Opinion
No. 14–P–55.
06-03-2016
COMMONWEALTH v. Carl EDWARDS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Carl Edwards, appeals from convictions of possession of a firearm without a license, G.L. c. 269, § 10(a) ; possession of ammunition without a license, G.L. c. 269, § 10(h) ; and carrying a loaded firearm, G.L. c. 269, § 10(n). On appeal, he argues that: (1) he was denied his Sixth Amendment right to the counsel of his choice when the trial judge denied a continuance of the trial; and (2) the facts were insufficient to prove he had constructive possession of the firearm. We affirm.
The defendant was found not guilty of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A.
Continuance The defendant moved to substitute counsel and continue the trial date the day before trial was scheduled to begin, and a week after the pretrial conference at which all parties reported that they were ready for trial. At the time the motion was filed, the case was approximately three years old. A previous trial had ended in a mistrial a year earlier. On March 11, 2013, the defendant appeared and orally moved, over the Commonwealth's objection, that retained counsel be allowed to appear. The motion judge, who was also the trial judge, agreed to allow the motion provided that substitute counsel would be ready for trial the following day. The judge also indicated that if that were infeasible, she would allow retained counsel to sit as second chair. Substitute counsel declined, and appointed counsel represented the defendant.
The oral motion was heard twice on March 11, 2013. At the first hearing, the defendant's proposed substitute counsel and the Commonwealth were present. Later in the day, the defendant's trial counsel appeared and the motion was reargued.
We review a denial of a motion for continuance for an abuse of discretion, considering all of the circumstances, including the defendant's asserted reasons for the motion. See Commonwealth v. Cruz, 456 Mass. 741, 747–748 (2010). The Sixth Amendment to the United States Constitution protects a defendant's right to be represented by the counsel of their choice. See United States v. Gonzalez–Lopez, 548 U.S. 140, 144 (2006). That right, however, is not absolute. See Commonwealth v. Delzacruz, 463 Mass. 504, 510–511 (2012) (finding no abuse of discretion where defendant moved to allow new counsel to appear two days before trial, and where there was no harm to defendant to maintain his current representation). The trial judge is afforded wide latitude in properly weighing the defendant's Sixth Amendment right to counsel of choice against concerns of fundamental fairness and the demands of the court's calendar. See United States v. Gonzalez–Lopez, supra at 152.
The judge considered trial counsel's experience and competence at the first trial, his concomitant preparedness for the second trial, the difficulty the Commonwealth faced in trying the case in the first instance, the Commonwealth's objection, and the long period of time the case had remained on the court's docket. She concluded that the defendant failed to show any reason that appointed counsel could not provide adequate representation. There was no suggestion of any insufficiency of trial counsel or any impairment of the relationship between trial counsel and the defendant and her decision did not deprive the defendant of counsel “who has had [a] reasonable opportunity to prepare a defense.” Commonwealth v. Delacruz, supra at 509, quoting from Commonwealth v. Miles, 420 Mass. 67, 85 (1995). The judge did not abuse her discretion when she denied the continuance.
The defendant contends that there is no factual basis for the judge's suggestion that the motion was a delaying tactic filed by a defendant who was not in custody. We have not relied upon this aspect of the judge's rationale.
Sufficiency. The trial judge did not err in denying the defendant's motion for a required finding of not guilty. The Commonwealth proceeded against the defendant on a theory of constructive possession of the firearm and ammunition. In order to prove constructive possession, the Commonwealth bears the burden of proving “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). “[P]resence alone cannot show the requisite knowledge, power, or intention to exercise control over [contraband], but presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ “ Commonwealth v. Romero, supra, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). A defendant's subjective intent is ordinarily not susceptible to direct proof, but may be proven by circumstantial evidence and the reasonable inferences drawn therefrom. See Commonwealth v. Brzezinski, supra.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), the jury could have found the following facts. The car the defendant was driving had been used in a drive-by shooting minutes before it was stopped. Someone yelled, “Yo,” the victim ran, three shots rang out, and the car backed up and sped away, tires screeching. The victim provided a description of the car, and described the two occupants of the car as African American men; he also said the shooter in the passenger seat had dreadlocks. A witness provided a description of the car and the license plate. When the police stopped the car with the matching license plate, the occupants were two African American men and the passenger had dreadlocks. The passenger and the driver (the defendant) were asked to step out of the car. The passenger resisted doing so, but when he did, a revolver was found on the ground at his feet. The defendant, who was older than the passenger, was “calm, cool and relaxed in comparison” to the passenger. A police expert opined that drive-by shootings often involved a driver in addition to a shooter.
The victim and the witnesses gave divergent accounts as to which direction the car went when it drove away. The defendant's theory of the case was that there were two cars, and the police got the wrong car. The Commonwealth's theory of the case was that there was one car and the defendant, who was older, was the person who planned and supervised the shooting. For purposes of the motion for required finding, we take the evidence under the Commonwealth's theory.
Unlike Romero, supra, there was more here than mere presence in a car with a passenger who had a gun. There was sufficient circumstantial evidence from which a jury could infer beyond a reasonable doubt that the defendant had knowledge of and an intent to control the firearm. The driver drove the shooter to and from the site of a deliberate, targeted shooting, sped away immediately after the shooting, remained with the shooter in the car for several miles, stopped only when pursued and boxed in, and maintained a calm demeanor after the shooting. The jury were permitted to infer that the defendant was aware of and shared the intent to control the gun, and that he was not an unwitting dupe or pawn. The evidence was sufficient.
Judgments affirmed.