Com. v. Bailey, 90-P-291

• Decision Date: 17 December 1990
• Docket Number: No. 90-P-291,90-P-291
• Parties: COMMONWEALTH v. Curtis L. BAILEY.
• Court: Appeals Court of Massachusetts

Page 1378

563 N.E.2d 1378

29 Mass.App.Ct. 1007

COMMONWEALTH v. Curtis L. BAILEY.

No. 90-P-291.

Appeals Court of Massachusetts Suffolk.

Argued Nov. 9, 1990.

Decided Dec. 17, 1990.

Robert L. Goodale, Boston, for defendant.

Newman Flanagan, Dist. Atty., and Robert Feeney, Asst. Dist. Atty., for the Com.

Before FINE, KAPLAN and PORADA, JJ.

RESCRIPT.

A jury of six found the defendant Bailey guilty of the crimes of receiving a stolen motor vehicle (a 1986 Oldsmobile Delta), possessing a burglarious instrument (a screwdriver), and carrying an unlicensed firearm (a sawed-off rifle) in his possession or under his control in a vehicle, all the offenses having been committed as connected parts of an illicit episode on March 17, 1988. The present appeal is from the firearm conviction.

Officers James Gaughan and Matthew Kervin, in uniform in a marked cruiser at 2:10 A.M., March 17, gave chase to a red, two-door, 1986 Oldsmobile Delta which was traveling at excessive speed and on the wrong side of the street in the vicinity of Morton Street in the Mattapan area of Boston. Shortly the Olds turned and drove down the length of Lorna Road to a dead end. The police cruiser had closed on the Olds to a distance of twenty-five feet. As the cruiser drew up to the driver's side of the halted Olds, the doors of the car were flung open; the defendant leapt from the driver's seat through the driver's door and attempted to escape by running to the rear of the car and away. Officer Gaughan hustled out of the cruiser from the front passenger seat and in a few moments nabbed the defendant and secured him in the back of the cruiser. Then Gaughan went to the aid of Officer Kervin, the cruiser's driver. Kervin was pursuing three men who had occupied the rear seat of the Olds and left it through the door on the passenger side. Kervin and Gaughan soon lost the men in the woods nearby.

Returning to the vehicles, the officers, inspecting the interior of the Olds, observed characteristic damage to the lock of the door on the driver's side and to the steering column, indicating that the car had been broken into and driven off, an operation wherein it was fair to assume the yellow Phillips-head screwdriver had been used, which now rested on the middle of the front seat. ¹ The officers also observed a sawed-off rifle, later measured at seventeen and one-half inches, on the floor of the car on the driver's side, near the pedals.

A jury could have found the foregoing facts, to be appraised with intendments favoring the prosecution, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), and the question is whether a case of possession was made out within the firearm statute, G.L. c. 269, § 10(a), that could hold against the defendant's motion for a required finding.

In Commonwealth v. Albano, 373 Mass. 132, 133, 135, 365 N.E.2d 808 (1977), police officers, looking at 4:30 A.M. into a car with lights off stopped in front of a closed business establishment, observed by flashlight the butt of a gun protruding one and a half inches from beneath the driver's seat. The...