Opinion
20-P-267
05-20-2021
COMMONWEALTH v. William THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, William Thompson, appeals from his convictions of, among other offenses, one count of illegal possession of a large capacity feeding device in violation of G. L. c. 269, § 10 (m ), and one count of illegal possession of a loaded firearm in violation of G. L. c. 269, § 10 (n ). On appeal, the defendant claims that (1) the Commonwealth produced insufficient evidence that he knew (a) the firearm's magazine could hold more than ten rounds of ammunition and (b) the firearm was loaded; and (2) a new trial is warranted on the basis of improper comments made by the prosecutor during closing argument. We agree with the defendant that the evidence here was insufficient to sustain his conviction of illegal possession of a large capacity feeding device under § 10 (m ). We disagree with his other claims. Accordingly, the judgment on count 3 for illegal possession of a large capacity feeding device is reversed, the verdict is set aside, and judgment shall enter for the defendant on that count. The remaining judgments are affirmed.
Background. The jury could have reasonably found the following facts. At around 2:30 A.M. on May 31, 2018, Officer Joel Rosemond received notice of a ShotSpotter activation in the area of 126 Benton Street in Springfield. As Officer Rosemond and his partner approached the intersection of Benton and Wilbraham Streets, they observed a white Audi. They heard several gunshots and observed a muzzle flash inside the Audi. The Audi then drove off, and Officer Rosemond activated the cruiser's emergency lights and sirens. Officer Rosemond described the driver, later identified as the defendant, as a black male wearing a white shirt.
During the course of the ensuing pursuit, the defendant struck another cruiser, ran numerous stop signs, and proceeded the wrong way down a one-way street. The defendant then stopped suddenly, causing Officer Rosemond's cruiser to crash into the rear of the Audi.
The defendant exited his vehicle and the pursuit continued on foot, with multiple officers chasing after him. He ran into a nearby backyard where he attempted to scale a fence. The defendant was apprehended by Officer Rosemond and was eventually subdued and placed under arrest. Officer Clay Canning, who did not join in the foot pursuit, found a firearm in the front passenger's side of the Audi. The firearm had its safety off and was ready to be fired with its magazine inside the handle.
Detective Joshua Dufresne also responded to the ShotSpotter activation. He observed the defendant fire "about eight rounds" through the Audi's sunroof. Eight shell casings were recovered from the Audi. One live round was ejected from the firearm, and another live round was located in the magazine. We will set forth additional facts as necessary to our discussion.
Discussion. 1. Sufficiency. In reviewing the defendant's sufficiency claims, "[w]e consider whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018), citing Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "The evidence may be direct or circumstantial, and we draw all reasonable inferences in favor of the Commonwealth." Ayala, supra, citing Commonwealth v. Rakes, 478 Mass. 22, 32 (2017).
a. Large capacity knowledge. The defendant first claims that the Commonwealth presented insufficient evidence that he knew the firearm's magazine could hold more than ten rounds of ammunition. We agree.
A conviction under G. L. c. 269, § 10 (m ), requires the Commonwealth to prove beyond a reasonable doubt "that a defendant either knew the firearm or feeding device met the legal definition of ‘large capacity’ or knew it was capable of holding more than ten rounds of ammunition." Commonwealth v. Cassidy, 479 Mass. 527, 529, cert. denied, 139 S. Ct. 276 (2018). "[K]nowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon." Id. at 537, quoting Staples v. United States, 511 U.S. 600, 615 n.11 (1994). In Cassidy, the Supreme Judicial Court identified a number of factors relevant to whether a defendant knew that a firearm could hold more than ten rounds of ammunition. See Cassidy, supra at 537-538 (length of firearm ownership, familiarity with firearms, and obviously large magazines circumstantially demonstrated that defendant knew magazines held more than ten rounds).
These factors were absent in the present case. No evidence was presented with respect to the defendant's ownership history of the firearm recovered from the Audi; the Commonwealth does not argue otherwise. Moreover, because Officer Canning testified that the magazine was inserted in the firearm, "the size of the magazine would not be apparent." Commonwealth v. Resende, 94 Mass. App. Ct. 194, 202 (2018). Finally, there was no evidence that the defendant was particularly familiar with firearms and firearm magazines. Contrast Cassidy, 479 Mass. at 537 (defendant testified to familiarity with firearms).
The Commonwealth posits that the jury could have reasonably inferred the defendant's knowledge on the basis of the eight shell casings recovered from the Audi, the two live rounds recovered from the firearm, and the single shot required to activate ShotSpotter -- bringing the total to eleven rounds. We are not persuaded that the jury could have reached this conclusion beyond a reasonable doubt. See Commonwealth v. Gonzalez, 475 Mass. 396, 409-414 (2016) (reversing conviction where jury piled "inference upon inference" to reach verdict [citation omitted]). Because eight shell casings were recovered from the Audi, to conclude that ShotSpotter was activated by an additional shot that did not leave a shell casing behind would have required impermissible speculation. There was no evidence presented that the defendant loaded the firearm himself. Even in the light most favorable to the Commonwealth, the jury could not have concluded that the defendant knew the magazine "was capable of holding more than ten rounds of ammunition" (emphasis added). Cassidy, 479 Mass. at 529.
