Com. v. Smith

Decision Date21 May 2003
Docket NumberNo. 00-P-1215.,00-P-1215.
Citation788 N.E.2d 977,58 Mass. App. Ct. 166
CourtAppeals Court of Massachusetts

David J. Nathanson, Committee for Public Counsel Services, for the defendant.

Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth.



The defendant, Melvin T. Smith, appeals from his convictions for assault with intent to murder, G.L. c. 265, § 18, assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A, and unlawful possession of a firearm, fourth offense, G.L. c. 269, § 10. The defendant also appeals from the denial of his motion for a new trial.

1. Factual background. A jury could have found the following facts. Codefendant Felicia Brown lived with her mother, stepfather, and two siblings in a three-story building at 33 Lawn Street, in the Jamaica Plain section of Boston.1 The Brown family occupied part of the second floor of the building and all of the third floor, and rented part of the second floor and all of the first floor to tenants.2

On August 15, 1996, Christopher Robinson, Brown's cousin, spent the day sitting around the house, drinking alcohol, and smoking marijuana and crack cocaine. At approximately 4:00 A.M., Robinson went from the third floor to the second floor downstairs to lie down. When he reached the bottom of the stairs, he saw Brown and the defendant in Brown's bedroom. The defendant was holding what appeared to be a .32 or .38 caliber pistol.

Robinson testified that as he descended from the third to the second floor, the defendant shot him three times. The defendant said to Brown, "let's go." Robinson said, "I know who you are, Melvin. Why you shoot me? Why you shoot me? I know who you are. Your name is Melvin."3

Brown and the defendant left the house. Robinson sought help from Brown's stepfather, who telephoned the police. The police and paramedics arrived within moments of each other.

While the paramedics attended to Robinson, Boston police Officer Wayne Clark asked Robinson who shot him. Robinson replied, "Melvin." Officer Clark asked for a last name, but Robinson said he did not know it. Officer Clark asked Robinson how he knew Melvin, and Robinson told him that Melvin was his cousin's boyfriend.

The shooting severely injured Robinson and destroyed his digestive tract. While in the hospital, Robinson selected a photograph of the defendant from a photographic array and identified the defendant as the person who shot him. At trial, Robinson identified the defendant as his assailant.

On August 25, 1996, Boston police Detective Tony Smith interviewed Brown in the presence of her mother. Brown said that she and the defendant had left because Robinson had been acting crazy and "busting up" the house. Brown told Detective Smith that at the time of the shooting, the defendant was in his car and that she had just approached the house. She said that she heard the gunshots as she walked to the door, and that she and the defendant drove away, to "Tony's." Brown cried during the interview and explained that she was under a lot of pressure. She said that she and the defendant went to a friend's house to use the phone.

The theory of the defense was that Robinson was too intoxicated by drugs and alcohol to correctly identify his assailant and that one of the tenants in the building, Patrick Veridieu, had a motive and an opportunity to shoot him.

2. Discussion. a. The motion for required finding of not guilty and double jeopardy. After the Commonwealth rested, the defendant moved for a required finding of not guilty on the charge of unlawful possession of a firearm, arguing that because the Commonwealth had not introduced direct evidence of the gun's length, the Commonwealth had not proved that the gun met the statutory definition of a firearm. The judge allowed the motion. The allowance of the motion was not communicated to the jury, but it was recorded on the docket.

Later that day, after the defense had rested and before closing argument, the Commonwealth called the judge's attention to Commonwealth v. Sperrazza, 372 Mass. 667, 670, 363 N.E.2d 673 (1977), in which the Supreme Judicial Court held that testimony that a gun was a pistol or revolver was sufficient evidence to permit a firearm charge to go to the jury. In light of the case law, the trial judge concluded that the Commonwealth had, in fact, met the Latimore4 standard because the Commonwealth had introduced testimony that the gun was a "pistol" and that it was a ".32 or .38," from which a jury could infer that the gun was less than sixteen inches. The judge decided to submit the charge to the jury. The docket reflects that the motion for required finding of not guilty had been reconsidered and was denied.

The defendant argues that the judge erred because once the motion for a required finding was allowed, jeopardy terminated as to that charge, and the decision cannot be reversed regardless of whether the judge was factually or legally in error in allowing the motion. The Commonwealth responds that because the charge was submitted to the same jury that had heard the evidence, the defendant was not subjected to double jeopardy.

