Opinion
19-P-1016
04-03-2020
COMMONWEALTH v. Denzell ROWELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Denzell Rowell, was convicted by a jury in the Superior Court of possessing a firearm without a license, in violation of G. L. c. 269, § 10 (a ), and possessing a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n ). On appeal, the defendant contends that the judge erred in denying his motion for a required finding of not guilty. We reverse.
Background. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On the night of November 25, 2015, Michael DeJesus and Kenneth Emmanuel were at Patron's bar, a nightclub in Allston. Towards the end of the night and into the early hours of November 26, fights erupted all over the bar. DeJesus and Emmanuel attempted to exit the bar through a back door, which opened onto a second-story fire escape. The fire escape had stairs leading down to an alley in the rear of the building. As the men started down the fire escape, they both noticed three or four men standing below them in the alley. Emmanuel then "saw a muzzle flash" and heard gunfire. While Emmanuel managed to dive back through the door, DeJesus was shot in the hip. Emmanuel and DeJesus testified that they heard five or six shots originating from the alley below the fire escape. They were not, however, able to identify any of the men whom they saw standing in the alley.
At the time of the shooting, Boston University Police Officer Louis Copponi was in his cruiser stopped at a traffic light near Patron's. Upon hearing the gunshots, Officer Copponi activated his emergency lights and proceeded towards the bar. He then observed three individuals running from behind Patron's towards Blanchards Liquors across the street. Because one of the individuals was slightly behind the other two, Officer Copponi focused on the two individuals in the front. He followed the men as they ran down the alleyway next to Blanchards, towards the parking lot behind the store.
Meanwhile, Boston Police Officers Lundy and Paillant, who were parked outside Patron's, also heard the gunshots and began driving down Harvard Avenue. After seeing Officer Copponi's cruiser turning into the Blanchards parking lot, the officers continued down to another entrance in order "to block off the next available exit" out of the parking lot.
Once in the parking lot, Officer Copponi saw the two men run through the parking lot, over some barriers, and into a second parking lot. He then saw the men get into a vehicle with the license plate 321KZ4. Unable to pursue the vehicle due to the barriers, Officer Copponi exited the parking lot, pulled up next to Officers Lundy and Paillant, and relayed information about the situation to them. While Officers Paillant and Copponi were speaking, Officer Lundy exited his cruiser and began walking down the alley towards the parking lot. A grey Ford then emerged from the alley and drove quickly by Officer Lundy, turning onto Harvard Avenue. Officer Lundy got back into the cruiser, and both cruisers followed the Ford, stopping it about a block down the road.
Once stopped, the passenger, the defendant's brother, got out of the vehicle with his hands up and said, "I don't have a gun. I didn't do a shooting. I'm just scared." The officers then ordered the driver, the defendant, out of the vehicle, and handcuffed and pat frisked them both. Officer Copponi confirmed that the vehicle was the one he saw the men get into in the parking lot. When asked whether they were involved in a fight at Patron's, the defendant denied involvement. His brother, however, stated that they were involved in a fight at Patron's, but was vague about the circumstances. After releasing the men due to the lack of information evidencing their participation in the shooting, the officers joined the search for ballistics evidence in the alley behind Patron's. Three shell casings were recovered.
A few days later, the manager of Blanchards reviewed videotape (video) surveillance footage from the morning of November 26, which apparently showed an individual tossing an item onto Blanchards' roof. The video led to the discovery of a firearm on the roof of the store. Once shown the video, Officer Copponi indicated that it was "an accurate depiction of the events from [the morning of November 26]." Officers Lundy and Paillant also were shown the video, and Officer Lundy identified the individuals depicted in the video as the defendant and his brother. While the video was not included in the record appendix, the Commonwealth notably made no claim at trial, and makes no claim on appeal, that the man shown tossing the gun was the defendant. In fact, the prosecutor stated in her closing argument that the video shows the defendant's brother tossing the gun onto the roof while the defendant watched.
A criminalist in the Boston Police Department's firearm analysis unit then processed the firearm and magazine recovered from the roof, as well as the three casings recovered from the alley behind Patron's. The criminalist determined that the casings were fired from the recovered firearm.
The defendant and his brother were tried jointly and each charged with (1) assault and battery with a dangerous weapon causing serious bodily injury in violation of G. L. c. 265, § 15A (c ) (i ) ; (2) carrying a firearm without a license in violation of G. L. c. 269, § 10 (a ) ; (3) assault and battery with a firearm in violation of G. L. c. 265, § 15E ; and (4) carrying a firearm loaded without a license in violation of G. L. c. 269, § 10 (n ). Both men were acquitted of the assault and battery charges and convicted of the firearm possession charges.
Discussion. Both possession charges require the Commonwealth to prove that the defendant knowingly possessed a firearm. See G. L. c. 269, § 10 (a ), (n ). Because there was no evidence that the defendant ever actually possessed the firearm, the Commonwealth proceeded primarily under the theory that he was guilty as a joint venturer, while additionally arguing constructive possession. The defendant contends that the evidence was insufficient to establish his guilt under either theory. The judge, the defendant argues, thus erred in denying his motion for a required finding of not guilty with respect to the possession charges, which he filed at the close of the Commonwealth's case-in-chief and again at the close of the evidence.
1. Constructive possession. The defendant first argues that the Commonwealth failed to introduce sufficient evidence to prove that he constructively possessed the firearm. We agree.
