Opinion
19-P-704
12-10-2020
COMMONWEALTH v. ANGELO TEIXEIRA.
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
The defendant, Angelo Teixeira, appeals from convictions after a Superior Court jury trial of unlawfully carrying a firearm, G. L. c. 269, § 10 (a), unlawful possession of ammunition, G. L. c. 269, § 10 (h) (1), and unlawfully carrying a loaded firearm, G. L. c. 269, § 10 (n). He also appeals from the sentence enhancement imposed after a jury-waived trial on the armed career criminal portion of the indictments pursuant to G. L. c. 269, § 10G (b), the Armed Career Criminal Act (ACCA). Concluding that there was sufficient evidence of the crimes charged and that the defendant's complaints regarding closing argument and the jury waiver are without merit, we affirm.
The defendant also pleaded guilty to two counts of intimidation of a witness, G. L. c. 268, § 13B. The defendant raises no issue on appeal concerning these convictions.
1. Background. On June 20, 2015, at approximately 4:00 P.M., in the Dorchester section of Boston, two eyewitnesses in a motor vehicle observed the defendant get off his bike, crouch by the right rear tire of a minivan, and reach into his sweatpants. One eyewitness heard two gunshots coming from her left, and noticed the defendant pull out what she believed was a black semi-automatic handgun and return fire over the hood of her vehicle in the direction of Humphreys Street on her left. The eyewitnesses continued driving and soon noticed the defendant sitting on the sidewalk on the left-hand side of Dudley Street, leaning "up against a corner store building." The defendant was holding his leg as if he was in pain.
She recalled hearing about twelve gunshots throughout the incident.
Nearby surveillance cameras captured a group standing on Wendover Street and then looking up towards Dudley Street as if something caught their attention. The group then started walking towards Dudley Street. Two of the men, John Archer, wearing a white T-shirt, and Kenny Santos, wearing a red T-shirt, are friends of the defendant. After a few seconds, Deshawn Harris, also a friend of the defendant, ran "full tilt" down Wendover Street away from Dudley Street with another individual. Harris then turned into the driveway of 11 Wendover Street, and emerged minutes later "grabbing onto his belt buckle area" and walked back towards Dudley Street.
Meanwhile, Santos, wearing his red T-shirt, entered a convenience store on Dudley Street near Wendover Street and put something into a trash bin lined with a white trash bag. Harris then walked into the store, removed the trash bag, and walked back down Wendover Street and into the driveway of 11 Wendover Street with the trash bag in hand. As an officer responded to the shooting, he noticed an ambulance parked on the left side of Dudley Street near the convenience store and medical personnel treating the defendant for a leg injury.
At the scene of the shooting, police recovered thirty-one fired cartridge casings of three different calibers, ten of which were .9 millimeter Luger casings. A damaged bicycle was recovered in the area of Dudley and Nonquit Streets, and blood was observed on the sidewalk in front of a restaurant next to the convenience store on Dudley Street. In the driveway of 11 Wendover Street, officers found a white trash bag containing a spare magazine holding ten rounds of .9 millimeter Luger ammunition and, wrapped up in a sweatshirt, two firearms: (1) a SCCY .9 millimeter semiautomatic pistol with an obliterated serial number containing an empty magazine capable of holding ten rounds of ammunition; and (2) a Taurus .9 millimeter semiautomatic pistol holding thirteen .9 millimeter Luger cartridges.
A criminalist examined the ballistics evidence and testified to a reasonable degree of ballistics certainty that the SCCY pistol fired all ten of the .9 millimeter shell casings recovered from the scene, and that the spare magazine found inside the trash bag was compatible with the SCCY. One of two fingerprints recovered from the magazine found inside of the SCCY firearm matched the defendant's right index finger.
A grand jury indicted the defendant of four counts of attempted assault and battery by means of a firearm, G. L. c. 265, § 15F; one count of unlawfully carrying a firearm, as a level three armed career criminal; two counts of unlawful possession of ammunition, as a level three armed career criminal; one count of carrying a loaded firearm; one count of receiving a firearm with a defaced serial number, G. L. c. 269, § 11C; and two counts of witness intimidation. After a trial, a jury convicted the defendant of unlawfully carrying a firearm, unlawful possession of ammunition, and unlawfully carrying a loaded firearm. The jury acquitted him of attempted assault and battery and possession of a firearm with a defaced serial number. The defendant waived his right to a jury trial on the armed career criminal portion of the indictments, and a Superior Court judge convicted him after a trial pursuant to G. L. c. 269, § 10G (b), but not G. L. c. 269, § 10G (c). This appeal followed.
The judge dismissed one of the unlawful possession of ammunition charges at the Commonwealth's request.
