Opinion
16-P-372
08-02-2017
COMMONWEALTH v. Ronald J. WATTS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ronald J. Watts, appeals from his convictions of carrying a firearm without a license, possession of a firearm with a defaced serial number while in the commission of a felony, and carrying a loaded firearm. He claims (1) there is insufficient evidence to support the Commonwealth's constructive possession theory, (2) the trial judge improperly allowed the prosecution to present inadmissible and prejudicial evidence to the jury, and (3) the trial judge erred in denying the defendant's motion to supress. For the reasons set forth below, we affirm.
Background. The jury were warranted in finding the following facts. Around 1:00 A.M. on April 18, 2015, Boston police Officers Edward Dervan and James O'Loughlin pulled over a black Chevrolet Malibu for two traffic violations. The defendant was in the driver's seat, Jordan Creech, whose mother owned the vehicle, was in the front passenger seat, and Jabree Daugherty was in the back passenger seat.
During the stop, Officer Dervan noticed a firearm in plain view on the floor of the vehicle in the backseat area, near Daugherty. He communicated this to Officer O'Loughlin, who asked Daugherty to exit the vehicle before handcuffing him for officer safety. Officers Thomas Bernier, Michael Paradis, Taylor Small, and Frank Femino arrived on the scene. Officer Bernier asked Creech to exit the vehicle, handcuffed him, and recovered a gun from his waistband. Officers Small and Femino asked the defendant to exit the vehicle and also placed him in handcuffs for their safety. Officer Paradis then conducted a search of the driver's seat area and located a firearm, barrel-down, between the console and the driver's seat. The officers placed the defendant, Daugherty, and Creech under arrest. Officer Dervan then inventoried the contents of the vehicle pursuant to police department policy. During this process, he discovered two backpacks in the backseat, one of which contained a prescription bottle of Tylenol with the defendant's name on it and two small bags of marijuana.
Discussion. 1. Constructive possession. The defendant argues that the evidence was insufficient to prove he possessed the firearm. When evaluating the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth to determine if "there was enough evidence that could have satisfied a rational trier of fact of each element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-378 (1979). "In order to sustain a conviction for unlawful possession of a firearm, the Commonwealth must prove beyond a reasonable doubt that the defendant actually or constructively possessed the firearm." Commonwealth v. Hubbard, 69 Mass. App. Ct. 232, 237 (2007). In this case the Commonwealth relied on the theory of constructive possession as to the defendant. To prove constructive possession, the prosecution must show "knowledge [of the firearm] coupled with the ability and intention to exercise dominion and control" over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). Here, presence in a vehicle where a firearm is present is not enough to show the knowledge and intent necessary to prove constructive possession. Commonwealth v. Albano, 373 Mass. 132, 134 (1977). However, presence, coupled with "other incriminating evidence, ‘will service to tip the scale in favor of sufficiency.’ " Ibid., quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). See Commonwealth v. Romero, 464 Mass. 648, 654-655 (2013) (discussing "plus factors" that tend to show constructive possession).
The jury were instructed on the theory of individual possession (actual or constructive) and were not instructed on aiding and abetting. See Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009).
In this case, Officer Paradis discovered the weapon almost immediately upon commencing his search of the driver's side area of the vehicle. He described the firearm as being just stuck between the seat and console, "as if [he] was holding the firearm by the handle." In addition, the Commonwealth presented other evidence pointing to the defendant's knowledge and intent necessary to establish constructive possession: the gun was loaded, with one bullet in the chamber, the defendant had other personal possessions in the vehicle, and the vehicle's other two occupants each were in possession of a firearm. This is unlike the case of Commonwealth v. Snow, 76 Mass. App. Ct. 116 (2010), where this court concluded that constructive possession was not established. In Snow, the firearm was stuck between the seat and center console of the vehicle such that "the troopers were unable to see the weapon at any point before beginning a thorough search." Id. at 121. There, the only "plus factor," aside from the presence in the vehicle, was the defendant's proximity to the firearm. Id. at 121-122. Here, the multiple "plus factors," viewed as a whole and in the light most favorable to the Commonwealth, support the inference that the defendant constructively possessed the gun. See Romero, supra at 658.
2. Evidentiary rulings. The defendant contends that the judge erred in a number of evidentiary rulings, and that he was thereby prejudiced. We review a preserved claim of error to determine whether an error did occur, and, if so, whether the error was prejudicial. Commonwealth v. Asher, 471 Mass. 580, 586 (2015). In deciding whether an error should trigger reversal, we apply harmless error analysis. See Commonwealth v. Morales, 76 Mass. App. Ct. 663, 666-667 (2010). Among the factors we consider in determining whether an error involving improper evidence is harmless are "(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions" (footnotes omitted). Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).
The defendant first claims that the judge erred when she allowed the admission of evidence of Creech's guilty plea. Although the prosecutor moved in limine to elicit the testimony without objection from the defense, defense counsel promptly objected when the prosecutor asked the question at trial. While the grounds for the objection were not specified, the context leads us to conclude that it adequately preserved the defendant's rights on appeal. See Commonwealth v. Lenane, 80 Mass. App. Ct. 14, 19 (2011).
