Commonwealth v. Romero

• Citation: 464 Mass. 648,984 N.E.2d 853
• Decision Date: 15 March 2013
• Docket Number: SJC–11149.
• Parties: COMMONWEALTH v. Eric ROMERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 648

984 N.E.2d 853

COMMONWEALTH

v.Eric ROMERO.

SJC–11149.

Supreme Judicial Court of Massachusetts,

Middlesex.

Submitted Nov. 6, 2012.

Decided March 15, 2013.

Devon Dietz Hincapie for the defendant. Ceara C. Mahoney, Assistant District Attorney (Kevin J. Curtin, Assistant District Attorney, with her) for the Commonwealth.

Brownlow M. Speer, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

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

CORDY, J.

The defendant, Eric Romero, was convicted of carrying a firearm without a license in violation of G.L. c. 269, § 10 ( a ), based on a theory of constructive possession. On appeal, he asserts that the Commonwealth failed to present evidence sufficient to establish as a matter of law that he had (1) knowledge of the firearm's presence in his vehicle, (2) the ability to exercise control over the weapon, and (3) the intent to do so. He also argues that the evidence on these points is susceptible to “equal and inconsistent” inferences and choosing between them amounts to impermissible conjecture. Additionally, the defendant contends that it was error to permit the investigating police officer to testify about the defendant's extrajudicial statements made at the time of his arrest, because they were not relevant to any element of the charged offense and introduced collateral issues that confused the jury. Finally, the defendant avers that the Commonwealth's reliance on a ballistics certificate, in order to prove the weapon was a “firearm” as defined by G.L. c. 140, § 121, without making the ballistician available for cross-examination was testimonial hearsay and violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution. On appeal, a divided panel of the Appeals Court affirmed. Commonwealth v. Romero, 80 Mass.App.Ct. 791, 956 N.E.2d 1250 (2011)( Romero ). We granted the defendant's application for further appellate review.¹

We conclude at the outset that the trial judge did not err in admitting the defendant's extrajudicial statements. We further conclude that although the evidence proffered by the Commonwealth was adequate to establish that the defendant knew the firearm was present in the motor vehicle he was operating and that he had the ability to exercise control over the weapon, the evidence was insufficient to prove he had the requisite intention to control the firearm. Consequently, the defendant is entitled to a directed verdict of not guilty.²

1. Background. The jury could have found the following facts. On April 23, 2008, just after 4:30 p.m., the defendant drove to his girl friend's house on Chestnut Street in Waltham to pick her up for a night out. While he waited outside, her brother, Eduardo Alvarez, approached the defendant's vehicle and showed him his firearm. The defendant looked at the firearm, touched it, and gave it back to Alvarez. When his girl friend came out of the house, the two of them left in the defendant's motor vehicle. When they returned, later that evening, Alvarez and his brothers were outside, and they asked if they could go for a ride in the defendant's new vehicle. The defendant agreed and proceeded to drive them around for a short period of time but soon returned to the house, at which point they remained in the now parked vehicle listening to music.

Meanwhile, Officer Dennis M. Deveney, Jr., of the Waltham police department was patrolling in the area. At approximately 1:30 a.m., his attention was drawn to the defendant's motor vehicle, a two-door sports coupe, parked on a dimly lit section of Chestnut Street. As Deveney drove past the vehicle, he observed several individuals sitting inside, but due to the way the occupants were sitting, he could only see the “tops of their torso[s] and their heads.” Deveney also noticed that the interior dome light turned off as he passed. This observation prompted Deveney to return to Chestnut Street, where he parked his cruiser thirty feet behind the defendant's vehicle so that he could make further observations.

Deveney began to walk down Chestnut Street, stopping three to five feet behind the vehicle. He waited for about one minute, trying to determine what the occupants were doing. The front passenger's side window was open and Deveney heard music playing. He watched as the occupant sitting behind the driver reached toward the front seat. He also observed the defendant, who was sitting in the driver's seat, look from side to side, while Alvarez, who was sitting in the front passenger seat, examined an object in his hand. Based on these observations, Deveney shone his flashlight into the vehicle and asked the occupants, “What's going on guys?” Looking panicked, Alvarez turned toward Deveney and immediately dropped the object he was holding into his lap. Deveney directed his flashlight to the object and saw that it was a black handgun, at which point he called for backup and awaited its arrival before removing the occupants from the vehicle.

Soon thereafter, Deveney read the defendant the Miranda warnings, and the defendant agreed to speak with him. During their conversation, the defendant acknowledged that he knew Alvarez owned a firearm, but that he was unaware that Alvarez had it with him in the vehicle or that it was being passed around. The defendant also told Deveney that Alvarez had shown him a firearm earlier that day and that he had handled the weapon. Following this conversation, Deveney placed the defendant under arrest. The unloaded firearm was then sent to the State police crime laboratory to determine whether it was operable. After testing, the firearm was returned to the Waltham police department along with one spent bullet casingand a ballistics report confirming that the firearm was functional.

2. Discussion. a. Admissibility of the defendant's out-of-court statement. Because it is relevant to our later analysis, we first consider whether the judge correctly admitted in evidence the defendant's statement to Deveney that Alvarez showed him a gun earlier in the day. The defendant argues that this statement is inadmissible because it is (1) hearsay, (2) irrelevant to any material issue, and (3) overly prejudicial. The Commonwealth responds that the statement is admissible as circumstantial evidence that the defendant knew the firearm was in his vehicle as well as for its truth as an admission of a party opponent. We agree with the Commonwealth.

Hearsay is an out-of-court statement offered by a witness at trial or hearing to prove the truth of the matter asserted. Mass. G. Evid. § 801(c) (2012). See Commonwealth v. Marshall, 434 Mass. 358, 365–366, 749 N.E.2d 147 (2001). Here, however, the out-of-court statements at issue were uttered by the defendant and qualify as admissions of a party opponent ³ pertinent to his knowledge of Alvarez's possession of a firearm earlier in the day and, as a possible result, his awareness of its presence in the vehicle at the time of his arrest.⁴ Consequently, the defendant's statement is not hearsay and is admissible for its truth. Mass. G. Evid. § 801(d)(2)(A) (2012).⁵ There was no error.

b. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we determine “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” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–329, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). General Laws c. 269, § 10 ( a ), provides: “Whoever ... knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm, loaded or unloaded ... without ... (2) having in effect a license to carry firearms issued under [G.L. c. 140, § 131] ... shall be punished by imprisonment in the state prison....” In order to sustain a conviction, 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, 867 N.E.2d 341 (2007), and that he did so knowingly. See Commonwealth v. Gouse, 461 Mass. 787, 795, 965 N.E.2d 774 (2012).^{6, 7}

Because the firearm was not found on the defendant's person, we must determine whether there was sufficient evidence to support the Commonwealth's theory of constructive possession. Proof of constructive possession requires the Commonwealth to show “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989)( Brzezinski ), quoting Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). “Proof of possession of [contraband] may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Brzezinski, supra, quoting Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 426, 475 N.E.2d 81 (1985). However, “[p]resence alone cannot show the requisite knowledge, power, or intention to exercise control over [contraband], but presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977)( Albano ), quoting United States v. Birmley, 529 F.2d 103, 108 (6th Cir.1976).

We begin by considering whether the defendant knew that the firearm was in his vehicle. In making its case, the Commonwealth principally relies on the facts that the defendant held title to the vehicle and that the weapon was in plain view. By contrast, the defendant argues that, due to its small size, the firearm was not in plain view and that the defendant's statement to Deveney did not support an inference that he was aware of the weapon's presence.

We agree with the Appeals Court that the...