Commonwealth v. Desir

98 Mass.App.Ct. 1114

155 N.E.3d 775 (Table)

COMMONWEALTH

v.Malcom DESIR.

19-P-1030

Appeals Court of Massachusetts.

Entered: October 16, 2020.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant, Malcom Desir, appeals from his convictions of carrying a firearm without a license, G. L. c. 269, § 10 (a ) ; possession of ammunition without a firearm identification (FID) card, G. L. c. 269, § 10 (h ) (1)² ; and failure to stop for a police officer, G. L. c. 90, § 25.³ The judge sentenced the defendant to eighteen months in the house of correction on the first count and one year of probation, on and after the committed sentence, on the second count. On the third count, failure to stop for a police officer, the judge did not impose a sentence, and instead placed the matter on file for six months. The defendant appeals from the order denying his pretrial motion to dismiss each of the criminal charges for lack of probable cause, the trial judge's postverdict order denying his motion for a required finding of not guilty as to each of those charges, and the judgments. As we conclude that the application for complaint failed to establish probable cause for the charge of failure to stop for a police officer, that verdict must be set aside, and that count of the complaint is to be dismissed. On the two possession charges, the judgments are affirmed.

1. Motion to dismiss the complaint for lack of probable cause. "[A] motion to dismiss a criminal complaint for lack of probable cause is decided from the four corners of the complaint application." Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111 (2013), quoting Commonwealth v. Bell, 83 Mass. App. Ct. 61, 62 (2013). "The complaint application ... must contain sufficient evidence to establish the identity of the accused and probable cause to arrest him." Bell, supra at 63. We review a judge's ruling on a motion to dismiss for lack of probable cause de novo. See Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013).

The defendant argues that the facts presented in the application for complaint were insufficient to establish probable cause that he "knowingly possessed" either the firearm or the ammunition found loaded into it, see G. L. c. 269, § 10 (a ), (h ), or that he knowingly failed to stop in response to a police officer's signal to do so. See G. L. c. 90, § 25. Due to the fact-intensive nature of the claims before us, we reserve a comprehensive review of the evidence for our sufficiency discussion, infra, while in addressing probable cause we provide only those facts included in the application for complaint that are necessary for us to reach our conclusions.

a. Illegal possession of firearm.⁴ "Proof of constructive possession requires the Commonwealth to show ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Evidence of the defendant's knowing possession of the pistol is similar to the evidence of possession approved in Commonwealth v. Jefferson, 461 Mass. 821 (2012). Notably, here, as in Jefferson, the defendant fled in his vehicle from officers approaching on foot and briefly was out of their view; retracing the defendant's route, the police found a pistol on the ground along the flight path. See id. at 823-824. As in Jefferson, the gun here was found in a readily-visible location, suggesting "that it would not have remained there for long without being reported or removed," and was in a position "consistent with where it would have landed had it been thrown from the ... window of the vehicle" while the vehicle was out of sight of the police. See id. at 826.

As the court noted in Jefferson, the defendant's acceleration away from the police when they approached permitted an inference that he did so in order to give himself an opportunity to dispose of the pistol without being seen. See id. at 826-827. His flight was also some evidence of consciousness of guilt.⁵ See Commonwealth v. Grayson, 96 Mass. App. Ct. 748, 751 (2019) (articulating proposition that flight may serve as evidence of consciousness of guilt); Commonwealth v. Summers, 93 Mass. App. Ct. 260, 264 (2018) (flight as " ‘plus’ factor" supporting inference of intent to exercise dominion and control over contraband). But cf. Commonwealth v. Evelyn, 485 Mass. 691, 708, 709 (2020), citing Commonwealth v. Warren, 475 Mass. 530, 539, 540 (2016) ("significantly discount[ing] weight" of "nervous and evasive behavior," in addition to flight from police by African-American man, as evidence of consciousness of guilt due to demonstrated "pattern of racial profiling" by Boston Police Department).

