Opinion
13-P-1521
02-12-2016
COMMONWEALTH v. LIONEL LAWSON.
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, Lionel Lawson, appeals from his conviction, following a jury trial in the Superior Court, of possession of a firearm in violation of G. L. c. 269, § 10(h). He contends that: (1) the admission at trial of his statement, "I don't rat," was an improper comment upon his invocation of his right to remain silent; (2) the trial judge erred by including in his jury charge an instruction on constructive possession when the Commonwealth only proceeded on a theory of actual possession; and (3) trial counsel provided ineffective assistance of counsel. We affirm.
Background. The defendant resided in the second floor apartment at 33 Locust Street in New Bedford with his girl friend and his eighty year old mother. On July 15, 2012, the defendant and his girl friend had an argument during which his girl friend scratched him on the back. The girl friend retreated to the porch, the defendant slammed the door between the porch and the apartment, and the girl friend reentered the apartment and said to the defendant, "What the F are you doing? What the hell? What the F are you doing?" The defendant, who was sitting on the couch in the living room and holding a shiny box, slowly opened the box, took out a gun, pointed it at his girl friend, and said, "Well, what about this?" The girl friend said to the defendant,"[y]ou fucked up," and "ran and got the phone and called 911." The girl friend walked down the stairs and saw the defendant hopping behind her, wiping the gun with his shirt. The police arrived about six minutes after the 911 call, spoke to the girl friend, and found a box containing a loaded gun on the common area landing outside the doors to the first floor apartment and the basement. The officers went upstairs to the defendant's apartment, and, upon being invited inside by the defendant, provided him Miranda warnings and questioned him about the incident. Asked about the gun and a "zap stick" found under a couch cushion, the defendant stated, "Those weren't mine." Asked if the firearm and zap stick belonged to his girl friend or mother, the defendant responded to the effect of "I'm not sure. They must be their's. One of their's." The officers arrested the defendant. During the booking process, the defendant sought to explain his side of the incident, and stated that he and his girl friend "were in a verbal argument. It got progressively more heated, and she ended up scratching [my] back and hitting [me] with a small propane tank in the arm." Asked "who he had gotten the gun from," the defendant paused and stated, "I don't rat" and "then refused to speak further about the gun after that point."
There was testimony suggesting that the defendant "took the phone" and hung up on the 911 operator, and that the 911 operator called back forthwith.
During the time period relevant to this case, the defendant used crutches and a wheelchair due to a prior leg injury.
The defendant was also charged with possession of an electric stun gun, possession of ammunition without an FID card, and receiving stolen property. The Commonwealth entered a nolle prosequi on the receiving stolen property charge; the trial judge entered a required finding of not guilty on the stun gun charge; and the jury acquitted the defendant on the possession of ammunition charge.
The defendant's girl friend acted as caregiver to the defendant's mother, who had myriad health issues including COPD, Alzheimer's, spinal stenosis, and diabetes.
Discussion. 1. Defendant's statement to police. For the first time on appeal, the defendant claims that the statement "I don't rat," made to the police during booking, constituted an invocation of his right to silence, and thus it was error for the officer to testify to it and the prosecutor to reference it in her closing argument. Where the defendant did not object at trial to the admission of the statement, our review is limited to the substantial risk of a miscarriage of justice standard. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
The fatal problem with the defendant's argument is that his statement "I don't rat" was not an invocation of his right to remain silent. The phrase "to rat" is commonly understood to mean that an individual would not tell someone in authority the wrongdoings of another. See Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/rat (defining "rat" [verb] as "to tell someone in authority [such as the police] about something wrong that someone has done: to betray someone"). The defendant's statement "I don't rat" denoted that the defendant knew that the firearm existed, and that someone else owned the firearm. The Fifth Amendment to the United States Constitution, and consequently one's Miranda right to silence, is "purely a personal privilege of the witness" and does not protect one from incriminating others. Rogers v. United States, 340 U.S. 367, 371 (1951), quoting from Hale v. Henkel, 201 U.S. 43, 69 (1906). See United States v. Mandujano, 425 U.S. 564, 572 (1976).
