Opinion
09-P-813
08-03-2011
COMMONWEALTH v. JERRY WILLIAMS (and eight companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, codefendants Jerry Williams and Steven Pinkney were convicted of a number of offenses stemming from a shooting in Brighton on June 21, 2006. They now appeal.
Pinkney was convicted of carrying a firearm without a license (G. L. c. 269, § 10[a]); unlawful possession of ammunition without a firearm identification card (G. L. c. 269, § 10[h]); and carrying a loaded firearm (G. L. c. 269, § 10[n]). Williams was convicted of the same three crimes as Pinkney and was also convicted of aggravated assault and battery by means of a dangerous weapon (firearm) upon Mark Reeves (G. L. c. 265, § 15A[c]) and two counts of assault by means of a dangerous weapon (firearm), upon Charles Santos and Steven Reeves (G. L. c. 265, § 15B[b]).
1. Sufficiency of the evidence. On appeal, Williams challenges the sufficiency of the evidence that he committed an aggravated assault and battery by means of a dangerous weapon by shooting Mark Reeves (Mark). Williams also challenges the sufficiency of the evidence that the gun he possessed met the legal definition of a firearm. Pinkney challenges the sufficiency of the evidence that he possessed a firearm and that this firearm was loaded at the time he possessed it. We review to determine whether the evidence, viewed in the light most favorable to the Commonwealth, could satisfy any rational trier of fact of each of the elements of the crimes charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
a. Aggravated assault and battery by means of a dangerous weapon. Since Williams does not challenge the fact that a firearm is a dangerous weapon or that Mark suffered serious injuries, the only issue on appeal is the sufficiency of the evidence that Williams was the shooter. G. L. c. 265, § 15A(c). Mark testified at trial that Williams shot him in the face. This identification alone was sufficient evidence by the Commonwealth.
Williams argues that the jury should not have believed Mark's testimony at trial because Mark previously told the police and testified to the grand jury that he could not identify the shooter. However, the jury could believe Mark's trial testimony despite his previous statements to police and testimony to the grand jury. See Commonwealth v. Deane, 458 Mass. 43, 52 (2010). See also Commonwealth v. Daughtry, 417 Mass. 136, 140 n.1 (1994) ('A jury are free to believe part of a witness's testimony and disbelieve part, if doing so does not distort any integral portion of the testimony'). Williams also argues that Mark's testimony was discredited because he testified at both trial and the grand jury that Williams was wearing dark clothes while other witnesses testified that Williams was wearing a yellow shirt. As suggested above, the jury could have disbelieved this portion of Mark's testimony, or discredited the contrary testimony by other witnesses and believed Mark's testimony. Moreover, even if the jury did not believe that Mark saw Williams shoot him, there was still sufficient circumstantial evidence presented by other witnesses, including Steven Reeves (Steven) and Charles Santos (Charles), to allow the jury to conclude that Williams shot Mark.
Steven testified that he saw Williams receive a gun from Pinkney; that he, Charles, and Mark were chased by Williams, who was holding a gun; and that he heard gunshots before Williams came around to the side of the van where he was standing, and then he saw Williams point the gun at him before he took off running. Charles testified that Williams 'sucker-punched' him and they started fighting; that Mark broke up the fight and he heard a 'pop'; that Williams started fighting with him again; that while they were fighting, he felt something press up against his side that he believed to be a gun; that he heard Mark say he had been hit and Charles began to run away; and that as he was running away he heard about three more shots. Although neither witness saw Williams shoot Mark, it would be reasonable for the jury to infer that Williams, whom both Steven and Charles saw holding a gun, was the shooter. See Commonwealth v. Zuluaga , 43 Mass. App. Ct. 629, 639 (1997) ('The jury were entitled to draw from the circumstances inferences which did not have to be necessary or inescapable so long as they were reasonable and possible').
b. Firearm. In order to establish that the gun Williams possessed met the legal definition of a firearm, the Commonwealth had to establish that the barrel of the gun was less than sixteen inches long and that the gun was capable of discharging a bullet. See G. L. c. 140, § 121; G. L. c. 269, §10(a); Commonwealth v. White, 452 Mass. 133, 136 (2008). The weapon itself was not recovered and so was not put before the jury. However, based on the testimony that the gun was a handgun or revolver, there was sufficient evidence for a jury to reasonably infer that the gun's barrel length was less than sixteen inches. See Commonwealth v. Sperrazza , 372 Mass. 667, 670 (1977) (testimony that gun was a handgun or revolver was sufficient evidence of barrel length); Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993) (testimony that hand-held weapon 'was a .25 caliber Baretta automatic' was sufficient to show barrel length). The evidence that Williams fired the gun (see discussion, supra) was sufficient to establish that the gun was capable of being fired. Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 397 (2009) ('[The] testimony of three audible shots, the three empty casings, and the smell of gunpowder . . . amply supported the working condition of the weapon'). Thus, the Commonwealth presented sufficient evidence that the gun was a working firearm.
Steven testified that the gun he saw in Williams's hand was a revolver. Mark also saw the gun that Williams dropped and described it as 'a little .38 handgun, a little silver, snub nose.' Finally, Detectives Foley and Camper both testified that the bullet fragment found in Mark's jaw was fired from a revolver.
c. Possession of firearm. Two witnesses testified that they saw Williams get the gun from Pinkney. This was sufficient evidence to show that Pinkney possessed a gun. For the reasons discussed supra, there was sufficient evidence that this gun was a firearm.
