Commonwealth v. Jefferson

461 Mass. 821

965 N.E.2d 800

COMMONWEALTH

v.Liquarry C. JEFFERSON.

Commonwealth

v.Leslie Burton–Brown.

SJC–11022, SJC–11054.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 2011.

Decided April 11, 2012.

Jennifer J. Cox, Beverly, for Liquarry C. Jefferson.

Michael A. Waryasz for Leslie Burton–Brown.

Cailin Campbell, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

After a jury trial in the Central Division of the Boston Municipal Court Department, the defendants, Leslie Burton–Brown and Liquarry Jefferson, were convicted of carrying a firearm without a license, in violation of G.L. c. 269, § 10 (a ) ; possession of ammunition without a firearm identification card, in violation of G.L. c. 269, § 10 (h ) ; and possession of a loaded firearm, in violation of G.L. c. 269, § 10 (n ).¹ The defendants appealed, and we granted their applications for direct appellate review. They challenge, among other issues, the sufficiency of the evidence that they possessed the firearm, and they contend that, even if they did, the unlicensed carrying of the firearm was not a crime because the firearm was manufactured before 1900. We conclude that the evidence that the defendants jointly and knowingly possessed the loaded firearm is sufficient as a matter of law. But we also conclude that the judge erred in denying the defendants the opportunity to offer the affirmative defense that the firearm was manufactured before 1900 and therefore could be lawfully possessed without a license to carry, and that this error may have materially influenced the firearm and ammunition convictions. We, therefore, reverse the judgments of conviction on the firearm charges and the ammunition charge as to each defendant, and we remand the cases to the Boston Municipal Court for a new trial on these charges.²

Background. Because the defendants challenge the sufficiency of the evidence, we describe in detail the evidence at trial viewed in the light most favorable to the Commonwealth. Commonwealth v. Cordle, 412 Mass. 172, 173–175, 587 N.E.2d 1372 (1992). On February 21, 2009, at approximately 11:30 P.M. , Officer Dennis Medina and Sergeant James Tarantino of the Boston police department, along with State Trooper William Cameron, were finishing their patrol shift in an unmarked police cruiser in the Dorchester section of Boston when they saw a vehicle fail to stop at a red traffic light. The officers approached the vehicle in their cruiser and turned on the cruiser's police lights and siren to make a traffic stop. The vehicle promptly came to a stop on the side of the road, and the cruiser stopped behind it.

Once Trooper Cameron and Sergeant Tarantino stepped out of the cruiser, the vehicle raced away, the tires "screeching." The officers returned to their cruiser and gave chase. Driving at a high rate of speed, the vehicle made a right turn onto Vinson Street, going up onto the curb and nearly striking a building at the intersection. Vinson Street is a one-way street and the vehicle was moving in the wrong direction. The vehicle did not stop or slow at the intersection, and it continued on to a street named Wellesley Park. Without slowing, the vehicle then took a wide left turn onto Melville Avenue. As the vehicle turned, the cruiser was a few "car lengths" behind, and the pursuing police officers lost sight of the vehicle for "[n]o more than a couple of seconds." On Melville Avenue the vehicle slowed as it approached the intersection with Dorchester Avenue, made a right turn on Dorchester Avenue that was more controlled than its previous turn, and finally stopped a "couple of blocks" from the intersection with Melville Avenue.

Trooper Cameron left the cruiser, removed the driver (Burton–Brown) from the vehicle, put him on the ground, and handcuffed him. Cameron told Burton–Brown that he was under arrest "because he ran from us." Burton–Brown explained that he had "an open case" and fled because he was scared. When the trooper said he was under arrest just for motor vehicle violations, Burton–Brown's demeanor changed: "He became cocky, kind of like laughing at me...."

