Com. v. White

• Decision Date: 11 August 2008
• Docket Number: SJC-10102
• Citation: 891 N.E.2d 675,452 Mass. 133
• Parties: COMMONWEALTH v. Chevasse WHITE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

891 N.E.2d 675

452 Mass. 133

COMMONWEALTH v. Chevasse WHITE.

SJC-10102

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 2008.

Decided August 11, 2008.

Debra S. Krupp, Committee for Public Counsel Services, Boston, for the defendant.

Macy Lee, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

A jury in the Superior Court convicted the defendant, Chevasse White, of unlawful possession of a firearm in violation of G.L. c. 269, § 10 (a).¹ He appealed, claiming that the evidence was insufficient to support the conviction and that the trial judge erred in failing to instruct the jury on good faith error in identification. In an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court reversed, concluding that there was insufficient evidence connecting the defendant to a gun recovered at the crime scene. Commonwealth v. White, 70 Mass.App.Ct. 1104, 874 N.E.2d 506 (2007). We granted the Commonwealth's application for further appellate review, and we affirm the judgment of the Superior Court.

Background. The charges against the defendant arose in connection with an apparent gun battle outside a building in the Jamaica Plain section of Boston that housed a laundromat and a car wash. Since sufficiency of the evidence is in issue and affects the challenged instruction as well, we summarize the trial testimony. An eyewitness, Alice McLaughlin, who was standing across the street from the building, heard numerous gunshots coming from the area of the car wash and saw people "diving on the ground, running for cover, hiding behind things." When the gunfire had died down, she saw two young black men in front of the laundromat. One of the men was holding a gun that she saw him put in the waistband of his pants. She described this man as wearing a "black Fubu² jacket with white lettering on it."³ The men then walked toward the rear of the laundromat and car wash. At the time she saw the man with the gun, the witness was approximately twenty-five feet from the men, and her view of them was unobstructed.

Officer Edwin Guzman and his partner arrived at the scene in the immediate aftermath of the gunfire. They had been traveling on Washington Street in a police cruiser when they observed a man outside the car wash crouching down, nervously trying to signal them. When they stopped, the man told them that a shooting had just taken place and that the persons involved had run to the rear of the car wash. Guzman reported the shooting to the police operations division, and he and his partner headed on foot in the direction in which the men had fled. When they got to the rear of the car wash, they encountered the defendant and his cousin coming out of an exit door. The door was at the end of a narrow hallway that ran the length of the building.

The defendant was wearing a black jacket with the letters "FB" on the back. A pat-down of the defendant revealed that he was unarmed. The defendant and his cousin were brought to the front of the car wash, where McLaughlin, who by then had been interviewed by another officer, identified the man with the Fubu jacket as the man she had seen with the gun.⁴

Approximately twenty minutes later, a working firearm was recovered from an air vent in the hallway from which the defendant and his cousin had exited. Another working firearm was found on a street near the car wash. No fingerprints were recovered from the weapons, however, and none of the bullets, bullet fragments, or shell casings from the scene could be linked to either weapon.

The defendant did not testify; the only defense witness was his mother, who explained that the defendant was living with her at the time of the incident and that he and his cousin had gone to the car wash that day. In her opening statement and closing argument, defense counsel contended that McLaughlin was mistaken in believing that the defendant had a gun and that the police had failed to investigate the incident thoroughly.

Discussion. 1. Sufficiency of the evidence. In reviewing a claim of insufficient evidence, we consider "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, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Circumstantial evidence is competent to establish guilt beyond a reasonable doubt, Commonwealth v. Marshall, 434 Mass. 358, 361, 749 N.E.2d 147 (2001), and reasonable inferences may be drawn from the evidence. Commonwealth v. Reaves, 434 Mass. 383, 389-390, 750 N.E.2d 464 (2001).

