Opinion
18-P-1420
11-06-2019
COMMONWEALTH v. MAURICE BENNETT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Maurice Bennett, appeals from a conviction of carrying a firearm without a license, G. L. c. 269, § 10 (a), and a sentencing enhancement pursuant to the Armed Career Criminal Act (ACCA), G. L. c. 269, § 10G. On appeal, the defendant challenges the order denying what the defendant presented as a motion to dismiss the indictment that alleged the sentencing enhancement, and the sufficiency of the evidence of constructive possession of the firearm at issue in the underlying charge. We affirm.
The ACCA indictment alleged a violation based on three prior offenses, implicating G. L. c. 269, § 10G (c). The defendant was ultimately convicted of a violation of § 10G (b), based on two prior offenses.
As we discuss infra, we do not agree that the motion is properly considered a motion to dismiss.
1. Background. In January 2014, the defendant was indicted on the charges identified supra. The only evidence presented to the grand jury in support of the ACCA violation was certified copies of four prior convictions: assault and battery by means of a dangerous weapon (ABDW) in 2008; carrying a firearm, and assault and battery on a police officer (ABPO) in 2007; and a 1999 juvenile adjudication of delinquency. The Commonwealth did not present the grand jury with evidence of the facts underpinning any of those convictions. The trial of the indictments was bifurcated. After a three-day jury trial in September and October 2015, during which the defendant made timely motions for a required finding of not guilty, the defendant was convicted of violating § 10 (a), carrying a firearm without a license.
The Commonwealth did not ultimately rely on either the juvenile adjudication or the 2007 conviction for carrying a firearm as predicate offenses for the ACCA sentencing enhancement. See Commonwealth v. Rezendes, 88 Mass. App. Ct. 369, 370 (2015) (juvenile delinquency determination as ACCA predicate must involve use of "deadly," and not merely "dangerous," weapon). The defendant's probable cause challenge is limited to his prior conviction for ABPO.
2. ABPO conviction as predicate offense. a. Motion to preclude evidence of prior offenses. In February 2016, and again in August 2016, after the defendant's conviction on the first indictment, but before trial on the sentencing enhancement in the second indictment, the defendant moved unsuccessfully to preclude the Commonwealth from introducing at the trial of the ACCA indictment evidence of any of the prior convictions on which that indictment was based. With respect to the adult convictions, the defendant argued that because "purposeful conduct is the norm" in an ABPO charge, that charge must necessarily be considered under the "residual clause" of the ACCA, a clause that the United States Supreme Court has deemed unconstitutional. See Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Neither motion challenged the existence of probable cause for the ACCA indictment, nor did the defendant ever seek a bill of particulars. See Mass. R. Crim. P. 13 (b) (1), as appearing in 442 Mass. 1516 (2004).
On November 3, 2016, having waived his right to a jury trial on the ACCA sentencing enhancement, the defendant stipulated to the fact of the ABDW and ABPO convictions on which his indictment was based. At trial, in addition to entering that stipulation in evidence, the Commonwealth offered testimony that the ABPO conviction was based on the defendant's pushing a police officer with a "two-handed shove." The judge found the defendant guilty of the ACCA violation, based on the ABDW and ABPO convictions. The judge sentenced the defendant to the minimum mandatory sentence of ten years to ten years and one day. See G. L. c. 269, § 10G (b).
This extrinsic evidence was offered to prove that the assault and battery was harmful, rather than merely offensive, in order to qualify the offense as a violent crime for the purposes of the sentencing enhancement. See Commonwealth v. Widener, 91 Mass. App. Ct. 696, 702 (2017) (where prior conviction alleged as predicate for ACCA sentencing enhancement "was under a broad statute encompassing multiple crimes, not all of which [were] violent," court may consider extrinsic evidence). The defendant does not challenge the sufficiency of that evidence.
The defendant's February 2016 motion to preclude use of the prior convictions at the trial on the ACCA sentencing enhancement did not include a claim that the ACCA indictment was not supported by probable cause, nor, tellingly, did the second, nearly identical, motion that he filed to preclude those convictions five months after argument on the first motion. The argument was waived. See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004) (grounds not stated in pretrial motion "which reasonably could have been known at the time a motion is filed shall be deemed to have been waived"). See also Commonwealth v. Holley, 476 Mass. 114, 119-120 (2016) (objection to grand jury procedure waived where not raised before conviction); Commonwealth v. Cohen, 456 Mass. 94, 105-106 (2010) (structural errors may be waived). Accordingly, we review the defendant's conviction on the ACCA indictment here for a substantial risk of a miscarriage of justice. See Holley, 476 Mass. at 120.
The fact that, in arguing the February 2016 motion, defense counsel made passing reference to his view that the ACCA indictment was not supported by probable cause does not persuade us that the issue was raised for appellate purposes.
While the Commonwealth's evidence before the grand jury included only the certified convictions for the ABPO, and no evidence of the facts on which the conviction was based, the same was not true at trial. There, the Commonwealth offered evidence from which the judge could have found, as he did, that the conviction stemmed from the defendant's "two-handed shove" of an officer as the defendant attempted to flee from the police. That evidence was sufficient to show that the assault and battery on the officer was a "harmful battery," and thus a "violent crime" for the purposes of the sentencing enhancement. See Commonwealth v. Wentworth, 482 Mass. 664, 681 (2019) (defendant's striking girlfriend's face and shoving her onto bed evidence of "harmful battery"). We discern no substantial risk of a miscarriage of justice in affirming the ACCA conviction.
