Commonwealth v. Mitchell

• Decision Date: 05 June 2019
• Docket Number: No. 17-P-1058,17-P-1058
• Citation: 95 Mass.App.Ct. 406,126 N.E.3d 118
• Parties: COMMONWEALTH v. Jonathan MITCHELL.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 406

126 N.E.3d 118

COMMONWEALTH

v.Jonathan MITCHELL.

No. 17-P-1058

Appeals Court of Massachusetts, Hampden.

Argued March 7, 2018.

Decided June 5, 2019.

Ian Stone for the defendant.

Amal Bala, Assistant District Attorney, for the Commonwealth.

Present: Meade, Rubin, Wolohojian, Agnes, & Neyman, JJ.¹

RUBIN, J.

Defendant Jonathan Mitchell was tried before a jury in Superior Court for the crimes of armed assault with intent to murder, G. L. c. 265, § 18 (b ) (count 1), assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c ) (i) (count 2), assault and battery by discharging a firearm, G. L. c. 265, § 15E (count 3), unlawful possession of a firearm, G. L. c. 269, § 10 (a ) (count 4), unlawful possession of a large-capacity feeding device, G. L. c. 269, § 10 (m ) (count 5), unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n ) (count 6), and unlawful possession of ammunition, G. L. c. 269, § 10 (h ) (1) (count 7). The jury acquitted him of all the assaultive charges, counts 1, 2, and 3, and of the charge of possession of a large-capacity feeding device, count 5. They convicted him of unlawful possession of a firearm, count 4, unlawful possession of a loaded firearm, count 6, and unlawful possession of ammunition, count 7.² At the Commonwealth's request, the judge dismissed the possession of ammunition conviction as duplicative of the loaded firearm conviction. Mitchell now appeals from his convictions of the two remaining counts. We affirm his conviction of unlawful possession of a firearm and reverse his conviction of unlawful possession of a loaded firearm.

Evidence. This case arose out of a shooting outside the Glo nightclub in Springfield in the early morning hours of April 22, 2016. The facts were disputed. According to Commonwealth witnesses, Mitchell and another man, Marquise Newsom, were arguing outside the club near a hot dog cart. Newsom pushed Mitchell, Mitchell pushed Newsom back, and Mitchell then pulled out a handgun from his belt and shot at Newsom four times. One of the bullets hit Newsom's thumb. After firing the shots, Mitchell put the gun back in his waistband area and fled, and was pursued by police officers who happened to be on the scene. The police apprehended him after his pant leg got stuck while he tried to jump a fence. The gun fell as Mitchell went over the fence, and police recovered the gun and thirteen live rounds of ammunition from it. A police officer testified for the Commonwealth that Mitchell and Newsom were members of rival gangs.

According to police testimony, Newsom was not cooperative in the investigation. At the scene, he would tell the police only that he was shot in front of a hot dog cart, and he refused to give the police any information at the hospital to which he was taken after the incident. The police were unsuccessful in serving a summons on him, and an uncle told an officer that he did not know Newsom's phone number or where he was.

Mitchell testified to an entirely different version of events. According to Mitchell, Newsom approached him, reached into his own waistband, and drew a gun. Mitchell immediately "grabbed [Newsom's] hand with both my hands," attempting to wrest the firearm from it. Mitchell testified that he had one hand on the hand of Newsom that was holding the firearm, and the other hand wrapped around Newsom's fingers, one of which was on the trigger. During the ensuing struggle, the gun went off three times.³ Newsom let go of the gun and ran away. Mitchell ran away in the opposite direction but did not let go of the gun for fear that Newsom or one of Newsom's nearby friends, one Washdouble, might pick it up and shoot him. Mitchell did not know that the police were chasing him until after his pant leg got caught on the fence and he was apprehended. Mitchell denied being a member of any gang but admitted that, while he and Newsom were not "enemies," they were also "not friends" and had had a prior altercation.

Discussion. I. Voir dire question. Before jury voir dire, defense counsel objected to the prosecutor's proposal that prospective jurors be asked whether they could be fair and impartial despite the absence of testimony from the alleged shooting victim. The objection was overruled. During voir dire, the judge asked prospective jurors this question and, because of their answers, two prospective jurors were struck for cause. Mitchell argues that the dismissal of these two jurors violated his right to an impartial jury. Mitchell also argues that the objection to the question prior to voir dire preserved his claim of error; the Commonwealth argues that it did not.

