Opinion
No. 16–P–174.
12-16-2016
COMMONWEALTH v. Derek D. SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Derek D. Smith, appeals from his conviction by a District Court jury of carrying a firearm in violation of G.L. c. 269, § 10(a), and from the order denying his motion for new trial. The defendant raises three issues on appeal: (1) the judge erred by allowing the Commonwealth's late disclosed witness to testify that the firearm was operable; (2) the judge erred by allowing the codefendant to call the defendant as a witness; and (3) the judge erred by providing the jury with erroneous instructions. We affirm.
1. Late disclosed witness. The defendant argues that he was prejudiced by the Commonwealth's late disclosure of a witness, Sergeant LaFleur of the Seekonk police department, who testified that the firearm found with the defendant in the vehicle was operable and measured five inches long. Because the defendant preserved the issue on appeal with a timely objection, we review for prejudicial error, Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), and conclude that the judge properly exercised his discretion in allowing LaFleur to testify.
The defendant should have had the use of discovered facts in advance of trial. Commonwealth v. Gagliardi, 29 Mass.App.Ct. 225, 228 (1990). However, a judge possesses "considerable discretion" in solving problems created by the prosecution's late disclosure of evidence. See Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997). See also Mass.R.Crim.P. 14, as amended, 444 Mass. 1501 (2005). When a defendant claims that there has been a delayed disclosure of unexpected testimony, he has the burden of showing prejudice in order to preclude the testimony. See Commonwealth v. Caracino, 33 Mass.App.Ct. 787, 793 (1993) ; Commonwealth v. Fossa, 40 Mass.App.Ct. 563, 568–569 (1996). He must demonstrate how the information, if disclosed earlier, would have aided him "in preparing and presenting his case." Commonwealth v. Molina, 454 Mass. 232, 236–237 (2009), quoting from Commonwealth v. Wilson, 381 Mass. 90, 114 (1980).
Here, the defendant fails to show how the Commonwealth's late disclosure prejudiced him in any way. LaFleur's only consequential testimony was to prove the second element of the charged offense, that the weapon was a firearm as defined by G.L. c. 140, § 121. The defendant had ample opportunity and leave to question LaFleur and his findings through cross-examination. "Where a defendant is able to cross-examine a witness extensively, prejudice is effectively removed." Molina, supra (quotation omitted). Additionally, it is unlikely the defendant could show prejudice because he was on notice that the Commonwealth had the burden to prove that the firearm was operable. See Commonwealth v. Rosario, 90 Mass.App.Ct. 570, 575 (2016).
LaFleur also testified to his experience as a firearms specialist and use of firearms in general.
Pursuant to the statute, a "firearm" is a pistol, revolver, or other weapon, loaded or unloaded from which a shot or bullet can be discharged, and with a barrel length of less than sixteen inches.
Furthermore, the defendant's argument that he would have pursued other strategies if he had notice of LaFleur's testimony is unsupported in the record. The defendant filed a motion to dismiss, but did not request a continuance to further develop his cross-examination of LaFleur. See Commonwealth v. Redding, 382 Mass. 154, 156 (1980). Nor did the defendant's motion for new trial include supporting material indicating what counsel might have accomplished for the defense if a continuance had been granted.
The Commonwealth suggested a continuance in light of their late disclosure; however, the judge decided to proceed with LaFleur's testimony.
Furthermore, the jury never considered LaFleur's testimony as "expert" testimony, which by statute would make it prima facie evidence that the gun was operable. See G.L. c. 140, § 121A. Outside the presence of the jury, the judge concluded that based on LaFleur's knowledge, training, experience, and education that he was qualified to testify as an expert to the operability of the firearm, but the judge instructed the jury that "[m]erely because a witness has expressed an opinion, however, does not mean that you must accept that opinion." The jury were never instructed that LaFleur's testimony was prima facie evidence that the gun was operable. Moreover, the Commonwealth does not have a heavy burden in proving that the weapon is a firearm. See Commonwealth v. Paiva, 71 Mass.App.Ct. 411, 413 (2008). The Commonwealth must only present "some competent evidence from which the jury reasonably can draw inferences that the weapon will fire." Ibid. (quotation omitted). "Expert testimony, while admissible, is not required." Ibid.
The record does not support a conclusion that the delayed disclosure of LaFleur's testimony prejudiced the defendant in any way that could have affected the outcome of the trial. See Fossa, 40 Mass.App.Ct. at 569–570. The defendant's primary defense was not the operability of the firearm, but his intent to exercise possession and control over it. The judge did not abuse his discretion in allowing LaFleur to testify.
2. Defendant's testimony. The defendant argues that it was error for the judge to allow the codefendant to call the defendant as a witness. The defendant did not object at trial, thus we review the error, if any, for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002).
The defendant, without citing any authority, suggests the judge was obligated to prevent the defendant from testifying as a witness for the codefendant. The decision to testify or not to testify is made between the defendant and his counsel. Commonwealth v. Freeman, 29 Mass.App.Ct. 635, 641 (1990). The defendant testified on behalf of his codefendant, which opened the door to cross-examination where the Commonwealth had the opportunity to impeach his credibility. There was no error.
3. Jury instruction. The defendant argues that the judge in his jury instruction misstated an element of the offense when he stated that the Commonwealth must prove beyond a reasonable doubt that the defendant "knew that he possessed this item or that he had control of it ... in the vehicle." The defendant did not preserve this claim at trial, and so we again review for a substantial risk of a miscarriage of justice. Randolph, supra.
"The legal sufficiency of the instructions to the jury is to be judged on the basis of the charge as a whole, and not on the basis of limited or isolated portions of it." Commonwealth v. Redmond, 357 Mass. 333, 342 (1970). To be found guilty under G.L. c. 269, § 10, the defendant must knowingly possess a firearm or knowingly have it under his control in a vehicle.
Here, the jury were instructed largely in accordance with Instruction 7.600 of the Criminal Model Jury Instructions for Use in the District Court. The defendant argues that the judge failed to instruct the jury that the Commonwealth must prove that the defendant knowingly controlled the firearm in the vehicle to be found guilty. However, the judge gave a detailed explanation of constructive possession when he instructed the jury that
"[t]o establish that a firearm was under the defendant's control in a vehicle, it is not enough for the Commonwealth just to prove that the defendant was present in that same vehicle as the firearm. The Commonwealth must also prove that the defendant knew that the firearm was there, and that the defendant had both the ability and the intention to exercise control over the firearm...."
Considering the instruction in its entirety, it is clear that the elements of the possession charge were properly conveyed to the jury. There was no error.
Judgment affirmed.
Order denying motion for new trial affirmed.