Commonwealth v. Grayson

• Decision Date: 20 December 2019
• Docket Number: No. 19-P-258,19-P-258
• Parties: COMMONWEALTH v. Deshawn W. GRAYSON.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 748

139 N.E.3d 358

COMMONWEALTH

v.Deshawn W. GRAYSON.

No. 19-P-258

Appeals Court of Massachusetts, Suffolk..

Argued October 8, 2019.

Decided December 20, 2019.

James M. Fox for the defendant.

Kathryn Sherman, Assistant District Attorney, for the Commonwealth.

Present: Massing, Sacks, & Hand, JJ.

SACKS, J.

Is evidence that the defendant carried a loaded semiautomatic pistol in his waistband sufficient, without more, to prove beyond a reasonable doubt that he knew the pistol was loaded? Concluding that it is not, we reverse the defendant's conviction, after a jury trial, of carrying a loaded firearm without a license, G. L. c. 269, § 10(n ). We affirm, as supported by sufficient evidence, his convictions of carrying a firearm without a license and of trespassing.¹ See G. L. c. 269, § 10(a ) ; G. L. c. 266, § 120.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. At about 7 P.M. on a July evening in 2018, Boston Police Detective Ishmael Henriquez and three other detectives were driving through Dorchester, looking for a young man for whom they had an arrest warrant. The detectives spotted the man on a bicycle, accompanied by another young man, later identified as the defendant, also on a bicycle. The detectives drove to a spot a few blocks ahead of the men and parked. As the men approached on their bicycles, Henriquez's partners got out of the cruiser and stopped and arrested the man for whom they had a warrant.

In the meantime, the defendant, in Henriquez's words, "attempted to flee" on his bicycle, steering with one hand while clutching his waistband² with the other. Based on Henriquez's training about the characteristics of armed persons, Henriquez was alert to the possibility that the defendant was carrying a firearm.

After riding past two houses, the defendant attempted to turn onto a side street but, continuing to steer with only one hand, lost control and fell off his bicycle. He broke his fall with one hand, keeping the other on his waistband. Henriquez pursued on foot and saw the defendant run down a driveway toward the rear of a house, continuing to clutch his waistband. Behind the house, the defendant, still holding his waistband, climbed over a five- or six-foot wooden fence,³ breaking it in the process, and entered an adjacent back yard that in turn bordered on other back yards. Henriquez attempted to follow, but a large dog appeared, causing Henriquez to suspend the chase and lose sight of the defendant.

Henriquez contacted his partners and other officers by radio and arranged for them to set up a perimeter to ensure that no one could leave the area of back yards without being observed.⁴ The detectives began to search the yards. Within ten minutes, on the far side of the yard that the defendant had entered by climbing over the fence, they found a white sock at the base of a second fence, approximately four feet tall. Although the sock was knotted closed, they could see that it contained an object shaped like a firearm. Just on the other side of the fence, in another yard, they found a pair of discarded sneakers.

A further search located the defendant hiding in a back yard a few houses down the block. He was wearing loose-fitting sweatpants. He was not wearing any shoes, and on cross-examination Henriquez agreed that one could infer the defendant had "r[u]n out of his sneakers" because he was "going so fast." The defendant was arrested and frisked; no contraband was found. Nor was any other contraband located in any of the back yards searched that day.

The object inside the knotted sock proved to be a semiautomatic pistol, loaded with a magazine capable of holding eight rounds of ammunition and containing seven. No usable fingerprints were found on any of the items. A police firearms examiner found the pistol to be operable and to have a barrel length of 3.75 inches.

The examiner further testified that, unless the pistol's slide were open, there would be no way to tell if the pistol was loaded simply by looking at it.⁵ To make that determination, one would have to attempt to fire it, or to remove the magazine to see if it contained ammunition. Henriquez agreed; he contrasted a pistol to a revolver, in which ammunition would be visible in the cylinder before being rotated into firing position. Henriquez further agreed that "in this case, if [he] were to be given that weapon not knowing anything about it, [he] couldn't tell if it was loaded or unloaded."

