Commonwealth v. Shepard

COMMONWEALTH v. JAWONE SHEPARD (and a companion case^[1]).

Nos. 20-P-1104, 20-P-1325

Appeals Court of Massachusetts

April 11, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The codefendants, Jawone and Jaquan Shepard, were each charged with first degree murder, possession of a firearm without a license in violation of G. L. c. 269, § 10 (a.), and possession of a loaded firearm without a license in violation of G. L. c. 269, § 10 (n) ^[2]Following a jury trial, Jawone was acquitted of first-degree murder, but was found guilty of both gun offenses. Jaquan was also found guilty of each of the gun offenses; however, Jaquan was also found guilty of the lesser included offense of voluntary manslaughter. Both defendants timely appealed. On appeal, Jawone challenges the sufficiency of the evidence of his knowledge that the firearm was loaded. Jaquan instead argues that the judge provided an incomplete self-defense instruction, resulting in a substantial risk of a miscarriage of justice. We affirm.

Discussion.

1. Sufficiency of the evidence.

Jawone challenges the sufficiency of the evidence as to his knowledge that the firearm was loaded, claiming the judge erred in denying his motion for required finding of not guilty. We disagree.

"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [citation omitted] . . . Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009). Sufficiency of the evidence "must be reviewed with specific reference to the substantive elements of the offense." Id. In order to convict the defendant for unlawful possession of a loaded firearm, the Commonwealth must prove: (1) the defendant knowingly possessed a firearm, (2) the firearm was loaded with ammunition, and (3) the defendant knew the firearm was loaded when he possessed it. See Commonwealth v. Silvelo, 96 Mass.App.Ct. 85, 90 (2019) . Jawone challenges only the sufficiency of the Commonwealth's proof as to the third element, namely his knowledge that the firearm was loaded when he possessed it.

Here, on the day of the shooting, Jawone texted his brother, Jaquan, to retrieve a blue bag containing a firearm from Jawone's residence. Shortly after those text messages, video surveillance showed Jaquan enter the residence and leave with a blue bag. During the text message exchange, Jawone warned his brother to "[k]eep cool," as the bag contained the "blamy."^[3]

Later that evening, Jawone arrived at his residence in his car with Jaquan, who exited the passenger side of the vehicle, retrieved the same blue bag from the trunk, and handed something to Jawone to leave in the vehicle. Jaquan then entered the residence to drop off the blue bag and returned to the vehicle.

Thereafter, Jawone drove with Jaquan to Bowdoin Street in Dorchester and parked the car, where the two men met with their half-brother. While parked, the three men smoked marijuana, until the victim walked past Jawone's car. Both Jawone and Jaquan appeared to quickly become scared, as they recognized the victim to be a rival gang member, who knew where they lived, and had been "after" them. At this time, Jawone and Jaquan instructed their half-brother to exit the vehicle, as they planned to "move on" the victim.^[4] Shortly thereafter, Jaquan exited the vehicle, engaged with the victim, and shot him. Jawone remained in the car nearby, until hearing gunshots, after which he drove somewhat erratically, fleeing the scene in the same direction as Jaquan.^[5]

When analyzing whether the evidence was sufficient to support a conviction, the inferences to support such conviction "need only be reasonable and possible; [they] need not be necessary or inescapable" (citations and quotations omitted). Commonwealth v. Santos, 95 Mass.App.Ct. 791, 798 (2019). Knowledge that a gun is loaded may be inferred solely from circumstantial evidence. See Commonwealth v. Brown, 479 Mass. 600, 608 (2018). However, the jury may not rely upon mere "surmise, conjecture, or guesswork" (citation and quotation omitted). Commonwealth v. Ashford, 486 Mass. 450, 455 (2020).

Here, "[i]t is reasonable to infer that one who brings a gun to a location knows whether or not it is loaded." Commonwealth v. Mitchell, 95 Mass.App.Ct. 406, 419 (2019). "It is [also] certainly a reasonable inference . . . that a person who plans and participates with others in an assault on a victim by means of a handgun . . . would know whether the [firearm was] loaded before carrying out the assault" (citation omitted). Santos, 95 Mass.App.Ct. at 801. Therefore, when viewing the evidence in the light most favorable to the Commonwealth, it was entirely reasonable for the jury to infer that Jawone had knowledge that the firearm was loaded when he possessed the firearm and supplied it to his brother, who then by agreement, used the loaded firearm as part of a joint venture attack on the victim. See Mitchell, 95 Mass.App.Ct. at 419. See also Santos, 95 Mass.App.Ct. at 801. Contrast Ashford, 486 Mass. at 455-456 (Commonwealth's broad, generalized inference that drug dealers more likely to carry loaded firearm for "protection" was not a reasonable inference to prove that firearm was loaded, where defendant did not handle, use, or even threaten to use his gun). Thus, there was no error.

2. Self-defense instructions.

Jaquan argues that the judge provided an incomplete self-defense instruction by omitting instructions for the jury on certain evidentiary considerations, thus creating a substantial risk of a miscarriage of justice. We disagree. Where the defendant failed to object to the self-defense instructions at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Diaz, 100 Mass.App.Ct. 588, 599 (2022). A substantial risk of a miscarriage of justice exists only when an appellate court has a serious doubt whether the result of the trial might have been different had the error not been made. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) .

It is the Commonwealth's burden to prove that the defendant did not act in lawful self-defense. See Commonwealth v. Grassie, 476 Mass. 202, 209-210 (2017) . To do so, the judge must instruct the jury that the Commonwealth must prove at least one of the following beyond a reasonable doubt: "(1) the defendant did not actually believe that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force; (2) a reasonable person in the defendant's position would not reasonably have believed that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force; (3) the defendant did not use or attempt to use all proper and reasonable means in the circumstances to avoid physical combat before resorting to the use of deadly force; or (4) the defendant used more force than was reasonably necessary in all the circumstances." Id. at 210. See also Model Jury Instructions on Homicide 17-18 (2018) .

In considering the first two elements of self-defense, the judge may also instruct the jury that they may consider: (1) evidence of the victim's reputation as a violent or quarrelsome person, if such reputation was known to the defendant; (2) evidence of other instances of the victim's violent conduct, if such conduct was known to the defendant; and (3) evidence of threats of violence made by the victim against the defendant, if the defendant was aware of such threats. See Model Jury Instructions on Homicide at 19-20. Jaquan relies upon Commonwealth v. Mitchell, 95 Mass.App.Ct. at 412, to claim that where the judge instructed the jury on only one of these three evidentiary considerations, the judge's instructions were incomplete and created a substantial miscarriage of justice. However, such reliance is misplaced.

In Mitchell, we employed a two-prong analysis to determine whether an omission from a jury instruction created a substantial risk of a miscarriage of justice. See 95 Mass.App.Ct. at 411-412. Such analysis focused primarily on (1) whether, in order to find the defendant guilty, the jury were required to find a particular, essential element on which they were not instructed, and (2) whether the jury's verdict, in light of the omission, nevertheless compelled the conclusion that the jury must have necessarily found the essential element on which they were not instructed. See Id. In Mitchell, the judge failed to properly instruct the jury on an essential element of the crime, namely the element of the defendant's knowledge that the firearm was loaded. 95 Mass.App.Ct. at...