Commonwealth v. Summers

• Citation: 102 N.E.3d 977,93 Mass.App.Ct. 260
• Decision Date: 07 September 2017
• Docket Number: No. 16–P–1343,16–P–1343
• Parties: COMMONWEALTH v. Charles E. SUMMERS.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 260

102 N.E.3d 977

COMMONWEALTH

v.Charles E. SUMMERS.

No. 16–P–1343

Appeals Court of Massachusetts, Bristol..

September 7, 2017

May 25, 2018

Robert J. Galibois, II, Plymouth, for the defendant.

Robert P. Kidd, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Trainor, Vuono, Wolohojian, Milkey, Blake, & Singh, JJ.¹

BLAKE, J.

Following a jury-waived trial in the District Court, the defendant, Charles E. Summers, was convicted of carrying a firearm without a license and unlawful possession of ammunition.² The defendant appeals, contending that the evidence that he possessed these items was insufficient as a matter of law. We affirm.

Background. Taking the evidence, and the reasonable inferences to be drawn from it, in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), the Commonwealth presented the following facts. At 10:15 A.M. on August 3, 2015, Taunton police Officer Brett Collins pulled over a Kia Spectra automobile after "it failed to stop at [a] stop sign." As he approached the vehicle, Officer Collins saw the defendant, who was the sole occupant of the back seat, turn and look at him. He also observed a woman in the driver's seat and a man in the front passenger seat. Officer Collins recognized the defendant as someone with whom he was familiar, and the two exchanged greetings. On the seat next to the defendant was a cellular telephone.

Officer Collins obtained identification from the two people in the front compartment of the Kia, but not from the defendant. As Officer Collins "ran" the information in his cruiser, he learned that there was an outstanding warrant for the front seat passenger, Michael MacNamara.³ Officer Collins then noticed that the defendant was out of the Kia and walking toward him, holding a cellular telephone. The defendant told the officer that his son had fallen or was hurt and asked if he could leave. After getting Officer Collins's permission, the defendant began walking away from the area where the Kia was stopped. Immediately upon the defendant's departure from the scene, MacNamara began to yell and gesture toward the rear of the Kia, where the backpack containing the firearm eventually was located. The defendant then began to run and Officer Collins was unable to catch him.

Returning to the Kia, Officer Collins found that MacNamara had left the scene as well. The driver, who was still seated, directed the officer to the back of the Kia. On the floor of the back seat, behind the driver, was a backpack. Officer Collins opened the backpack, and found a .45 caliber Sig Sauer P220 handgun, a magazine for the gun, as well as .45 caliber bullets inside a sock that was tied at one end.

The following month, on September 1, 2015, the defendant was arrested on a warrant for firearm-related charges arising out of this incident. The defendant asked what the charges stemmed from. When advised what they were, the defendant said that "he didn't understand why he was being charged with the gun because the person who was in the car with him had a record as long as his" and had also "fled like he did."

Discussion. When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt" (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152, 718 N.E.2d 398 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475, 892 N.E.2d 805 (2008). Rather, the relevant " ‘question is 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. at 677, 393 N.E.2d 370, quoting from Jackson v. Virginia, supra. See Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 630, 933 N.E.2d 645 (2010).

Here, the Commonwealth's case against the defendant was presented on the theory of constructive possession, which requires the Commonwealth to establish the defendant's "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Sespedes, 442 Mass. 95, 99, 810 N.E.2d 790 (2004), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). A defendant's "knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial." Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). In constructive possession cases, a defendant's presence alone is not enough to show the ability and "intention to exercise control over the firearm, but presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ " Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).

The defendant relies predominantly on Commonwealth v. Romero, 464 Mass. 648, 652–659, 984 N.E.2d 853 (2013) (evidence of defendant's presence in automobile, which he owned and in which firearm was being passed around, insufficient to establish constructive possession). However, while the defendant's presence in the Kia itself, "without more, is not sufficient evidence ...[,] [p]resence in the same vehicle supplemented by other incriminating evidence, ... may suffice."

Commonwealth v. Sinforoso, 434 Mass. 320, 327, 749 N.E.2d 128 (2001), quoting from Commonwealth v. Garcia, 409 Mass. 675, 686–687, 569 N.E.2d 385 (1991). Here, we have significantly more than mere presence.

Taken in its totality, the evidence was sufficient to prove beyond a reasonable doubt that the defendant knew of the firearm and ammunition, and that he had the ability and intention to exercise control over them. The defendant was the sole rear seat passenger in the Kia Spectra. He was seated behind the front seat passenger and directly adjacent to the backpack, which was on the floor behind the driver. The defendant's cellular telephone was on the seat next to him, showing some intent to exercise dominion and control over the back seat compartment. The backpack⁴ was a mere two to three feet from the defendant, well within his reach.⁵ He had the most ready access to it. See Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936, 692 N.E.2d 103 (1998) (gun's location near defendant in car was proper consideration on question of dominion and control).

It is a fair inference from MacNamara's behavior—including shouting and yelling to Officer Collins and pointing to the back of the Kia—that he was reacting to the sudden realization that the defendant, having found a pretext to get permission from Officer Collins to leave the scene, had left the firearm and ammunition behind. In fact, a rational fact finder could find that it was MacNamara's protestations that caused the defendant to shift from leaving it, to fleeing it. Such a fact finder also could find that MacNamara, by affirmatively and eagerly drawing Officer Collins's attention to the backpack, made certain that the officer both found the contraband, and knew that the items belonged to the defendant.

In addition, a rational fact finder could find that the defendant engineered what can reasonably be construed to be a ruse, which allowed him to flee the scene and avoid being connected to the contraband. "False statements to police may be considered as consciousness of guilt if there is other evidence tending to prove the falsity of the statements." Commonwealth v. Vick, 454 Mass. 418, 424, 910 N.E.2d 339 (2009), quoting from Commonwealth v. Robles, 423 Mass. 62, 71, 666 N.E.2d 497 (1996). Here, Officer Collins allowed the defendant to leave the scene as he claimed he had a hurt or injured child. However, when Officer Collins was alerted by MacNamara to the backpack, the defendant ran from the scene and Officer Collins was unable to see or locate him. Indeed, it took approximately one month for the defendant to be arrested. The actions of the defendant may reasonably lead to the conclusion that the story of an injured child was just that, a story.

The fact that there was an outstanding warrant for the defendant for a motor vehicle violation does not alter the result. Officer Collins and the defendant were acquainted with one another and exchanged pleasantries during the initial encounter. Officer Collins had not previously arrested the defendant, and there was no reason to believe that the officer was somehow targeting the defendant to arrest him on the outstanding warrant. Officer Collins only asked the driver and MacNamara for identification, and agreed to let the defendant leave when he asked permission to do so.

Ultimately, the defendant's claim of an injured child allowed him to flee the scene. This effort to escape from the Kia and to leave the scene is redolent of guilt. Indeed, it is the defendant's behavior after the police arrived that permits an inference of the defendant's intent to exercise dominion and control of the contraband prior to the arrival of the police. Contrast Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781, 573 N.E.2d 1006 (1991) (defendant's response to police negated link to contraband).

Flight is often considered a "plus" factor supporting an inference that the occupant intended to exercise dominion and control over the illegal contraband. See Commonwealth v. Namey, 67 Mass. App. Ct. 94, 98–102, 852 N.E.2d 116 (2006). See also Commonwealth v. Sabetti, 411 Mass. 770, 778, 585 N.E.2d 1385 (1992) (evidence of constructive possession sufficient where defendant attempted to flee, demonstrating consciousness of guilt); Commonwealth...