The fact that no one saw the defendant in possession of the firearm, or disposing of it, does not vitiate the probable cause determination as to possession. See generally Jefferson, 461 Mass. at 826-827. See also Commonwealth v. Gouse, 461 Mass. 787, 795 (2012) (possession and knowledge susceptible of proof by circumstantial evidence). We are satisfied that the application for complaint demonstrated probable cause to believe that the defendant violated G. L. c. 269, § 10 (a ).

b. Illegal possession of ammunition. The charge of possession of ammunition was based on the ammunition discovered in the pistol. Accordingly, the same evidence supporting probable cause for possession of the pistol itself supports probable cause for possession of the ammunition with which it was loaded. The evidence of the defendant's knowledge that the firearm was loaded, see Commonwealth v. Johnson, 461 Mass. 44, 52, 53 (2011) (understanding G. L. c. 269, § 10 (h ), to contain implicit knowledge requirement), while circumstantial, was sufficient to support the judge's probable cause determination.⁶ See Commonwealth v. Grandison, 433 Mass. 135, 141 (2001). There was evidence that the defendant had the gun with him in the car and that it was "cocked," with a round in the chamber, supporting the conclusion that the defendant had the weapon in his possession and ready for immediate use. See Grayson, 96 Mass. App. Ct. at 753 n.10 (indicators that firearm "was intended to be ready for immediate use and thus that it was known to be loaded" circumstantial evidence of knowledge); Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 419 (2019) ("It is reasonable to infer that one who brings a gun to a location knows whether or not it is loaded"). Additionally, the police report's reference to the defendant's past involvement with gun violence was evidence from which the judge could have inferred that the defendant had some familiarity with firearms. Cf. Grayson, supra at 753 (evidence of defendant's familiarity with firearms relevant factor in determining whether defendant knew firearm in his possession was loaded); Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200-201 (2018) (same).⁷ We conclude that these factors were sufficient to establish probable cause for knowing possession of the ammunition found in the pistol.

c. Failure to stop for police. As we noted, supra, although the jury convicted the defendant of failure to stop for a police officer, the judge did not sentence him on that charge; instead, the judge placed the charge on file until December 26, 2018.⁸ See Mass. R. Crim P. 28 (e), 453 Mass. 1501 (2009). The charge was never removed from the file, and the defendant was never sentenced on that conviction. Under rule 28 (e), a judge, with both parties' consent, may "file a case after a guilty verdict ... without imposing a sentence." "Ordinarily, we do not consider appeals from indictments placed on file," Commonwealth v. Chappee, 397 Mass. 508, 523 (1986), because in the absence of a sentence, the judgment is not final. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Here, however, we discern in the record valid reasons why the Commonwealth did not raise the question whether this aspect of the defendant's appeal is properly before us, and exercise our discretion to consider the appeal from the conviction, notwithstanding the fact that no sentence was imposed.⁹ The defendant argues that the police report failed to establish probable cause to believe that the defendant knew either that the undercover detectives were police officers at the time that they attempted to stop him, or that the detectives had "signaled [him] to stop." See G. L. c. 90, § 25. Although the application for complaint provided probable cause to believe that the defendant knew that the detectives were police officers,¹⁰ we do not discern in the report probable cause to believe that the officers "signaled [the defendant] to stop" before pulling alongside the defendant's car at the intersection of Snell Avenue and Riverview Street and showing him their badges.¹¹ Compare, e.g., Commonwealth v. Gray, 423 Mass. 293, 295 (1996) (use of unmarked vehicle's strobe lights and display of badge by plain-clothes detective sufficient to signal defendant to stop); Commonwealth v. Ross, 73 Mass. App. Ct. 181, 184 (2008) (activation of siren and lights with "repeated attempts to pull alongside the vehicle and at least one request to pull over" effective signal to stop).

On this evidence, we cannot say that the judge had probable cause to believe that the defendant failed to stop. Cf. Gray, supra; Ross, supra. Accordingly, as to the charge of failure to stop for a police officer, the judge should have allowed the defendant's motion to dismiss.

2. Motions for required finding of not guilty. At trial, the defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all of the evidence.¹² The motions were denied. Paralleling his challenges to the motion judge's probable cause determination, the defendant argues that there was insufficient evidence to support a finding that the defendant had knowledge or control of the firearm or ammunition that he...