2. Sufficiency of the evidence of possession of ammunition. In reviewing the sufficiency of the evidence, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014). This determination, moreover, "is to be measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
"To convict the defendant of unlawful possession of ammunition, the Commonwealth was required to prove that the defendant knowingly possessed ammunition that met the legal definition of ammunition." Commonwealth v. Johnson, 461 Mass. 44, 53 (2011). Accord Instruction 7.625 of the Criminal Model Jury Instructions for Use in the District Court (2017). "The term 'ammunition' means, among other things, cartridges, cartridge cases, and bullets." Johnson, supra.
Here, the jury could reasonably find that the defendant unlawfully possessed the spare magazine holding ten rounds of .9 millimeter Luger ammunition that was found in the white trash bag. An eyewitness saw the defendant remove a black semiautomatic firearm from his waistband and fire towards Humphreys Street. Subsequently, the police recovered a black SCCY .9 millimeter semiautomatic handgun with an empty ammunition clip that had the defendant's fingerprint on it from 11 Wendover Street. At the scene of the shooting, the police found ten .9 millimeter Luger cartridge casings that were consistent with being fired by the SCCY, and the spare magazine with ten rounds of ammunition, found in the white trash bag nearby the firearm, was compatible with the SCCY.
Santos, as documented by the video footage, walked just past the entrance of the convenience store on Dudley Street before entering. The jury could reasonably infer that Santos went to pick up the SCCY handgun and the spare magazine from the defendant, who was injured in front of the restaurant a storefront away from the convenience store. The jury could reasonably infer that Santos then dropped the handgun and magazine in the white trash bag inside the convenience store, and that Harris picked up the white trash bag, walked out, and dropped it off at 11 Wendover Street. See Waller, 90 Mass. App. Ct. at 303, quoting Woods, 466 Mass. at 713 (inferences "need only be reasonable and possible"). Accordingly, there was sufficient evidence that the defendant possessed the spare magazine of ammunition.
3. Basis of conviction. The defendant argues that the jury may have based his conviction of unlawful possession of ammunition on the ammunition fired from the SCCY handgun, rather than the spare magazine. If that were true, the conviction would be duplicative of the conviction for possession of a loaded firearm. See Johnson, 461 Mass. at 54. Because the defendant did not raise this issue at trial, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 145 n.19 (2001).
Here, the jury were informed that the possession of ammunition charge submitted to them was based on the ten rounds of ammunition found in the spare magazine. At jury empanelment, the judge stated the defendant "had also possessed a separate set of ammunition." In reading the indictment to the jury on the unlawful possession of ammunition charge, the clerk specified the defendant was charged with possessing "[t]en .9 millimeter Luger cartridges marked FC contained within a magazine." In her instructions to the jury, the judge again stated that "[t]he ammunition the Commonwealth is alleging Mr. Teixeira possessed, is a 10 .9 millimeter Luger cartridges marked FC contained within a magazine." In light of this, we think it decidedly unlikely that the jury based the conviction on ammunition that had at one point been inside a magazine, rather than the ammunition contained within a magazine that was presented to them.
This case is unlike Grandison, 433 Mass. at 146-147, in which the Supreme Judicial Court held that there was a substantial risk of miscarriage of justice where it was unclear on which altercation the jury based the defendant's conviction of resisting arrest: an incident which took place during his arrest, or a scuffle at the police station. In Grandison, the trial judge failed to inform the jury that the video evidence at the police station could not be considered in their deliberation on the resisting arrest charge, and the prosecutor featured the events at the police station "prominently" in the closing. Id. By contrast, here the weight of the information provided to the jury conveyed that the ammunition in the spare magazine was the basis for the possession of ammunition charge. There was no substantial risk of miscarriage of justice.
4. Admission of the Taurus handgun. A judge may admit evidence "where its prejudicial effect does not substantially outweigh its probative value," Commonwealth v. Imbert, 479 Mass. 575, 585 (2018), and we will not disturb the judge's ruling "absent palpable error." Commonwealth v. Khan, 92 Mass. App. Ct. 487, 495 (2017), quoting Commonwealth v. Simpson, 434 Mass. 570, 579 (2001). Because the defendant objected to the admission of the Taurus handgun, we review for prejudicial error. See Commonwealth v. Aviles, 461 Mass. 60, 67 (2011).
The trial judge did not err in admitting the Taurus handgun. The fact that the SCCY and the Taurus were found together, wrapped in a sweatshirt, in the driveway of 11 Wendover Street corroborates the Commonwealth's theory that the defendant's friends retrieved the SCCY from him and disposed of it in the trash bin. The Commonwealth's theory was that Harris, who had the Taurus handgun, took the trash bag from the convenience store and stashed both the SCCY and Taurus in the driveway of 11 Wendover Street. The presence of the Taurus handgun with the SCCY handgun traces possession of the SCCY back to the defendant. That both handguns were found together also supports the theory that both the Taurus and the SCCY were community guns being stored at 11 Wendover Street.
