Commw. v. Brown, P-388

• Decision Date: 10 February 2000
• Docket Number: P-388
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH vs. RAYSHAUN J. BROWN(and two companion cases <A HREF="#fr1-1" name="fn1-1">1 ). 98- Plymouth County Argued:
• Court: Appeals Court of Massachusetts

737 N.E.2d 1 (Mass.App.Ct. 2000)

COMMONWEALTH vs. RAYSHAUN J. BROWN(and two companion cases¹).

98-P-388

Massachusetts Court Of Appeals

Plymouth County

Argued: February 10, 2000

Decided:October 19, 2000.

Evidence, Joint venturer, Constructive possession.

Complaints received and sworn to in the Plymouth Division of the District Court Department on March 14, 1996.

The case was tried before Daniel B. Winslow, J.

Lisa Siegel Belanger for Anthony Goodwin.

John Jr. Holmgren for Marcus Hurd.

Paul C. Brennan for Rayshaun J. Brown.

William McCauley for the Commonwealth.

Jacobs, Rapoza, & Gelinas, JJ

JACOBS, J.

Tried to a District Court jury, each of the defendants was convicted of four charges² based on possession of guns and ammunition. The defendants appeal from the ensuing judgments.

We reverse.

1. The evidence. At about 11 P.M. on March 13, 1996, Brockton police received three 911 telephone calls from individuals who reported hearing gunshots in their neighborhood. The first caller reported hearing arguing and shooting outside her home. The second caller reported hearing five or six shots fired, going to a window, and seeing three black men wearing "hoodies" running through a parking lot across the street from her, then running around the rear of a nearby house, emerging at the front, and entering the front door. Moments after this call the police received a third call from a woman who also reported hearing the shots and, while she was on line with the 911 operator, stated she heard someone banging on the door of the apartment next to her, which the police determined was located in the house referred to by the second caller.

In addition to several police officers who responded to the telephone calls, only the second caller testified at trial. Her testimony differed somewhat from her 911 call.³ She testified that she heard one gunshot different from the rest, and then several consecutive shots. She described the three men she saw from the window of her apartment as young black men, one "fairly light," all about five feet, eight inches tall, and about the same size. She further testified these men were wearing dark jeans, and that she saw one, and possibly two of them with hoods. She stated they were running fast, one with his hands down and the other two "like they were hugging themselves." This witness was not able to describe them further, and did not make an in- court identification.

The second caller also testified that, after first calling the police, she went back to the window. She saw two men come out of the house she had previously described, then go to an area at the side of that house where a dumpster and shed were located, remain there for about half a minute, then run back into the house through the front door. She described them as about five feet, eight or nine inches tall, wearing dark clothes, sweatshirts and jeans, one of them wearing a hood. She saw both of them standing two or three feet away from the dumpster, was unable to see whether they had anything in their hands, and did not see anything thrown into the dumpster. She briefly lost sight of one of them when he went to the area of the shed. She stated that there was "nothing different" about these two men from the three she had earlier observed going into the house.

After the police arrived, they entered the house and knocked on the front door of the apartment to which the third caller had referred. The police identified themselves, but obtained no response, although they could hear movement inside. Other police, stationed at the rear entrance, saw a woman with a young child hurriedly walk out of the rear door. There was evidence that this woman occupied the apartment and that her name was on the mailbox. Upon entering the living room of the apartment, the police found the defendants Brown and Hurd sitting on a couch, slouched down, and another man, Edward Vasquez, on a second couch, and the defendant Goodwin kneeling or sitting on the floor between the couches.⁴ The collective testimony of the police officers may be viewed as establishing that, when they encountered the three defendants, they were wearing dark clothing and sweatshirts or jackets with hoods. The officers also described Hurd as six feet or six feet, one inch tall; Brown about five feet, ten or eleven inches, Goodwin about five feet, seven or eight inches, and Vasquez as Hispanic and five feet, six or seven inches tall.

After ordering the men to lie down on the floor, the police searched the living room, and found a loaded 9 millimeter handgun under the couch where the defendants Hurd and Brown had been sitting. Searching outside the house, the police found a loaded, sawed-off shotgun in the dumpster and an unloaded .25 caliber handgun in the shed. There was evidence that three spent cartridges found nearby in the street had been fired from the .25 caliber handgun.

2. Discussion. The Commonwealth proceeded with two theories at trial. First, that each defendant could be found guilty of possession of one or more of the firearms as a joint venturer; and second, that each defendant also could be found guilty of constructive, if not actual, possession of a single firearm, even though there was no direct evidence connecting any one of the three defendants to any specific firearm seized. The judge essentially gave established instructions on possession, actual and constructive, and joint venture. Because the "theories of constructive possession and joint venture are alternative theories with which to connect an accused to the crime," Commonwealth v. Robinson, 43 Mass. App. Ct. 257, 261 (1997), we examine separately the application of these theories.

While there is support for an inference that the defendants ran from the area where gunshots were heard, that one or more of them had fired the .25 caliber handgun, and that they sought to conceal themselves from the police, they were not tried for any direct participation in the shooting. They were charged solely with unlawfully possessing guns and ammunition, and the Commonwealth treated the charges as presenting "a straight possession case." These are not crimes with additional elements, as for example, discharging a firearm within 500 feet of a dwelling in use (see G. L. c. 269, 12E). "There is no question that one may be found guilty as an accessory to a crime that involves possession as an element. To convict on a theory of accessorial responsibility, it is not necessary to show that the defendant himself possessed the [contraband], either actually or constructively, but it is frequently said that it is necessary to show that the defendant aided in the possession and in each other element of the substantive offense." Commonwealth v. James, 30 Mass. App. Ct. 490, 498-499 (1991) (citations omitted). "To establish liability under th[e] theory [of joint venture], it would not be necessary to prove that [a] defendant had possession -- actual or constructive," Commonwealth v. Pichardo, 38 Mass. App. Ct. 416, 416 n.1 (1995), but only that an identified defendant was accessory to another identified defendant in possessing a firearm. Here, there is no evidence that any specific defendant aided another defendant in firing, or gaining or maintaining possession of, the guns and thus no identified defendant can be linked as a joint venturer to possessing a specific weapon.⁵ Also, because there is no element other than possession in the substantive offenses charged, the defendants cannot be seen as jointly aiding each other in a further criminal enterprise involving possession. Compare Commonwealth v. Carmenatty, 37 Mass. App. Ct. 908 (1994); Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998). We conclude that a joint venture theory was inapplicable and should not have been submitted to the jury. The issue was preserved by the defendants' motions for required findings of not guilty. See Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 419 (1996). This case is analogous to Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 566 (1980), where the defendant was charged with conspiracy to possess with intent to sell an illegal substance. There we observed that, "as independent evidence of an agreement is lacking, that is to...