Opinion
20-P-658
03-01-2021
COMMONWEALTH v. MALEK F. BOSMOND.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury trial in the Superior Court, the defendant was convicted of unlawful possession of a firearm and reckless assault and battery by means of a dangerous weapon. On appeal, he argues that the evidence was insufficient to prove that the firearm in question was capable of discharging a bullet. He also claims that the prosecutor exceeded the bounds of proper argument by characterizing the defendant's claim of misidentification as an "insult to the jury's intelligence" and by allegedly referring to facts not in evidence in his closing argument. We affirm.
The defendant was acquitted of two additional charges, assault by means of a dangerous weapon and witness intimidation, and the Commonwealth filed a nolle prosequi on a charge of possession of marijuana with intent to distribute.
Background. The jury were warranted in finding the following facts. At around 9 P.M. on December 20, 2017, the defendant and Akieli Brown, who testified pursuant to a grant of immunity, attempted to visit Jessica Santana at her apartment located in Mill Valley Estates in Amherst. The defendant and Santana had dated in the past and were friends. Santana did not want company that night and the two left.
We include only those facts relevant to the issues raised on appeal.
Later that evening, Santana's current boyfriend, Dion Cadiz, arrived at Santana's apartment. The two were in the bedroom when they heard a knock on the window. Santana believed the defendant had returned and relayed her suspicion to Cadiz, who became angry. Ultimately, Cadiz called the defendant on Santana's cell phone, and, during a heated conversation, the defendant said that he was on his way back over to Santana's apartment. Expecting the defendant and Brown's return, Cadiz called his stepfather, Charlie Simmons, who lived close by, to come over. When Simmons arrived, he observed that Cadiz "was agitated [and] mad." Simmons attempted to defuse the situation before the defendant and Brown arrived, but was not successful. The defendant and Brown returned to the apartment and a fight ensued. During the altercation, which started in the apartment and then escalated outside, the defendant pulled out a gun. Simmons attempted to protect himself by biting the defendant on the forearm. The fight continued until the defendant shot Simmons in the leg. Both Brown and Santana testified that they heard the shot. Simmons reentered the apartment and the police were called. Simmons subsequently was taken to the hospital for treatment. The police later recovered a spent projectile from Simmons's pants. The defendant, who had fled the scene just after he fired the shot, leaving Brown (and his car) behind, was apprehended about two days later. He admitted that he had been at Mill Valley Estates with Brown on the night in question and he had a visible bite mark on his arm. The firearm was not recovered. The Commonwealth also introduced footage from security cameras that captured many aspects of the evening's events.
Discussion. a. Sufficiency of the evidence. In reviewing a claim of insufficient evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
To sustain a conviction for unlawful possession of a firearm, the Commonwealth must prove "that the defendant knowingly possessed a firearm without either being present in his residence or place of business or having in effect a license to carry firearms or a firearm identification card." Commonwealth v. White, 452 Mass. 133, 136 (2008). The Commonwealth must also "prove that the gun the defendant possessed met the definition of a working firearm set forth in G. L. c. 140, § 121, that is, that it had a barrel less than sixteen inches long and was capable of discharging a bullet." Id. The defendant contends that, where the firearm was not found and there was no expert testimony that established it was operable, the evidence was insufficient to prove that the firearm was capable of discharging a bullet.
Whether the firearm had a barrel less than sixteen inches long is not at issue in this case.
The evidence, viewed in the light most favorable to the Commonwealth, was sufficient to convict the defendant. Three witnesses testified that they heard the sound of a gunshot, Simmons sustained a gunshot wound to his leg, and the police found a spent bullet in Simmons's pants. See Commonwealth v. Housewright, 470 Mass. 665, 680 (2015) (evidence that witness who was familiar with guns saw defendant load and fire weapon that "looked like a gun, sounded like a gun, and flashed like a gun" was sufficient to prove beyond reasonable doubt that gun was capable of discharging bullet even where no gun was found, no casings or bullets were recovered, and no ballistics evidence or expert testimony was introduced).
b. The prosecutor's closing argument. The defendant challenges two comments in the prosecutor's closing argument. The first remark relates to the defense theory of misidentification, and the second concerns the evidence of the defendant's possession of the firearm. The defendant did not object to these comments at trial, and therefore our inquiry is limited to whether the statements were impermissible and, if they were, whether they created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). "We analyze the remarks in 'light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Commonwealth v. Stote, 433 Mass. 19, 28 (2000), quoting Commonwealth v. Mello, 420 Mass. 375, 380 (1995).
With respect to the first comment, the prosecutor stated: "for [defendant] to call this a mistaken ID case, frankly, I think it's insulting to your intelligence." The Supreme Judicial Court previously has criticized a prosecutor's use of the phrase "insults your intelligence" when describing the defendant's theory of defense. In Stote, 433 Mass. at 28, the court said: "The reference was an unnecessary characterization, and came very close to crossing the line of a permissible 'comment on evidence developed at trial'" (citation omitted). The same can be said here. The fact that the evidence establishing the defendant as the perpetrator was overwhelming does not excuse the prosecutor for making the comment. Nevertheless, as the court concluded in Stote, given the judge's instructions, the absence of an objection, and the weight of the Commonwealth's case, we discern no substantial risk of a miscarriage of justice. Id. at 28-29.
The judge instructed the jury that closing arguments are not evidence at the beginning of the case and again in his final instructions. The jury are presumed to follow these instructions and to "understand the argumentative, not factual, nature of closing arguments." Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013).
Next, the defendant claims that the prosecutor misstated the evidence when he argued to the jury that certain surveillance video footage (video) depicted the defendant holding a firearm. Unlike the first challenged comment, this comment was in no way improper. We have reviewed the video to which the prosecutor was referring and conclude that he did not misstate the evidence by asking the jury to infer that the object in the defendant's hand was a gun. Furthermore, the jury had access to the video in question during their deliberations and could judge for themselves what the video depicted.
Judgments affirmed.
By the Court (Vuono, Sacks & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 1, 2021.