fifteen to twenty minute journey, which also demonstrated his consciousness of guilt.
2. The indictment. The defendant also claims that his motion to dismiss the unlawful possession indictments was improperly denied because the grand jury did not hear any evidence that the coventurer lacked a valid license. We disagree. As set out above, lack of license is not an element of unlawful possession of a firearm. See Gouse, 461 Mass. at 804, 965 N.E.2d 774. This is true even in a joint venture prosecution. See Humphries, 465 Mass. at 770, 991 N.E.2d 652. Although a defendant need only raise the defense and does not have an initial burden to produce evidence in the joint venture context, lack of license is still not an element. Id. at 770-771, 991 N.E.2d 652. As such, the Commonwealth had no burden to provide the grand jury with evidence that the defendant's accomplice was unlicensed to establish probable cause to support the indictment. The motion to dismiss was properly denied.
The Supreme Judicial Court's recent plurality opinion in Commonwealth v. Fernandes, 483 Mass. 1, 130 N.E.3d 696 (2019), does not require a different conclusion.
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3. Double jeopardy. Finally, the defendant claims that his conviction on the second count of unlawful possession of ammunition violates the double jeopardy clause because ammunition is plural. We disagree.
When a defendant is challenging multiple convictions under a single statute, the court examines the statute to discern what unit of prosecution the Legislature intended to be a punishable act. Commonwealth v. Bolden, 470 Mass. 274, 277, 21 N.E.3d 150 (2014). Determining whether two offenses are the same for double jeopardy is a matter of statutory interpretation. Commonwealth v. Horne, 466 Mass. 440, 449-450, 995 N.E.2d 773 (2013).
Here, contrary to the defendant's claim, the plain text of G. L. c. 269, § 10 (h ), demonstrates that the unit of prosecution is per cartridge unit. Section 10 (h ) provides that "[w]hoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of [ G. L. c. 140, § 129C ] shall be punished." The term "ammunition" has been defined by the Legislature as "cartridges or cartridge cases." G. L. c. 140, § 121. The defendant's claim is without merit. See Commonwealth v. Loadholt, 460 Mass. 723, 724 n.3, 954 N.E.2d 1128 (2011) (affirming conviction on two indictments charging unlawful possession of ammunition).
Judgments affirmed.