Looking at the merits of the defendant's claim, we conclude that the evidence of the plea should not have been admitted. See Asher, supra at 586. Evidence that Creech pleaded guilty to possession of a firearm was superfluous to the prosecutor's attempt to establish the theory that each of the occupants of the vehicle had his own weapon. The evidence indicated that Creech had actual possession of a firearm in his waistband. Whether Creech pleaded guilty to the charges against him would not further contribute to the prosecutor's theory. If such evidence had any probative value, it was substantially outweighed by the potential for prejudice. Mass. G. Evid. § 403 (2017). Thus, it was error to admit evidence of Creech's guilty plea. However, while the admission of the evidence was improper, it was not prejudicial in light of the strong circumstantial evidence pointing to the defendant's guilt, in particular the location of the three firearms in relation to the three individuals in the car, with one of the individuals having one of the weapons in his waistband, and the other two having firearms in close proximity and easily accessed. Thus, the erroneous admission of evidence of the guilty plea does not require a new trial. See Mahdi, supra at 696-697.
The defendant further contends that the judge improperly admitted evidence of the marijuana and pill bottle found in the vehicle. As a preliminary matter, the parties disagree about whether we should even consider the question, as there are many responses at sidebar marked "indecipherable." The record is incomplete, but nonetheless it is sufficient to enable us to reach the merits. See Katz v. Commonwealth, 379 Mass. 305, 313 (1979).
In this inquiry, we again weigh the probative value against the danger of unfair prejudice to determine whether there was "palpable error." Commonwealth v. Bonds, 445 Mass. 821, 831 (2006). The record shows the judge was concerned about the prejudicial nature of the evidence of marijuana and issued an instruction to the jury in order to limit their consideration of the evidence and prevent any possible prejudice. However, the grounds for admitting the evidence (to provide "context") are weak. All evidence is potentially contextual; a decision on such grounds concedes there is no probative value, while the risk of prejudice is substantial. In this case, however, the error was harmless. The testimony only established that a small amount of marijuana was found, an amount typically associated with personal use. We are confident that it did not influence the jury as to the defendant's constructive possession of the firearm. Meanwhile, the evidence that the defendant constructively possessed the specific firearm tucked between the driver's seat and the console was strong. See Mahdi, 388 Mass. at 696-697.
The judge stated: "Members of the jury, I am going to just instruct you that neither of the defendants are charged with any charge involving marijuana. The marijuana is being brought in to give you a context of what the scene was like. But you are not to consider it in terms of the guilt or innocence of either of the defendants for any of the charges that are before you today."
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The defendant also contends the evidence regarding the pill bottle should not have been admitted. However, this evidence had probative value; it could show that the defendant had a possessory interest in other items in the car, and thus was probative of the defendant's constructive possession of the firearm. See Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 416-417 (1996) ("[T]he presence of personal papers does point to a defendant's familiarity and knowledge of contents" of area); Commonwealth v. Valentin, 55 Mass. App. Ct. 667, 671 (2002) (jury could reasonably infer defendant's constructive possession of gun from evidence that gun was found in backpack with defendant's paystub and shirt). Indeed, the prosecutor used that evidence for this purpose in her closing argument. The judge's decision to admit the evidence of the pill bottle with the defendant's name on it was not error.
Finally, the defendant argues on appeal that the prosecutor acted improperly by saying, "He's smart," when referring to the evidence of Creech's plea in her closing argument. There was no objection to the statement at trial, and so we analyze whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 561-564 (1967) ; Mass. G. Evid. § 103(e). Furthermore, we consider that the absence of an objection provides "some indication that the tone, manner, and substance ... of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360 (1985). As discussed above, given the weight of the circumstantial evidence against the defendant, the admission of evidence of Creech's guilty plea itself was not an error that requires a new trial. It is difficult to discern from the transcript just what the prosecutor meant by saying, "He's smart," but it may have been understood as a reference to the evidence of the guilty plea. Given that defense counsel did not at the time consider it to be significant, and it was only a fleeting reference in an otherwise proper argument, we cannot say that there is a substantial risk of a miscarriage of justice. See Freeman, supra at 563.
3. Motion to suppress. When reviewing a judge's ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Here, the defendant contends the judge erroneously concluded that the search of the automobile was justified as a Terry-type search. See Terry v. Ohio, 392 U.S. 1 (1968). "It is settled in law that in appropriate circumstances, a Terry type of search may extend into the interior of an automobile as long as it is limited in scope to a protective end." Commonwealth v. Silva, 366 Mass. 402, 408 (1974). Appropriate protective circumstances include concern for officer safety, should a person not under arrest return to a vehicle. See Commonwealth v. Edwards, 476 Mass. 341, 349 (2017). The scope of such a search is limited to "the area from which the suspect might gain possession of a weapon." Commonwealth v. Almeida, 373 Mass. 266, 272 (1977).
Here, the concern for the officers' safety was sufficiently heightened by the fact that the other occupants had weapons, giving Officer Paradis a reason to believe there might be another firearm in the vehicle. Furthermore, the officer's search was restricted to the area of the driver's seat. This was a search justified by the circumstances and appropriately limited in scope. Thus, the judge's denial of the motion to suppress was proper.
Judgments affirmed.