The other officers removed the front seat passenger (Jefferson) and the back seat passenger³ from the vehicle and handcuffed them. The front passenger's side window of the vehicle was "all the way down."⁴ Other police officers were called to retrace the path of the chase to search for any items thrown from the vehicle. Approximately ten minutes later, a police team searching with flashlights located a firearm and what appeared to be "broken pieces of plastic," later identified to be part of the firearm's handle, "scattered about" in the middle of a paved walkway leading to the front steps of a house on Melville Avenue, near the corner of Wellesley Park where the defendants' vehicle had earlier made the wide turn while being chased. Although the police had not seen anything being thrown from the vehicle, the location of the firearm was consistent with its having been thrown from the open front passenger's side window when the police lost sight of the vehicle as it turned left onto Melville Avenue. While retracing the path of the vehicle, the police noticed no other pedestrians or other potential source of the firearm. The firearm was in plain view on the walkway, a few feet from the sidewalk. A resident of the house had not seen any firearm around her house or street in the twenty years she lived there.⁵

The firearm on the walkway was a Harrington & Richardson .32 caliber five-shot revolver, loaded with three rounds. Forensic testing yielded no recoverable fingerprints on the revolver. Two of the three rounds in the firearm were "struck but not fired," meaning the primer had been struck but the projectile had not discharged from the casing. Detective Martin Lydon of the Boston police department, a firearm and toolmark examiner with the department's firearm analysis unit, tested the operability of the firearm on June 23, 2010. Before he test fired it, Lydon opened the firearm's cylinder to make sure it was safe and that the parts were there. When he did that, three pieces fell out: a firing pin, a firing pin spring, and a "bushing that holds it in." Lydon put the firing pin and spring back into the revolver, then used a small pair of pliers that anyone could purchase to put the bushing in "and twist it about" with a three-quarter turn to secure it, a procedure that "took about a minute." He then loaded the revolver with two rounds of "stock ammunition" and pulled the trigger, intending to fire both rounds into a water tank. The firearm did not discharge on the first two pulls of the trigger, but he "continued pulling the trigger, and the next time the two rounds came around, each one was discharged."⁶

Discussion. 1. Sufficiency of the evidence. The defendants moved for required findings of not guilty at the conclusion of the prosecution's case under Mass. R.Crim. P. 25(a), 378 Mass. 896 (1979), and renewed their motions under Mass. R.Crim. P. 25(b)(2), 378 Mass. 896 (1979), after the jury's verdicts. On appeal, the defendants contend that the evidence was insufficient as a matter of law to establish that they were in knowing possession of the loaded revolver that was found on Melville Avenue, or that the revolver met the definition of a firearm under G.L. c. 140, § 121, which requires proof that "a shot or bullet can be discharged" from the revolver.

In evaluating the sufficiency of evidence, we ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Marshall, 434 Mass. 358, 361, 749 N.E.2d 147 (2001), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

While we recognize the issue to be close, we conclude that the evidence was sufficient as a matter of law to support the jury's finding that the defendants jointly and knowingly possessed the loaded revolver. While no recoverable fingerprints were found on the revolver and no one saw anyone throw the firearm from the vehicle during the chase, a jury reasonably could have inferred from the location of the firearm in the middle of the walkway that it had only recently landed there, because it was in such plain view that it would not have remained there for long without being reported or removed. The jury reasonably could have inferred from the broken pieces of the handle found near the revolver that the firearm had hit the ground with enough force for the handle to break into pieces, and that such force was consistent with it being thrown from a moving vehicle. The location of the revolver was also consistent with where it would have landed had it been thrown from the open front passenger's side window of the vehicle at the moment when the police briefly lost sight of it as Burton–Brown made a wide left turn onto Melville Avenue. Because the police officers who retraced the path of the defendants' flight saw no pedestrians or any other apparent source of the weapon, the jury reasonably could have inferred that the firearm had been thrown from the defendants' vehicle during the brief moment in the chase when the vehicle could not be seen from the police cruiser. See, e.g., Commonwealth v. Duncan, 71 Mass.App.Ct. 150, 154, 879 N.E.2d 1253 (2008) (defendants were "only persons in the immediate vicinity" of firearm).

This circumstantial evidence must be considered with other evidence that reasonably permitted the inference that the defendants had thrown some type of contraband from the vehicle during the chase. A rational jury could infer that Burton–Brown sped away for a reason when the police first left their cruiser to approach the vehicle, and that the reason was to throw away contraband that Burton–Brown feared the police would find during a stop. See, e.g., Commonwealth v. Doucette, 408 Mass. 454, 461, 559 N.E.2d 1225...