Both Steven and Mark testified that they saw Williams get the gun from Pinkney.
d. Loaded firearm. Steven testified that he saw Pinkney fire the gun into the air before Williams got the gun from him. The Commonwealth also presented testimony that once Williams got the gun from Pinkney, he immediately engaged with Mark, Steven, and Charles. Thus, the jury could reasonably have inferred, from the testimony that Pinkney shot the gun in the air and from the absence of time for Williams to load the gun, that Pinkney possessed a loaded firearm. See Commonwealth v. Zuluaga, 43 Mass. App. Ct. 629, 639 (1997).
Steven testified that Williams grabbed the gun from Pinkney and then started chasing them. Mark testified that after he saw Williams get the gun from Pinkney he did not have time to get words out of his mouth before Williams shot him.
2. Excited utterance. On appeal, Williams takes issue with hearsay testimony that was admitted at trial as an excited utterance. Since Williams did not object to the admission of this hearsay at trial, and although Pinkney did object to it, we review Williams's claim to determine whether the admission of the statement was error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 907 (1999). Here, even if the testimony was admitted in error, there was no substantial risk of a miscarriage of justice because the hearsay evidence was cumulative of Steven's detailed trial testimony, on which he was extensively cross-examined. See Commonwealth v. O'Kane, 53 Mass. App. Ct. 466, 472 (2001) (admissibility of officer's description of witness's statement as excited utterance was 'trivial' point where statement was 'cumulative upon similar evidence, including testimony at trial by [the declarant] herself, which subjected her to cross-examination'). See also Commonwealth v. O'Connor, 407 Mass. 663, 670 (1990) ('The mistaken admission of hearsay evidence, if merely cumulative of another witness's testimony, does not constitute reversible error').
Detective Foley testified that Steven told him the following:
'He described a black male with nappy hair that started an argument and then had a fight with Charlie Santos. And that there was another individual there who came out with the group; that was standing around watching it, who passed a handgun to Mr. Williams and that Mr. Williams then discharged that firearm, then chased him around the van. And the reason he ran off is because this man was coming around the van; firing shots at him. So he ran as fast as he could through the [housing] [d]evelopment and just ran; he didn't know where he was going, at the time.'
3. Constitutional claims. Pinkney argues that G. L. c. 269, § 10, and G. L. c. 140, § 131, are unconstitutional under the Second Amendment to the United States Constitution and art. 17 of the Massachusetts Declaration of Rights 'because they only allow lawful possession of a firearm on the arbitrary decision of a chief of police or the colonel of the state police' and thus unlawfully restrict a 'fundamental right.' 'Because the Second Amendment issue now presented by the defendant was not available to him until . . . after his trial, we conclude that this failure to raise the issue during his trial does not preclude him from raising it here.' Commonwealth v. Powell, 459 Mass. 572, 587 (2011).
In District of Columbia v. Heller, 554 U.S. 570, 635 (2008), the United States Supreme Court held that the Second Amendment protects 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.' Two years later the Court in McDonald v. Chicago, 130 S. Ct. 3020, 3050 (2010), extended the holding in Heller by concluding that 'the Second Amendment . . . right to possess a handgun in the home for the purpose of self-defense . . . applies equally to the Federal Government and the States.' See Powell, 459 Mass. at 589-591 (discussing Heller and McDonald).
The Second Amendment does not protect Pinkney in this case because he was in possession of the firearm outside of his home. Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 258 (2011). 'Moreover, Heller and McDonald both expressly affirm the Commonwealth's right to regulate in this area with, inter alia, appropriate licensing requirements.' Ibid., citing Heller, 554 U.S. at 626-628 & n.26, and McDonald, 130 S. Ct. at 3047. While Pinkney argues that the licensing requirements here were arbitrary because licensing decisions are left to the discretion of a chief of police or the colonel of the State police, there is no evidence here that the defendant ever applied for a § 131 license to carry a firearm or that, having been denied a license, he appealed that decision. See Powell, 459 Mass. at 589. 'Instead of applying for [a license], the defendant chose to violate the law. In these circumstances, we conclude that he may not challenge his conviction . . . .' Id. at 589-590.
One witness testified that Pinkney had a gun in the parking lot at the Fidelis Way housing development. The other witness testified that he had a gun in the alley next to the buildings and near the parking lot. Whether he was standing in the parking lot or in the alley, it is clear from the testimony that Pinkney possessed a gun outside of his home.
Moreover, we note that, at the time of trial, Pinkney had a previous conviction for assault by means of a dangerous weapon. Although it is unclear from the record before us, this prior conviction may have made Pinkney ineligible to obtain a license under G. L. c. 140, § 131(d)(i). See Heller, 554 U.S. at 626 ('[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons').
Finally, Pinkney argues that Heller invalidates the Supreme Judicial Court's holding in Commonwealth v. Davis, 369 Mass. 886 (1976), and that art. 17 of the Declaration of Rights must be read to guarantee individuals the right to possess firearms. Since Heller does not afford Pinkney a right to possess a firearm outside of his home, Heller cannot require Massachusetts to adopt a more expansive right. Even if Heller and McDonald mandate a reversal in whole or in part of the holding in Davis, those cases provide the defendant with no relief in these circumstances involving a firearm outside the home.
4. Duplicative charges. The Commonwealth correctly concedes that in the circumstances the defendants' convictions of possession of ammunition were duplicative of their convictions of possession of a loaded firearm. See Commonwealth v. Vick, 454 Mass. 418, 431-436 (2009).
Although only Pinkney argues on appeal that the charges were duplicative, the Commonwealth specifically concedes that it has no objection to also vacating Williams's ammunition possession conviction.
5. Conclusion. On the counts charging unlawful possession of ammunition, the judgments are vacated, the verdicts are set aside, and the indictments are to be dismissed. The remaining judgments are affirmed. On remand, consideration shall be given to whether resentencing is warranted.
So ordered.
By the Court (Rapoza, C.J., Brown & Katzmann, JJ.),