Commonwealth v. Than
| Decision Date | 04 October 2004 |
| Citation | 442 Mass. 748,817 NE 2d 705 |
| Parties | COMMONWEALTH v. SANN THAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Peter A. D'Angelo, Assistant District Attorney, for the Commonwealth.
Debra S. Krupp, Committee for Public Counsel Services, for the defendant.
A jury of six in the District Court convicted the defendant of possession of a firearm (a Colt .45 caliber semi-automatic handgun) without a license, in violation of G. L. c. 269, § 10 (a). Police officers discovered the handgun protruding from under the front passenger seat of an automobile in which the defendant attempted to flee after running from a brawl outside Shooters Sports Bar in Dracut. On appeal, the defendant argued that his pretrial motion to dismiss should have been granted because the Commonwealth destroyed potentially exculpatory evidence when it conducted ballistics testing on the handgun in violation of a court order to preserve fingerprint evidence. The defendant also challenged the sufficiency of evidence allowing the jury to find that he constructively possessed the handgun. Finally, the defendant claimed that the judge's (unobjected to) instructions to the jury on the elements of constructive possession were so confusing that they gave rise to a substantial risk of a miscarriage of justice. The Appeals Court concluded that the motion to dismiss had been properly denied, but agreed with the defendant that the jury instructions were inadequate and likely to have caused a miscarriage of justice. Consequently, the Appeals Court reversed the defendant's judgment of conviction. See Commonwealth v. Sann Than, 59 Mass. App. Ct. 410, 414 (2003). We granted the Commonwealth's application for further appellate review, limited to the issues of the sufficiency of the evidence and the adequacy of the judge's instructions. We now affirm the judgment of conviction.
The evidence, considered in the light most favorable to the Commonwealth, permitted the jury to find the following facts. At approximately 1:30 A.M. on October 3, 1999, a fight involving twelve to fifteen people broke out in the parking lot of Shooters Sports Bar in Dracut. Three police officers1 arriving on the scene observed four males running from the disturbance. Several individuals in the crowd gestured to the officers, pointed at the four fleeing individuals, and shouted, "He's got a gun, he's got a gun." The officers immediately drew their service weapons and gave chase after the four men. Although the officers commanded the men several times to stop, the four continued running across the parking lot. The pursuit came to an end at the far corner of the parking lot, as the fleeing men approached a four-door white Honda Civic automobile, jumped in, and started the engine.
The officers caught up before the Honda began to move and while the driver's side door was still partially open. One officer stationed himself in front of the automobile on the driver's side, and ordered the person seated in the driver's seat (subsequently identified as the defendant) to show his hands. Although the officer repeatedly commanded the defendant to show his hands, the defendant did not comply, but instead kept his hands hidden from the officer's view. The defendant then leaned forward and over to the right. He sat straight back up in his seat and raised his hands. As the defendant sat up in his seat, the man in the front passenger seat made a forward movement. The defendant then showed his empty hands to the officer, and, keeping his hands in plain sight, got out of the automobile and was secured by police officers, along with his three companions, on the ground.
A subsequent search of the Honda revealed a handgun lying on the floor mat of the vehicle's front passenger side. The weapon was easily spotted because its entire handle, and a portion of the barrel, extended out from under the seat, in plain view of the officer conducting the search, who was standing outside of the open front passenger side door. The handgun was lying closer to the driver's side than to the window side of the floor mat and (the jury could reasonably infer) would also have been within the vantage point of anyone seated in the driver's seat, because the interior of the automobile was compact and only a small console area separated the two front seats. The officer knelt down and grabbed the handgun. He cleared the weapon by removing a round from the chamber, removed the magazine (which contained three more rounds), and then slid the handgun in his waistband. The defendant was charged by a complaint in the Lowell Division of the District Court Department with possession of a handgun without a license.2
1. The judge denied the defendant's motions for the entry of a required finding of not guilty presented at the close of the Commonwealth's case and at the close of all the evidence. The defendant argues that the Commonwealth's proof was insufficient to sustain the conviction because no rational jury could have determined, beyond a reasonable doubt, that the defendant, who was seated in the driver's seat of the vehicle, could have possessed the handgun found under the front passenger seat. We disagree.
The Commonwealth proceeded on the theory that the defendant constructively possessed the handgun. See Commonwealth v. Sespedes, ante 95, 99 (2004); Commonwealth v. Daley, 423 Mass. 747, 752 (1996). "Constructive possession" requires proof that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Sespedes, supra, quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989); Commonwealth v. Ortega, 441 Mass. 170, 174 (2004); Commonwealth v. Boria, 440 Mass. 416, 418 (2003); Commonwealth v. Garcia, 409 Mass. 675, 686 (1991); Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). The Commonwealth may prove knowledge of the contraband by circumstantial evidence, see Commonwealth v. Sespedes, supra, and the defendant concedes in his brief that the evidence warrants a reasonable inference to that effect. The evidence also warrants the reasonable inference that the defendant had the ability and the intention to exercise control over the handgun found in the vehicle.
The defendant's conviction was based on evidence that, as he and others fled from the disturbance outside the sports bar, a crowd of people yelled, "He's got a gun." When stopped by the police, the defendant first leaned forward and to the right before complying with the order to raise his hands. A loaded handgun was found protruding from under the passenger seat in the vehicle he was operating. It could be reasonably inferred that the defendant had hurriedly placed the handgun under the passenger seat before raising his hands to the police.3 This is not a case where the defendant was merely present in an automobile in which a handgun was found. See, e.g., Commonwealth v. Brown, 401 Mass. 745, 747 (1988); Commonwealth v. Bennefield, 373 Mass. 452, 453 (1977). His motions for a required finding of not guilty were properly denied.
2. We now consider the defendant's challenge to the judge's instructions on the elements of constructive possession. The defendant claims that the instructions require reversal because they contained a mixture of correct (requiring knowledge, ability to control, and intention to control) and incorrect instructions (requiring only knowledge and control, or only ability and intention to control) that rendered the charge "misleading and confusing." The defendant did not object to the instructions, so we review for any error that could have created a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750 (2000); Commonwealth v. Alphas, 430 Mass. 8, 13 (2000). Our duty is to look at "the charge as a whole to determine whether it fairly instructs the jury." Commonwealth v. Richardson, 429 Mass. 182, 185 (1999), quoting Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). Examining the charge in its entirety, we discern no error.
The judge correctly instructed the jury that in order to convict the defendant of the charge of unlawful possession of a firearm, the Commonwealth must prove, beyond a reasonable doubt: (1) possession or control of a handgun in a vehicle; (2) that the handgun met the legal definition of a firearm; and (3) knowledge, on the part of the defendant, that he possessed or controlled the handgun. The judge then cautioned the jury that "to establish that a firearm was under the defendant's control in a vehicle it is not enough for the Commonwealth just to prove that the defendant was present in the same vehicle as the firearm." To emphasize the latter point, the judge advised the jury, four times, in the language set forth below,4 that, in order to convict the defendant, the Commonwealth must prove that the defendant knew that the handgun was in the vehicle and that he had control (although not necessarily exclusive control) over it. Taken in context, these instructions could not have misled the jury because they plainly were intended to delineate the elements of knowledge and control and were used as a prelude to the instructions we next describe on constructive possession.5
The judge then told the jury that he was going to read them some definitions of possession and instructed as follows:
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