Massachusetts common law and the Fifth Amendment to the United States Constitution protect criminal defendants from being placed twice in jeopardy in three circumstances: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656 (1969); Luk v. Commonwealth, 421 Mass. 415, 419, 658 N.E.2d 664 (1995). The defendant's argument implicates only the first circumstance, a second prosecution after acquittal. See Commonwealth v. Lowder, 432 Mass. 92, 103, 731 N.E.2d 510 (2000).

We conclude that double jeopardy protections were not violated in these circumstances because the judge's correction of her ruling did not require a second proceeding. See, e.g., Commonwealth v. Haskell, 438 Mass. 790, 792, 784 N.E.2d 625 (2003) (judge's power to reconsider his or her own decisions during pendency of case is firmly rooted in common law); United States v. Washington, 48 F.3d 73, 79 (2d Cir.), cert. denied, 515 U.S. 1151, 115 S.Ct. 2596, 132 L.Ed.2d 843 (1995) (trial judge properly reversed entry of acquittal, after defense case began, where judge did so before informing jury); United States v. Baggett, 251 F.3d 1087, 1095 (6th Cir.2001), cert. denied, 534 U.S. 1167, 122 S.Ct. 1184, 152 L.Ed.2d 126 (2002) (conviction upheld where trial court entered acquittal but then submitted charge to jury because such reversal did not require retrial). See also Price vs. Vincent, ___ U.S. ___, 123 S.Ct. 1848, 1850, ___ L.Ed. ___ (2003) (reasonable for State court to conclude that judge's comments were not sufficiently final to terminate jeopardy). Furthermore, "a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact." United States v. Wilson, 420 U.S. 332, 345, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

The defendant also argues that the correction was improper under Mass. R.Crim.P. 25(a), 378 Mass. 896 (1979), because the rule requires that the judge decide a motion made at the close of the Commonwealth's evidence at the time the motion is made.5 The requirement of a prompt ruling "protects a defendant's right to insist that the Commonwealth present proof of every element of the crime with which he is charged before he decides whether to rest or to introduce proof in a contradiction or exoneration." Commonwealth v. Cote, 15 Mass.App.Ct. 229, 240, 444 N.E.2d 1282 (1983). This protection was honored. The defendant has not suggested that the initial allowance of the motion affected his trial strategy with regard to the other charges. Moreover, the Commonwealth did not introduce any additional evidence, and the defendant was provided the opportunity to reopen his case.

Additionally, the defendant has not indicated how the requirement precludes a judge from correcting a ruling. Compare Commonwealth v. Rice, 216 Mass. 480, 482-83, 104 N.E. 347 (1914) (no violation of double jeopardy protections by District Court judge's withdrawal of finding of guilt and declination of jurisdiction because case had not been ended at time judge withdrew guilty finding); Fine v. Commonwealth, 312 Mass. 252, 258, 44 N.E.2d 659 (1942) (judge has power to alter or amend his decision on motion for new trial at any time during pendency of proceedings before him).

Furthermore, the evidence was not insufficient as matter of law. Compare Commonwealth v. Ierardi, 17 Mass.App. Ct. 297, 303, 457 N.E.2d 1127 (1983) (no violation of right not to be put twice in jeopardy where judge indicated he would allow motion for required finding of not guilty but then permitted Commonwealth to reopen its case and enter stipulation into evidence). Contrast Commonwealth v. Zavala, 52 Mass.App.Ct. 770, 779, 756 N.E.2d 29 (2001) (Commonwealth may not reopen its case when evidence is insufficient as matter of law).

Finally, the defendant was not otherwise prejudiced by the ruling. The jury were not aware that the judge had allowed the motion and the correction of the ruling was made before closing arguments. The judge did not err by correcting her ruling in these circumstances.

b. Unlawful possession of a firearm (fourth offense). A jury-waived trial was held on the portion of the indictment which alleged that the defendant was a four-time offender of the firearms law. See G.L. c. 269, § 10(d). The defendant claims that the judge erred by relying on a Federal conviction for violating the "felon-in-possession" provisions of 18 U.S.C. § 922(g)(1) as one of the three...

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