Com. v. Sadberry
| Decision Date | 06 April 1998 |
| Docket Number | No. 97-P-0489,97-P-0489 |
| Citation | 44 Mass.App.Ct. 934,692 N.E.2d 103 |
| Parties | COMMONWEALTH v. Derrick SADBERRY. |
| Court | Appeals Court of Massachusetts |
James M. Hankin, Topsfield, for defendant.
Maryanne E. Kilty, Assistant District Attorney, for the Commonwealth.
RESCRIPT.
The defendant was charged with possession of a firearm without a license in two counts, one count alleging possession of a nine millimeter firearm and the second count alleging possession of a twenty-two caliber handgun. 1 The defendant was also charged with the unlawful possession of ammunition. A jury convicted the defendant of the unlawful possession of the nine millimeter firearm and unlawful possession of ammunition but acquitted him of the unlawful possession of the twenty-two caliber handgun. From his convictions, the defendant appeals on the ground that the evidence was insufficient to establish the defendant's guilt on a theory of joint venture or constructive possession. We affirm.
We summarize the evidence presented to the jury. As Audley Bodden was leaving Madison Park High School in Boston at about 9:20 P.M. on March 22, 1994, he heard gunshots and saw three young black males, wearing black clothes and black face masks, running from the area were the gunshots had been fired. One of the three had an object in his hand which Bodden estimated was the size of a hairbrush. At about the same time, three Boston police officers--Rogers, Feeney and Parlon--were dispatched to that area because of reports of gunfire. As they approached the area of the high school, a brown Toyota automobile with three black males in it passed them traveling in the opposite direction at about fifty miles per hour in a thirty mile per hour speed zone. As a result, the police turned their car around to pursue the Toyota. The Toyota pulled over. As the vehicle did so, Rogers noticed the passenger in the rear seat behind the driver bend down almost out of sight for a few seconds. Feeney approached the driver of the car, who was the defendant, and asked for his license and registration. The defendant did not have a license and acknowledged that the car belonged to the mother of the front seat passenger. Feeney asked the defendant to step out of the car. Feeney then searched under the driver's seat and found a nine millimeter gun which, upon being pulled out from under the seat, emitted a strong odor of gunpowder as if it had been recently fired. The gun had two live rounds of ammunition in it. The passengers were also ordered to step out of the car. When the front seat passenger alighted, one of the officers observed in plain view on the floor by the front passenger's seat a twenty-two caliber revolver. The officers also found, in the back seat of the car, two black hats, one black ski mask, and two pairs of black gloves. The rear seat passenger, Lindsey Heughan, who was wearing a black hat and jacket, told the police that he had found the nine millimeter gun in a field and fired a few shots in the air.
The defendant denied any knowledge of guns in the car and stated that he picked up Heughan on his way to his girl friend's house and was then pulled over by police.
The judge instructed the jury that, in order to find the defendant guilty, the Commonwealth must establish his guilt beyond a reasonable doubt by proof of the defendant's constructive possession of the firearm and ammunition or by proof that the defendant was engaged in a joint venture with another in the unlawful possession of the firearm and ammunition. The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and objected at the close of the judge's instructions to the instruction that the defendant's guilt could be established by proof of a joint venture. We now address the defendant's contentions.
1. Constructive possession. To warrant a finding of constructive possession it is not enough to place the defendant in the same car with the gun. Commonwealth v. Almeida, 381 Mass. 420, 421-423, 409 N.E.2d 776 (1980); Commonwealth v. Brown, 401 Mass. 745, 747, 519 N.E.2d 1291 (1988). In order to establish his guilt under this theory, the Commonwealth had to prove that the defendant had knowledge of the weapon, coupled with the ability and intention to exercise dominion and control...
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