We must determine whether the Commonwealth's evidence, "considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Fowler, 431 Mass. 30, 33 (2000), quoting Commonwealth v. Coonan, 28 Mass. 823, 828 (1999). Proof of constructive possession requires the Commonwealth to show "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "Presence alone cannot show the requisite knowledge, power, or intention to exercise control over the firearm, but presence, supplemented by other incriminating evidence, ‘will serve up to tip the scale in favor of sufficiency.’ " Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). Here, there is no evidence that the defendant had knowledge of the firearm prior to it being discharged in the alley behind Patron's. Although the record suggests that the defendant knew about the firearm once it was discharged and was present up until the time the firearm was disposed of, there is no evidence that the defendant ever possessed the ability or intention to take control of the firearm. We thus move on to the evidence supporting the defendant's convictions under a joint venture theory.
2. Joint venture. The defendant next argues that the evidence was also insufficient to prove beyond a reasonable doubt that he acted as a joint venturer with his brother in the possession of the firearm. We agree.
Here, we review to determine "whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). In doing so, we note that a defendant's presence at the scene of the crime, or association with the perpetrator of the crime, do not by themselves sufficiently demonstrate a joint venture. See Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 472 (2014). The Commonwealth must introduce "additional evidence which implicates the defendant in the crime." Commonwealth v. Sepheus, 468 Mass. 160, 167 (2014), quoting Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986). This "additional evidence" may include proof that codefendants acted in a "coordinated fashion," Commonwealth v. McCray, 93 Mass. App. Ct. 835, 843 (2018), or that the defendant "agree[d] to stand by at, or near, the scene of the crime to act as a lookout, or to provide aid or assistance in committing the crime, or in escaping, if such help [became] necessary." Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015), quoting Zanetti, supra at 470 (Appendix). Here, examining the evidence in the light most favorable to the Commonwealth, there was insufficient evidence for a jury to find beyond a reasonable doubt that the defendant knowingly and intentionally participated in the possession of the firearm.
Since there is no evidence of the defendant's knowledge of the firearm prior to it being fired, we must decide whether his actions subsequent to the shooting reflect the specific intent necessary to subject him to joint venture liability. The Commonwealth contends that, in addition to the defendant's presence at the shooting, his intent to participate in the crime is sufficiently evidenced by his fleeing the scene of the shooting with his brother, being in close proximity to his brother when the firearm was disposed of, driving the vehicle as they sped past Officer Lundy, and initially denying being involved in any of the fights at Patron's. These actions, however, rise, at most, to the level of an accessory after the fact; a status distinct from that of a joint venturer. See Simpkins, 470 Mass. at 462-463 ; Commonwealth v. Hoshi H., 72 Mass. App. Ct. 18, 20-21 (2008).
In Simpkins, two men, after shooting at two other men, retreated to the defendant's home. Simpkins, 470 Mass. at 459. The defendant was charged with, among other offenses, murder and assault with intent to murder under a joint venture theory. Id. at 458, 461. While the defendant's role in the crime consisted primarily of aiding the shooters in their escape and concealment of their weapons, the Commonwealth also presented evidence that the defendant previously associated with the shooters and was involved in an encounter with the victims a week prior to the shooting. Id. at 460-461. The court held that, while the facts supported finding the defendant as an accessory after the fact, the Commonwealth failed to show an "agreement by the defendant before or during the commission of the crime to act in concert during or after the shooting," id. at 462-463, which under Zanetti, is required before imposing joint venture liability. See Zanetti, 454 Mass. at 470 (Appendix).
Here, like in Simpkins, there is no evidence of the defendant's participation in the crime prior to or during its commission. While the defendant was present and knew about the firearm between the time of the shooting and the time of the firearm's disposal, his actions did not show a level of participation that might constitute more than "mere presence" and "mere knowledge." Zanetti, 454 Mass. at 470 (Appendix). Contrast Commonwealth v. Humphries, 465 Mass. 762, 765-768 (2013). Therefore, the existence of an agreement by the defendant to aid his brother in possessing the firearm must be inferred from his actions after the commission of the crime, i.e., after the firearm was thrown onto the roof of Blanchards.
The defendant's flight from the scene with his brother and his statement to the officers, however, simply do not support a finding that the defendant had contemplated such involvement prior to the firearm's disposal. Contrast Commonwealth v. Batista, 53 Mass. App. Ct. 642, 647 (2002). Here, the evidence showed that the brother had the gun in his actual possession at the point it was discarded and that there was no evidence that the defendant actually possessed it at any time before that. Accordingly, as a matter of law, the Commonwealth did not satisfy its burden of proving beyond a reasonable doubt that the defendant had agreed, before or during the commission of the crime, to aid his brother while his brother had possession of the firearm, or after he disposed of it.
The defendant's motion for a required finding of not guilty on the charges of possessing a firearm without a license and possessing a loaded firearm without a license should have been allowed. Therefore, the judgments are reversed, the verdicts are set aside, and judgment shall enter for the defendant on both counts.
So ordered.
Reversed; verdicts set aside.
Humphries, a case on which the Commonwealth seeks to rely, does not suggest otherwise. In Humphries, the defendant was convicted of possession of a firearm as a joint venturer where the evidence showed, in addition to his presence during the commission of the crime, an agreement between him and the principal to act in concert. Humphries, 465 Mass. at 763, 765-767. Notably, the defendant enlisted the principal to assist him in a fight and asked him to "jump in the fight if necessary," which is exactly what occurred. Id. at 767.