Opinion
19-P-713
04-22-2020
COMMONWEALTH v. Derek T. MCGRAIL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of unlawful possession of a firearm and unlawful possession of a loaded firearm. On appeal, he argues that there was insufficient evidence that he knew that the firearm was loaded. See Commonwealth v. Brown, 479 Mass. 600, 608-609 (2018). He also argues that the jury were not properly instructed with regard to that issue. Finally, he argues that his trial counsel was ineffective for failing to object to the admission of certain testimony. We affirm.
The jury also found the defendant guilty of unlawful possession of ammunition (the bullets found in the firearm). The judge dismissed that charge as duplicative of the one for unlawful possession of a loaded firearm. The jury acquitted the defendant of assault and battery by means of a dangerous weapon.
Background. In assessing sufficiency, we view the Commonwealth's evidence in the light most favorable to the Commonwealth, including drawing all reasonable inferences from that evidence in the Commonwealth's favor. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We proceed to summarize the facts the jury could have found, reserving certain details for later discussion.
On March 26, 2018, Shane Sullivan and Amanda Nohelty drove to the defendant's residence in Lawrence to repossess a vehicle that they had agreed to sell to the defendant. When they arrived there, they were met by the defendant and two women. As Nohelty was getting out of the car, one of the women physically attacked her and then the other woman did as well. When Sullivan got out of the car to come to the aid of Nohelty (his longtime girlfriend), the defendant stopped him and held the muzzle of a handgun against his neck while saying that he should "let it happen." Together with the two women, the defendant then ran into the house while tucking the gun into his waistband.
Responding officers spoke with those at the scene, and the defendant eventually admitted to where a handgun specifically could be found inside the house. The gun was loaded with ammunition (specifically, two bullets).
Discussion. 1. Sufficiency. While the Commonwealth must prove beyond a reasonable doubt that the defendant knew that the firearm he possessed was loaded, his state of mind can be demonstrated by circumstantial proof. Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200 (2018). In our view, the facts here are analogous to those of Resende. There, as here, the defendant had carried a loaded firearm on his person, including in his waistband. "A commonsense inference from that fact alone is that a person would check to see if the firearm was loaded before putting it in his waistband." Id. Although we have held that such an inference by itself is insufficient to sustain a finding that a defendant knew a firearm was loaded, see Commonwealth v. Grayson, 96 Mass. App. Ct. 748, 755 (2019), there was more here. Specifically, there was evidence that the defendant held the gun against Sullivan's neck. Under such circumstances, rational jurors reasonably could infer, beyond a reasonable doubt, that someone using a gun in this manner knew whether it was loaded.
One of the plus factors we relied on in Resende was that the defendant there had made a threat to someone while referencing a gun. In the case before us, the gun was used in a far more direct and visceral way.
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2. Jury instructions. Although the case was tried well after Brown was published, the judge did not instruct the jury that they had to find that the defendant knew that the firearm was loaded. This was error, albeit unpreserved error. With regard to whether that error requires reversal, this case is controlled by Commonwealth v. Woods, 94 Mass. App. Ct. 761 (2019). There, as here, the jury found the defendant guilty of possessing ammunition found inside a firearm after properly having been instructed that they could do so only if they found that the defendant knew that he possessed such ammunition. See id. at 768. Under these circumstances, the defendant cannot show that the erroneous instructions caused a substantial risk of a miscarriage of justice. Id. See Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 421 (2019) (reaffirming the holding of Woods ).
3. Ineffective assistance. To make out a claim that his trial counsel was constitutionally ineffective for not objecting to various testimony, the defendant must show both that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," and that her performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden of establishing both prongs of the Saferian test." Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014). We are deferential to defense counsel's strategic decisions at trial, and adhere to a "strong presumption that counsel knows best how to defend a client." Commonwealth v. Glover, 459 Mass. 836, 843 (2011). See Commonwealth v. Florentino, 396 Mass. 689, 690 (1986). Moreover, where, as here, a defendant has not filed a motion for new trial, he can prevail only where ineffectiveness is shown "indisputably" on the trial record. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Some of the examples that the defendant has put forward of his trial counsel's alleged ineffectiveness require little discussion. For example, counsel hardly can be faulted for failing to object to a police officer's passing statement that he recognized the defendant because he was "familiar" with him. Given that there are many benign ways in which a police officer might be familiar with someone, counsel readily could have concluded that objecting to the statement might have been detrimental by calling attention to it.
Much of the testimony that the defendant now argues his trial counsel should have tried to keep out has to do with the police witnesses establishing the background for how the defendant made his admission to them as to where the gun was located. This involved the witnesses describing what they observed at the scene and what their conversations were with those with whom they spoke. Much of this stage-setting testimony likely would have been allowed even had counsel objected. See Commonwealth v. Cohen, 412 Mass 375, 393 (1992) ("an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct" [citation omitted] ). Moreover, the out-of-court statements made by Sullivan and Nohelty could have qualified as excited utterances (rendering them admissible under that hearsay exception). See Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018). To the extent that objecting to the officers' testimony would have been fruitless, trial counsel cannot be subject to blame. See Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 678 (2011) ("The absence of an unmeritorious or futile objection cannot constitute ineffectiveness").
That said, the defendant's argument that trial counsel should have objected to some of the testimony has some force. In particular, counsel would have been wise to object to testimony that the officers told the woman who apparently was in charge of the residence that in their view they had "probable cause" to search it for a gun and suggested to her that she would not want to be "harboring a criminal." In addition, to the extent that the judge allowed the witnesses to recount out-of-court statements that did not qualify as excited utterances, counsel might well have been able to secure a limiting instruction that such testimony could not be taken for its truth.
However, the fact that, in hindsight, counsel could have done a better job does not mean that her performance fell "measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96. Moreover, it does not mean that the admission of any evidence that otherwise should have been excluded caused the defendant such prejudice that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Id. The testimony from the responding officers in any event was largely duplicative of that of Sullivan and Nohelty. Both of those witnesses testified at length and the jury therefore had a robust opportunity to assess their credibility. Although the defendant argues that the officers' testimony indirectly "vouched" for Sullivan and Nohelty (given that the officers appeared to credit what they reported at the scene), we are unpersuaded that this had more than minimal effect. Even if trial counsel's behavior were taken as so deficient as to satisfy the first prong of Saferian, the defendant has not demonstrated that he was deprived of a "substantial ground of defence." In short, the defendant has not shown that his trial counsel's constitutional ineffectiveness appears indisputably on this record.
Judgments affirmed.