Com. v. Brown

479 Mass. 600

97 N.E.3d 349

COMMONWEALTH

v.Tyriek BROWN.

SJC–12348

Supreme Judicial Court of Massachusetts, Worcester.

Argued January 5, 2018.

Decided May 22, 2018.

Deborah Bates Riordan, (Theodore F. Riordan, also present) for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

David Rangaviz, Committee for Public Counsel Services, for Erickson Resende, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

GAZIANO, J.

The primary issue presented in this appeal is whether the Commonwealth is required to prove a defendant knows that a firearm in his or her possession is loaded in order to be convicted of unlawful possession of a loaded firearm under G. L. c. 269, § 10 (n ).

After police officers discovered a loaded firearm in the rear console of a vehicle driven by the defendant, he was charged with and convicted of unlawful possession of a firearm, G. L. c. 269, § 10 (a ), and unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n ).¹ The defendant appealed from his convictions, and the Appeals Court vacated the conviction of possession of a loaded firearm, after it concluded that G. L. c. 269, § 10 (n ), requires the Commonwealth to prove a defendant's knowledge that the firearm was loaded. See Commonwealth v. Brown, 91 Mass. App. Ct. 286, 287, 293, 74 N.E.3d 293 (2017). Because the defendant "could not have discerned whether the gun was loaded merely by looking at it," and the Commonwealth presented no evidence that the defendant had knowledge that the gun was loaded, the Appeals Court decided that there was "no basis on which a rational juror could conclude beyond a reasonable doubt that the defendant knew the gun was loaded." Id. at 293, 74 N.E.3d 293. The Appeals Court affirmed the conviction of possession of a firearm without a license, concluding that the prosecutor's closing argument was not improper and that, even if it was, it did not result in a substantial risk of a miscarriage of justice. Id. at 294, 74 N.E.3d 293. We allowed both parties' applications for further appellate review.

In its brief to this court, the Commonwealth contends that G. L. c. 269, § 10 (n ), is merely a sentencing enhancement for the underlying offense of unlawful possession of a firearm, G. L. c. 269, § 10 (a ). In this view, an additional element of knowledge that a firearm contains ammunition is not required to prove a violation of G. L. c. 269, § 10 (n ). All that is required is knowledge of possession of a firearm. The defendant challenges the sufficiency of the evidence to support a conviction of possession of a loaded firearm and the Appeals Court's determination that the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice.

We conclude that, to sustain a conviction under G. L. c. 269, § 10 (n ), the Commonwealth must prove that a defendant knew the firearm he or she possessed was loaded. Because the Commonwealth presented no evidence in this case that could allow any rational trier of fact to find beyond a reasonable doubt that the defendant knew the firearm was loaded, the conviction of possession of a loaded firearm without a license cannot stand. Further, because we conclude that the Commonwealth's closing argument did not create a substantial risk of a miscarriage of justice, we affirm the conviction of possession of a firearm without a license, in violation of G. L. c. 269, § 10 (a ).²

1. Background. As the defendant challenges the sufficiency of the evidence of his knowledge that the firearm was loaded, we recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

On the morning of July 4, 2013, State police Trooper Matthew Moran stopped a vehicle the defendant was driving on Interstate Route 290 in Worcester for a defective rear brake light. There were two passengers in the vehicle: a male passenger, Horace Murphy, in the front passenger seat; and a female passenger, Joelene Cataquet, in the back seat. Cataquet was asleep when the vehicle was stopped. The defendant said that he was returning from his former girl friend's house in Worcester and was headed back to Boston. He gave the trooper a Massachusetts identification card and a Massachusetts learner's permit. Murphy produced a Georgia driver's license. Moran determined through registry of motor vehicles records that both licenses were suspended in Massachusetts.

After a second trooper, Patrick Mahady, arrived in response to Moran's request for backup, the defendant was arrested for driving with a suspended license and was placed in Mahady's cruiser. Moran then read the defendant the Miranda rights, and the defendant indicated that he understood those rights. At that point, Moran determined that, because Cataquet did not have a driver's license, the vehicle would have to be towed from the highway, as none of the occupants legally could drive it. In preparation for towing, Moran conducted an inventory search of the vehicle while the defendant was in Mahady's cruiser and the two passengers waited behind the vehicle near the guardrail. Moran discovered a handgun loaded with five rounds of ammunition in the console between the rear passenger seats. After this discovery, Mahady arrested both passengers.