The defendant contends that the admission of the Taurus handgun was prejudicial in that it confused the jury, leading them to find him guilty of unlawfully carrying a loaded firearm based on the Taurus and not the SCCY. We disagree. First, the judge specifically instructed the jury that the loaded firearm charge was based on the "SCCY, model CPX-2 .9 millimeter Luger." See Commonwealth v. Brown, 479 Mass. 163, 173 (2018), citing Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) ("We presume that a jury follow all instructions given to it"). Second, the jury heard testimony that Harris was charged with possession of the Taurus and the prosecutor referred to the Taurus as belonging to Harris in her closing argument.
Contrary to the defendant's argument, the acquittal for receiving a firearm with a defaced serial number does not demonstrate that the guilty verdict for unlawfully carrying a loaded firearm was predicated on the Taurus handgun. To be guilty of receiving a firearm with a defaced serial number, the defendant must "receive[] a firearm with knowledge that its serial number or identification number has been . . . defaced." G. L. c. 269, § 11C. Although it was undisputed that the SCCY had a defaced serial number, the jury could reasonably have determined that the defendant did not know that the serial number on the SCCY was defaced. The jury heard testimony about community guns, or guns that are placed in a known, specific area to which multiple people have easy access. The jury also heard that, after the shooting, both the Taurus and the SCCY were returned to 11 Wendover Street where they were found together. From this, the jury could have inferred that the SCCY handgun was a community gun, rather than the defendant's personal gun, and that the defendant did not necessarily know that the serial number had been defaced.
This case is distinguishable from Commonwealth v. Barbosa, 463 Mass. 116, 123 (2012), where the Supreme Judicial Court held that it was improper to admit in evidence a handgun that could not have been used in the commission of the murder of which the defendant was charged. In that case, the handgun was admitted to show the defendant's "access to or familiarity with firearms." Id. at 121. Here, the Taurus was admitted in evidence not to show the defendant's access to or familiarity with firearms, but to support the Commonwealth's theory of the case and trace possession of the SCCY handgun to the defendant. As such, the trial judge acted within her discretion in determining that the probative value of the Taurus outweighed the risk of prejudice to the defendant.
5. Closing argument. So long as the prosecutor's closing argument is grounded in the evidence, the prosecutor may "argue 'the evidence and the fair inferences which can be drawn from the evidence.'" Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017), quoting Commonwealth v. Braley, 449 Mass. 316, 329 (2007). "Because the defendant did not object to the prosecutor's closing statement at trial, we review [any error] for a substantial risk of a miscarriage of justice." Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 (2018).
Here, a police sergeant testified that the firearms were processed when they were brought to the station by being placed in a fuming tank to discover fingerprints. Although the sergeant apparently misidentified which officer performed this task, the prosecutor was entitled to argue based on the sergeant's testimony. See Commonwealth v. Delacruz, 443 Mass. 692, 693-694 (2005) (prosecutor could argue that witness's statement to police, implicating defendant, was made "long before" witness negotiated deal with prosecutor where witness testified he had not contacted prosecutor before speaking to police). Accordingly, the prosecutor properly argued that the SCCY was fumed before the defendant's arrest three days later.
6. Armed career criminal enhancement. The ACCA, G. L. c. 269, § 10G, "imposes enhanced sentencing on a person who, having previously been convicted of at least one 'violent crime' . . . is convicted of possession of a firearm or ammunition." Commonwealth v. Eberhart, 461 Mass. 809, 814 (2012). A "violent crime" is defined, inter alia, as "any crime punishable by imprisonment for a term exceeding one year . . . that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another." G. L. c. 140, § 121. This is referred to as the "force clause."
The Commonwealth correctly concedes that clauses (ii) and (iii) ("enumerated crimes provisions") are not applicable. Clause (iv) ("residual clause") was held unconstitutionally vague by the Supreme Judicial Court in Commonwealth v. Beal, 474 Mass. 341, 349-351 (2016). See Johnson v. United States, 576 U.S. 591, 594-597 (2015).
"To determine whether a prior conviction qualifies as a predicate offense under the ACCA, judges usually apply a 'categorical approach.'" Commonwealth v. Widener, 91 Mass. App. Ct. 696, 702 (2017), quoting Eberhart, 461 Mass. at 815. "Under this approach, the judge looks 'only to the fact of conviction and the statutory definition of the prior offense.'" Widener, supra, quoting Eberhart, supra. "However, if the prior conviction was under a broad statute encompassing multiple crimes, not all of which are violent, a judge should apply a 'modified categorical approach,' which permits consideration of extrinsic evidence." Widener, supra, quoting Eberhart, supra at 816. Assault and battery, G. L. c. 265, § 13A, is one such crime. See Eberhart, supra at 818.