Whether or not the objection to the question preserved the issue for review, we are not persuaded that there was an abuse of discretion in this case in the judge asking the prospective jurors whether the absence of the alleged victim's testimony would affect their ability to be fair and impartial. Under Commonwealth v. Gray, 465 Mass. 330, 990 N.E.2d 528 (2013), a judge may ask a prospective juror whether "the absence of DNA or fingerprint evidence [would] prevent [the prospective juror] from fairly evaluating evidence in this case." Id. at 340 n.10, 990 N.E.2d 528. The purpose of the question in Gray was to ferret out jurors susceptible to the "CSI effect," a worry that jurors who watch forensic science television programs like "CSI" would hold prosecutors to an unreasonably high standard of proof. Id. at 338, 990 N.E.2d 528. Despite being "skeptical" of the need for such questions, id. at 339, 990 N.E.2d 528, the Supreme Judicial Court held that it was not an abuse of discretion for a judge to ask them. Though we are even more skeptical of the need for the question asked here, which does not relate to forensic proof, we likewise discern no abuse of discretion in this case, where the question was "tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence." Id. at 340, 990 N.E.2d 528, quoting Commonwealth v. Perez, 460 Mass. 683, 691, 954 N.E.2d 1 (2011). We think, though, such questions should be used at least as "sparingly" as those in Gray, supra at 339, 990 N.E.2d 528, and that the better practice might be not to use them at all.

II. Closing argument. Mitchell next argues that the prosecutor's unobjected-to statement in closing that Mitchell "despised" Newsom because they were in rival gangs created a substantial risk of a miscarriage of justice. We disagree: the prosecutor's statement was based on a fair inference from the evidence that Mitchell and Newsom were in rival gangs, that they were "not friends," and that they had had a prior altercation.

III. Jury instructions. Mitchell contends that several jury instructions were either erroneously given or erroneously omitted.

A. Necessity. First, he claims that the judge failed to instruct the jury that the Commonwealth had the burden to prove absence of necessity beyond a reasonable doubt. This argument fails because the judge did so instruct: "The [d]efendant may take only such lawful action as is necessary to alleviate the danger. Where the issue of necessity is raised, the Commonwealth has the burden to prove the absence of necessity beyond a reasonable doubt."

B. Missing witness. Next, Mitchell argues that the judge erred by denying his request for a missing witness instruction, which he contends should have been given with respect to Newsom, who did not testify at trial. "A missing witness instruction is appropriate when a party ‘has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,’ and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667, 871 N.E.2d 455 (2007), quoting Commonwealth v. Anderson, 411 Mass. 279, 280 n.1, 581 N.E.2d 1296 (1991). Missing witness instructions should be given "only in clear cases." Saletino, 449 Mass. at 668, 871 N.E.2d 455, quoting Commonwealth v. Figueroa, 413 Mass. 193, 199, 595 N.E.2d 779 (1992). We will reverse only if the judge's failure to give such an instruction was "manifestly unreasonable." Saletino, 449 Mass. at 667, 871 N.E.2d 455.

Even though Newsom's testimony would have been helpful to the Commonwealth, the uncontroverted testimony at trial was that Newsom had been uncooperative with the Commonwealth and could not be located. In these circumstances, it was not manifestly unreasonable for the judge to decline to give the missing witness instruction.

Mitchell also argues, citing Commonwealth v. Smith, 49 Mass. App. Ct. 827, 733 N.E.2d 159 (2000), that, by permitting defense counsel to make a missing witness argument in closing, "the judge implicitly concluded that the foundational requisites [for the missing witness instruction] had been met." Id. at 830, 733 N.E.2d 159. This argument fails because, unlike in Smith, where defense counsel affirmatively obtained the judge's permission to make a missing witness argument, defense counsel here made the argument without asking for the judge's permission. The lack of a sua sponte decision to strike the relevant portion of defense counsel's closing does not constitute an implicit finding that the foundational requisites for the missing witness instruction were met. Neither does the judge's decision to strike, at the Commonwealth's request, defense counsel's statement in opening that Newsom did not appear because he knew that the gun was his.

C. Knowledge that the firearm was loaded. 1. The erroneous jury instruction. The jury were not instructed that they were required to find beyond a reasonable doubt that the defendant knew that the firearm he possessed was loaded, an essential element of the offense, in order to convict him of unlawful possession of a loaded firearm. They were instructed, rather,...