On the drive to the State police barracks, the defendant initiated a conversation with Mahady, saying that he thought Murphy had a license to carry a firearm. The defendant also said that he had gone to his former girl friend's house in Worcester that morning to pick up some clothing. While he was there, the girl friend's sister began arguing with an unknown male and waving a firearm around. The defendant said that he grabbed the gun from the woman and left the house. When he returned to the vehicle, where Murphy and Cataquet were waiting, he handed the gun to Cataquet and said that they would get rid of the gun later. Upon their arrival at the barracks, Mahady was called to another incident and left the defendant with Moran without mentioning the conversation. When Moran again advised the defendant of his Miranda rights, the defendant declined to speak with officers. At trial, Mahady testified to the substance of the conversation in the cruiser.

During booking, Cataquet gave a written statement, a redacted version of which was read in evidence by Mahady.³ As Mahady read it, the statement said,

"It is my firearm. I claim full responsibility for the firearm. I took it out of my purse and slid it into the rear console because it made my purse heavy ....

"I took a nap while we were riding on the highway, and the two men in front, [the defendant] and [Murphy], did not know at all that I was carrying a fully loaded clip firearm in the vehicle. And when I woke up out of my nap, both the men were in handcuffs. The officer asked me if it was mine. I said no, but I was scared. But most importantly, I can't let two men lose their freedom because I ... had the firearm on the ride to the station. I realized that, and that's why I'm writing this written statement. I take responsibility for my actions. The reasons I have a gun is because I was recently raped and felt the need to have a gun to protect myself. Once again, I take full responsibility."

There were no useable fingerprints on the firearm, the magazine, or the ammunition. A forensic scientist was unable to obtain the serial number for use in tracing the owner of the firearm. The defendant was convicted of unlawful possession of a firearm in a vehicle and unlawful possession of a loaded firearm in a vehicle, and acquitted of possession of a firearm with a defaced serial number. ⁴

The Appeals Court reversed the conviction of possession of a loaded firearm without a license and affirmed the conviction of possession of a firearm (in a vehicle) without a license to carry. We allowed both parties' applications for further appellate review.

2. Discussion. a. Mens rea requirement for G. L. c. 269, § 10 ( n ). General Laws c. 269, § 10 (a ), defines the offense of possession of a firearm, not in an individual's home or business, without a license. The statute is violated, inter alia, when an individual "knowingly has in his possession[,] or knowingly has under his control in a vehicle[,] a firearm, loaded or unloaded, ... without either ... being present in or on his residence or place of business ... or having in effect a license to carry firearms ...." See Commonwealth v. Sann Than, 442 Mass. 748, 752, 817 N.E.2d 705 (2004).

General Laws c. 269, § 10 (n ), provides a sentencing enhancement to the crime of unlicensed possession of a firearm where an unlicensed firearm was loaded.⁵ It does not create a stand-alone offense; in order to be convicted under G. L. c. 269, § 10 (n ), an individual must first have been convicted under G. L. c. 269, § 10 (a ) or (c ). Commonwealth v. Loadholt, 456 Mass. 411, 423–424, 923 N.E.2d 1037 (2010), S.C., 460 Mass. 723, 954 N.E.2d 1128 (2011). See Commonwealth v. Dancy, 90 Mass. App. Ct. 703, 705, 63 N.E.3d 1128 (2016) ("We interpret the plain language of this section to require a finding that § 10 [a ] or § 10 [c ] has been violated before the penalty enhancement provision in § 10 [n ] can apply").

At the close of all the evidence in this case, the judge indicated that he would give the jury instruction for the charge of unlawful possession of a loaded firearm proposed by defense counsel. Under the wording of that instruction, the Commonwealth was required to prove that (1) the defendant possessed or had control over a firearm; (2) the weapon met the legal definition of a firearm; (3) the defendant knew that he possessed a firearm; and (4) ammunition was contained in the weapon or within the feeding device attached to the weapon. The judge ultimately gave an instruction that combined language requested by the defendant and by the Commonwealth, and which mistakenly stated that five elements were required, while including...