The predicate here, however, was assault and battery by means of a dangerous weapon (a pellet gun), G. L. c. 265, § 15A (a). We have repeatedly held that assault and battery by means of a dangerous weapon is categorically a violent crime under the force clause. See Widener, 91 Mass. App. Ct. at 703; Commonwealth v. Rezendes, 88 Mass. App. Ct. 369, 372 (2015). Moreover, we see no way in which an assault and battery by means of a dangerous weapon with a pellet gun can be committed without the use, attempted use, or threatened use of physical force. Accordingly, the trial judge properly found that this conviction was an ACCA predicate.
7. Jury waiver. A criminal defendant has a fundamental right to a jury trial. See Commonwealth v. Osborne, 445 Mass. 776, 780 (2006). A defendant may waive this right if his decision to do so is made voluntarily and intelligently. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008), citing Ciummei v. Commonwealth, 378 Mass. 504, 507-509 (1979). For a waiver to be valid, the defendant must sign a written waiver, and the court must conduct a colloquy with the defendant about the waiver. See Dussault, supra. "The colloquy . . . is only evidence of whether a defendant's waiver . . . was voluntary and intelligent. It is not an independent constitutionally required prerequisite to a valid waiver of the right to a jury trial." Commonwealth v. Garcia, 88 Mass. App. Ct. 307, 310 (2015), quoting Commonwealth v. Schofield, 391 Mass. 772, 775 (1984). The requirements for a colloquy to be adequate are limited. See Schofield, supra. "'[T]he defendant, being competent, must simply have indicated a comprehension of the nature of the choice' between a bench and jury trial." Id. at 776, quoting Ciummei, supra at 510. The defendant's understanding may be based upon information provided by the judge or defendant's counsel, the defendant's own personal knowledge, or another source. See Schofield, supra. These same procedural safeguards apply when a defendant waives the right to a jury trial during a sentence enhancement proceeding. See Dussault, supra at 548.
There is no rigid list of questions that a judge must follow in determining whether a defendant has voluntarily and intelligently waived the right to a jury trial. Ciummei, 378 Mass. at 510-511. "The omission of inquiries suggested as appropriate in Ciummei alone are not enough to make a colloquy inadequate." Commonwealth v. Hendricks, 452 Mass. 97, 107 (2008). "So long as a colloquy occurs, the sole focus of our review is whether the colloquy provided an evidentiary record on which the judge could find the waiver was voluntary and intelligent." Id. at 107-108.
Here, both the defendant and his attorney signed a written waiver. The judge conducted a colloquy which confirmed that the defendant (1) signed the waiver form; (2) understood that he had the right to a jury trial on the enhancements; (3) initially elected to have a jury hear the enhancements; and (4) decided, after the jury trial, to have the judge hear the enhancements. Immediately after the colloquy, the court granted a brief recess for the defendant to confer with his lawyer.
Although the colloquy was sparse, the judge's determination that the defendant voluntarily and intelligently waived his right to a jury trial was supported by the record. See Schofield, 391 Mass. at 775 (extended colloquy necessary only where judge determines defendant needs "compendious reminder" of right being waived). The defendant's understanding of the difference between a jury trial and a bench trial was established by the defendant's own jury trial on the underlying charges, which was held in front of the same judge and had ended less than two weeks before the enhancement proceedings. At this trial, the defendant witnessed voir dire and understood that he could participate in selecting jurors. The judge's pretrial charge also explained that the judge in a jury trial decides questions of law and instructs the jury on the law, but that the jury determine the defendant's guilt or innocence. The jury were instructed that their verdict must be unanimous. Additionally, the judge instructed that she would be responsible for sentencing the defendant if the jury found him guilty.
Further, the judge's failure to ask the defendant if he was intoxicated or coerced is not fatal. See Schofield, 391 Mass. at 773 n.1. During the initial trial, the judge was able to observe the defendant and would have been able to detect a change in the defendant's demeanor at the enhancement proceedings. Furthermore, the defendant had originally requested a jury trial for the enhancements, but had changed that decision to a bench trial on the day of the jury verdicts on the underlying charges. After the colloquy, the defendant interrupted the judge and asked to speak to his attorney (a request, of course, that the judge granted). The record, therefore, demonstrated that the defendant was acting rationally and guiding the decision making.
Judgments affirmed.
By the Court (Desmond, Ditkoff & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 10, 2020.