Not only was the defendant's statement "I don't rat" not inadmissible because it failed to constitute an invocation of his right to remain silent, it was independently admissible to show that the defendant was aware that the gun existed, and that he knew that someone else owned it. Indeed, the defense emphasized this argument throughout the trial. The defendant's state of knowledge that someone else owned the gun was relevant to show that the defendant was aware of the gun's very existence, particularly when juxtaposed with (a) his earlier disclaimer that he was "not sure" as to the identity of the owner, and (b) his denial of any knowledge of the gun. Compare Commonwealth v. Mavredakis, 430 Mass. 848, 862-863 (2000); Commonwealth v. Romero, 464 Mass. 648, 650-652 (2013). Accordingly, the statement was not inadmissible, and the prosecutor was entitled to comment upon it in her closing. The argument fails.
In closing argument, defense counsel summarized the defendant's statements to the police as follows: "They ask my client a question about the gun. And what does he say? What does he say? 'I'm no rat.' . . . Doesn't imply anything that my client possessed [the] gun. I would argue based on the evidence, it implies just the opposite. That he never possessed this gun. 'I'm no rat'" (emphasis supplied).
Viewed in context, the prosecutor's references to "statements the defendant didn't make" amounted to a rhetorical flourish which contrasted the statements the defendant made at his apartment with the statements he made at the police station, and thus were not improper.
2. Jury instruction. The defendant claims that the trial judge committed reversible error by instructing the jury on constructive possession when the Commonwealth proceeded only on a theory of actual possession. He argues that "by including the broader instruction on constructive possession, the judge lowered the burden of proof for the Commonwealth to prove actual possession." We disagree. In Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 531-532 (2000), we previously rejected substantially the same argument. See ibid. (rejecting claim that in instructing jury on both actual and constructive possession, judge permitted jury to find defendant guilty on theory for which there was insufficient evidentiary basis). "[C]onstructive possession and actual possession are not different theories in the way that deliberate premeditation and felony-murder are different theories, . . . they are simply two possible ways of defining the same legal principle. The essential elements of either sort of possession are knowledge plus ability and intention to control[,] . . . the two sorts of possession are substantially identical." Id. at 532 (citations omitted).
Even if the two kinds of possession were treated as discrete legal theories, there was no error. After explaining the concept of constructive possession in his final charge, the trial judge instructed as follows:
"Now, this case focuses upon the Commonwealth's claim that he was in actual possession of that item. For example, actual possession applies in this circumstance. I have this pencil right in my hand. I know it's there. It's certainly accessible to me, and I intend to exercise dominion and control over this pencil which I use to take my notes. If all of that is proven, then possession under law has been proven. So there has to be, in terms of actual possession, the possession of that item. The hand holds it. Second,
I know it's there. And third, I intend to exercise dominion and control."
In response to a subsequent question from the deliberating jury about the legal definition of possession, the trial judge essentially repeated his earlier possession charge, and then instructed as follows:
"But I repeat that in this case, it is the Commonwealth's contention that the defendant had actual possession. That he had actual possession over that item."
The trial judge then asked the clerk to hand him the "alleged firearm" and instructed as follows:
"They claim that he had actual possession of this. In other words, that he had it in his hand, that he knew it was in his hand, and that he intended to exercise dominion and control over it, meaning that he intended to take control of that, to take command over that object. So those are the elements that constitute possession. And that's what the Commonwealth claims, and they have to prove that."
The judge's instructions mandated a finding of actual possession, and we must presume the jury followed them. Commonwealth v. Williams, 450 Mass. 645, 651 (2008). There was no error, and thus, no risk of a miscarriage of justice.
3. Ineffective assistance. The defendant claims that defense counsel's performance fell measurably below that of an ordinary fallible attorney because he: (1) failed to file a motion to suppress the statement, "I don't rat"; (2) failed to object to the Commonwealth's closing argument; (3) failed to request that the jury be instructed solely on actual possession; (4) misstated a material fact in his opening and closing; and (5) failed to object to prejudicial hearsay from one of the officers regarding a report of a "domestic" where a male pointed a gun at a victim. Even putting aside the impropriety of raising this claim for the first time on appeal, Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), where there is no substantial risk of a miscarriage of justice, there can be no ineffective assistance of counsel. Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994). Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010). Thus, the first three bases of the ineffective assistance claim fail for the reasons provided, supra. The alleged prejudicial hearsay was cumulative of the girl friend's testimony, and the defendant's statements during the booking process. See Commonwealth v. Bart B., 424 Mass. 911, 915 (1997) ("The admission of cumulative evidence does not commonly constitute reversible error"). Finally, defense counsel's purported misstatements in his opening statement and closing argument regarding the timing of the statement, "I don't rat," were immaterial and did not deprive the defendant of an otherwise substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 12, 2016.