Discussion. The defendant challenges the sufficiency of the evidence underlying each of his three convictions.⁶ We address them in turn, asking "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." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. Possession of firearm. The defendant first argues that there was insufficient evidence that he possessed the firearm. We are not persuaded. The defendant fled the police, clutching an item in his waistband, an action that Henriquez testified was characteristic of persons carrying firearms. The item was sufficiently important to the defendant that he devoted one hand to maintaining possession of it while steering (and falling off) his bicycle and while climbing over (and breaking) the fence. The firearm was found next to another fence along the path of his apparent flight. Shoes inferentially belonging to him were found just on the other side of that fence. His attempt to hide from the police gave rise to a reasonable inference of consciousness of guilt, as did his initial, unprovoked flight. No other contraband was located in the area that might have explained his flight, nor was anyone else seen leaving the area. These circumstances, taken together, were sufficient to allow the jury to conclude that the defendant knowingly possessed the firearm. Cf. Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 552-553, 32 N.E.3d 906 (2015) (evidence of possession of firearm sufficient where defendant fled when officers approached, firearm and defendant's clothing were found along path of his flight, and, when apprehended, defendant lied to police about circumstances).

2. Knowledge that firearm was loaded. "[T]o sustain a conviction under G. L. c. 269, § 10(n ), the Commonwealth must prove that a defendant knew the firearm he or she possessed was loaded."

Commonwealth v. Brown, 479 Mass. 600, 601, 97 N.E.3d 349 (2018). If "the Commonwealth present[s] no evidence ... that could allow any rational trier of fact to find beyond a reasonable doubt that the defendant knew the firearm was loaded, the conviction of possession of a loaded firearm without a license cannot stand." Id. at 601-602, 97 N.E.3d 349. In Brown, "it was not possible to discern merely by observation whether the pistol ... was loaded; the magazine was inserted inside the handle and was not visible." Id. at 608, 97 N.E.3d 349. Absent any other evidence that the defendant knew the firearm was loaded, the court held the evidence insufficient. Id. at 609, 97 N.E.3d 349. See Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 748, 109 N.E.3d 508 (2018) (same).

More recently, we held in Commonwealth v. Resende, 94 Mass. App. Ct. 194, 201, 113 N.E.3d 347 (2018), that, although it was a "close case," id. at 200, 113 N.E.3d 347, the evidence was sufficient to prove beyond a reasonable doubt that the defendant knew the firearm he possessed was loaded. There we said:

"Unlike the facts in Brown, ... the defendant, in the case before us, was found with the firearm in his waistband. A commonsense inference from that fact alone is that a person would check to see if the firearm was loaded before putting it in his waistband. This rational inference is strengthened by the additional fact that the defendant admitted that he had some familiarity with firearms. In addition, the inference that the defendant was aware the firearm was loaded is strengthened even further by the evidence that the defendant was alone in the nighttime. Finally, the fact finder could have found that moments before the police arrived, the defendant had been threatening someone and made reference to a firearm. These facts, in combination, permit an inference and a finding beyond a reasonable doubt that the defendant was aware that the firearm found in his waistband was loaded" (emphasis added).

Id. at 200-201, 113 N.E.3d 347. Importantly, although it was a reasonable inference that a person carrying a firearm in his (or her) waistband would know whether it was loaded,⁷ we did not rest our decision on that inference alone. Rather, there were additional circumstances that, "in combination" with the inference just mentioned, permitted the jury to find the knowledge element beyond a reasonable doubt.⁸ Id. at 201, 113 N.E.3d 347.

Here, in contrast, we have only the "commonsense inference" that the defendant would have "check[ed] to see if the firearm was loaded before putting it in his waistband." Id. at 200, 113 N.E.3d 347. The Commonwealth's brief offers nothing more.⁹ This case is missing the three additional factors that in Resende, despite being a "close case," pushed the evidence over the line of sufficiency: there was no evidence that the defendant here was familiar with firearms, or that he carried the pistol while alone in the nighttime,¹⁰ or that he had threatened anyone and mentioned a firearm. This case also lacks any evidence that the pistol had been fired while in the defendant's possession,¹¹ or that any ammunition was separately recovered from the defendant's person or belongings,¹² or that the pistol's loaded status would have been evident merely by looking at it,¹³ or that the defendant made any other statement indicative of knowledge.¹⁴ Moreover, the pistol here...