To sustain a conviction under G.L. c. 269, § 10 (a), the Commonwealth must prove that the defendant knowingly possessed a firearm without either being present in his residence or place of business or having in effect a license to carry firearms or a firearm identification card.⁵ The Commonwealth must prove that the gun the defendant possessed met the definition of a working firearm set forth in G.L. c. 140, § 121, that is, that it had a barrel less than sixteen inches long and was capable of discharging a bullet. G.L. c. 269, § 10 (a). Since McLaughlin did not describe the gun (and thereby potentially establish that the barrel was of the requisite length) or see the defendant fire it (and thereby potentially establish that it was capable of firing), the defendant could not be convicted unless the evidence was sufficient to establish that he had possessed one of the firearms recovered from the scene and later tested by the Commonwealth.

The evidence, and the reasonable inferences to be drawn therefrom, were sufficient to convict the defendant. An eyewitness observed a man, later identified as the defendant, holding a gun; the same man was seen coming from the hallway of the car wash, without the gun; a gun was discovered shortly thereafter in the area from which the defendant had recently emerged. A jury could reasonably infer that the defendant had placed the gun in the air vent while he was in the hallway. It is true that other inferences could be drawn from this evidence, for example, that the gun was placed in the air vent at some earlier date, or that someone other than the defendant placed it there during or immediately after this incident. However, "[a]n inference drawn from circumstantial evidence `need only be reasonable and possible; it need not be necessary or inescapable.'" Commonwealth v. Bush, 427 Mass. 26, 30, 691 N.E.2d 218 (1998), quoting Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). The Appeals Court correctly noted that a conviction may not rest upon "the piling of inference upon inference or conjecture and speculation." Commonwealth v. Armand, 411 Mass. 167, 170, 580 N.E.2d 1019 (1991). However, we disagree with the Appeals Court's conclusion that this is such a case. We do not require that every inference be premised on an independently proven fact. Commonwealth v. Dostie, 425 Mass. 372, 375-376, 681 N.E.2d 282 (1997). The inference here is reasonable.

2. Jury instruction. Because of its conclusion on the sufficiency of the evidence, the Appeals Court did not reach the issue whether the judge's failure to instruct the jury on the possibility of good faith error in identification, see Commonwealth v. Pressley, 390 Mass. 617, 619, 457 N.E.2d 1119 (1983), was reversible error.⁶ We conclude that while the failure so to instruct was error, a new trial is not required.

We agree that the defendant was entitled to the instruction. There was evidence that the defendant came out of the hallway next to the car wash, and there was evidence that a firearm was recovered from that hallway. The central issue regarding the instruction was the accuracy of McLaughlin's observation that it was the defendant whom she saw with a gun in his hand. While the focus of the cross-examination of McLaughlin was somewhat unclear, we construe that questioning as attacking the accuracy of the identification. Defense counsel stated in her closing argument, "Just because you're certain doesn't mean you're right. [McLaughlin] was so certain but she was wrong." Between the cross-examination and the closing, it is plain that the accuracy of the identification was at issue. This is not a case where, for example, the defendant was known to the witness, thus requiring a conclusion that the witness was either accurate or was lying. See id. Here, the witness could well have believed she was correct, but her belief might have been mistaken. The Pressley instruction was requested and the failure to give it was error.

To determine the consequences of that error, we consider whether the issue was properly preserved for appellate review. Specific requests for jury instructions must be brought clearly to the judge's attention, see Commonwealth v. Thompson, 23 Mass.App.Ct. 114, 116, 502 N.E.2d 541 (1986), so that the judge has an opportunity to correct any error before the jury retire to deliberate. See Commonwealth v. Matos, 394 Mass. 563, 565, 476 N.E.2d 608 (1985). This avoids the necessity of a new trial to correct an error that could have been avoided in the first instance. Commonwealth v. Keevan, 400 Mass. 557, 563, 511 N.E.2d 534 (1987).

In this case, the defendant presented a written request for jury instructions at the end of the trial. In a conference with counsel, the judge reviewed the list of requested instructions, indicating whether he would give each one. When he reached the requested instruction on good faith error in identification (the Pressley instruction), the judge stated, "Well, I'm not going to give it in the terms that you've typed it up on number 6, mistaken identification and identification witness certainty" (emphasis added). The...