The absence of detail at the grand jury is not surprising in light of the fact that, at the time, ABPO appeared to qualify as a "violent crime" for ACCA purposes under the "residual clause" of G. L. c. 140, § 121. While the Supreme Judicial Court invalidated that clause in Commonwealth v. Beal, 474 Mass. 341, 349-351 (2016), that decision postdated the grand jury proceedings in this case.
b. Motion to correct illegal sentence. On March 12, 2018, the defendant moved pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), to correct an illegal sentence, arguing for the first time that the Commonwealth's evidence before the grand jury on the ACCA charge failed to establish probable cause that the ABPO conviction was a "violent crime." See Commonwealth v. Mora, 477 Mass. 399, 406-408 (2017) (for ACCA predicate offense under "physical force" clause, Commonwealth must demonstrate probable cause that offense was "violent crime"). The judge denied the motion, treating it as waived by the defendant's failure to raise the issue of probable cause before the grand jury until after his convictions on the indictments in this case. The mere fact that a pretrial (or trial) issue resulted in a sentence does not immunize it from waiver, nor is there any support for the defendant's assertion that a want of probable cause before the grand jury deprives the Superior Court of subject matter jurisdiction. Accordingly, we review the defendant's claim under the same substantial risk of a miscarriage of justice standard as we did the defendant's argument for dismissal, and for the same reasons, affirm the denial of the motion.
In doing so, we need not and do not reach the question whether the defendant's motion under rule 30 (a) for release from unlawful restraint was the proper vehicle for challenging the sufficiency of the indictment, rather than the legality of the sentence that the judge imposed. See Commonwealth v. Walters, 479 Mass. 277, 280 (2018) (illegal sentence one which exceeds statutory maximum for offense or is otherwise "premised on a major misunderstanding by the sentencing judge as to the legal bounds of his authority").
3. Sufficiency of the evidence. The defendant's final challenge is to the sufficiency of the evidence of constructive possession of a firearm. To permit a finding of constructive possession, the evidence must be sufficient to allow the fact finder to infer that the defendant had both knowledge of the item and the ability and intention to exert control over it. See Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 680 (2006). The required showing may be met with circumstantial evidence. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980). While a defendant's mere presence where a firearm is found is not enough to show ability and intention to exercise control, "presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.'" Commonwealth v. Summers, 93 Mass. App. Ct. 260, 262 (2018), quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977). See Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019), quoting Commonwealth v. Ortega, 441 Mass. 170, 174 (2004) ("our cases emphasize the need for 'other incriminating evidence' -- a so-called 'plus factor' -- in addition to evidence of proximity").
Reviewing the evidence in this case under the Latimore standard, we conclude that it was sufficient. See Commonwealth v. Latimore, 378 Mass 671, 677 (1979). Viewed in the light most favorable to the Commonwealth, the prosecution's evidence established that on October 3, 2013, the defendant sent a text message to his girlfriend, Jennifer DiBella, asking her to bring him a gun that he had left at DiBella's home., After confirming that she understood his request, she complied, and drove to Lynn to meet the defendant. When she arrived in Lynn, the defendant, who was on foot, came up to her car and reached inside to take the gun. However, after telling DiBella that "[t]he cops were watching," he ran from the car, leaving the gun in the vehicle. The gun, then on top of DiBella's purse on the floor of the car, was plainly visible through the passenger's side window.
The text message was, "Bring da one n da case 2 me please."
The confirming circumstances, including DiBella's familiarity with the subject matter of the texts at issue, the fact that the defendant had made a similar request by text message several days earlier to which it appears that she responded, her knowledge that the defendant's cell phone number was the same as that from which the texts originated, her familiarity with the defendant's communication style, and confirmation that after his arrest, the defendant continued to use the originating cellular number as his own, were sufficient to authenticate the text communications at issue. See Commonwealth v. Purdy, 459 Mass. 442, 447-449 (2011); Commonwealth v. Alden, 93 Mass. App. Ct. 438, 440-441 (2018). The messages were admitted in evidence.
DiBella responded by text message consisting of a gun emoji, followed by a question mark. An emoji is "any of various small images, symbols, or icons used in text fields in electronic communication (as in text messages, e-mail, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/emoji [https://perma.cc/QUC5-SA8E].
The evidence amply supported the defendant's constructive possession of the gun. The defendant's directing DiBella to bring him a gun that, according to DiBella, the defendant had left at her home, is evidence of the defendant's knowledge of the gun, as well as of his ability and intention to exercise control over it. See Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997) (defendant's statement to another indicating ownership of contraband is evidence of possession); Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985) ("Proof of possession . . . may be established by circumstantial evidence, and the inferences that can be drawn therefrom").
That the defendant fled from DiBella's car after reaching inside lends further support to the conclusion that he knew that the gun was there. See Summers, 93 Mass. App. Ct. at 264 (flight considered "plus" factor "supporting inference" of intent to "exercise dominion and control over . . . contraband").
Judgment affirmed.
Order denying postconviction motion affirmed.
By the Court (Ditkoff, McDonough & Hand, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 6, 2019.