Although the magazine recovered could hold sixteen rounds of ammunition, it was inserted in the firearm, there was no evidence that the defendant inserted it, and there was no indication that it was "obvious[ly] large." Cassidy, 479 Mass. at 538 (knowledge of magazine size inferred by, among other things, "thirty round ‘banana-style’ magazines").
b. Loaded firearm knowledge. Next, the defendant claims that his conviction of illegally possessing a loaded firearm must be reversed because there was insufficient evidence that he knew the firearm was loaded. We disagree.
"[T]o sustain a conviction under G. L. c. 269, § 10 (n ), the Commonwealth must prove that a defendant knew the firearm he or she possessed was loaded." Commonwealth v. Brown, 479 Mass. 600, 601 (2018). Relying on this court's decision in Commonwealth v. Mitchell, 95 Mass. App. Ct. 406 (2019), the defendant argues that repeatedly discharging the firearm bears only on whether the gun was actually loaded, not on whether the defendant knew the gun was loaded. We do not read Mitchell that rigidly. In Mitchell, the Commonwealth introduced evidence that Mitchell and another man got into a verbal altercation outside a nightclub, which resulted in Mitchell pulling a gun from his belt and firing it four times. See id. at 408. By contrast, Mitchell testified that the other man pulled a gun on him and that during the struggle for the gun, it discharged three times. See id. This court reversed Mitchell's conviction of unlawful possession of a loaded firearm because a substantial risk of a miscarriage of justice resulted from the failure to instruct the jury that the Commonwealth was required to prove that the defendant knew the gun was loaded. See id. at 420. This court reasoned that if the defendant had no prior relationship with the gun, the fact that it was fired several times could not demonstrate that he knew it was loaded. See id. at 413, 418.
However, the majority acknowledged "[i]t is reasonable to infer that one who brings a gun to a location knows whether or not it is loaded." Mitchell, 95 Mass. App. Ct. at 419. In the dissenting opinion's view, the issue of knowledge was not disputed at trial and, in any event, the defendant knew the gun was loaded when a bullet discharged upon pulling the trigger. Id. at 431-432 (Neyman, J., dissenting).
Mitchell is distinguishable. In the light most favorable to the Commonwealth, the evidence here was that the defendant was in sole possession and control of the gun at the time it was fired. We do not agree with the defendant that repeatedly firing the gun into the air would allow a rational trier to "think he was clicking away on an empty gun." Rather, the jury could have reasonably found that because the defendant rapidly discharged eight shots through the Audi's sunroof, he knew that the firearm was loaded. Contrast Commonwealth v. Grayson, 96 Mass. App. Ct. 748, 755 (2019) (carrying firearm in waistband, without more, insufficient to prove knowledge that firearm was loaded).
2. Closing argument. Finally, the defendant claims that several improper remarks made by the prosecutor during closing argument resulted in a substantial risk of a miscarriage of justice. We disagree.
The following additional facts are relevant to this claim. The defendant testified in his own defense. He testified that while he was standing in a backyard on the evening in question, a group of people ran past him, pushing him to the ground. He thought that he was being mugged, and claimed that no one ever identified themselves as a police officer. He denied ever possessing the firearm. In closing argument, defense counsel argued the possibility that the defendant was just an innocent bystander and that police could have apprehended "the wrong guy."
The prosecutor began his closing argument by comparing the facts articulated by defense counsel to a childhood game the prosecutor experienced. In this game, the prosecutor's cousin would distract the prosecutor's attention by waving one hand in the air, and then striking him with the other hand. The prosecutor compared the defendant's version of events to the hand waving in the air. Later, in response to the defense that police apprehended the wrong person, the prosecutor stated "[t]here's an old saying they teach lawyers: When you have the facts, pound the facts. When you have the law, pound the law. When you have neither ... pound the table. I'd suggest to you that [the defendant's argument] is the definition of pounding the table." The defendant claims that the cumulative effect of these asserted improprieties warrants a new trial.
Although the prosecutor's comments outlined above were perhaps better left unsaid, we cannot conclude that they were improper. A prosecutor may use "enthusiastic rhetoric, strong advocacy, and excusable hyperbole" during closing argument, Commonwealth v. Costa, 414 Mass. 618, 629 (1993), but may not characterize the entire defense as a "sham," Commonwealth v. Lewis, 465 Mass. 119, 130 (2013). Here, comparing the defendant's defense to a childhood game and characterizing defense counsel's argument as simply "pounding the table" constituted "excusable hyperbole." Costa, supra. The judge also instructed the jury that the closing arguments were not evidence. See Commonwealth v. Williams, 450 Mass. 645, 652 (2008) ("Jurors are presumed to follow a judge's instructions"). Our review of evidence indicates that the Commonwealth's case was strong. Considering as we must the prosecutor's comments "in the context of the entire argument, the testimony, and the judge's instruction to the jury", Commonwealth v. Hrabak, 440 Mass. 650, 654 (2004), we conclude that they were proper.
Even assuming that the prosecutor's comments were improper, they did not create a substantial risk of a miscarriage of justice. Under that standard, we must decide "if we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In light of the strength of the Commonwealth's case, defense counsel's failure to object to the now-challenged remarks, our review of the closing argument as a whole, and the judge's instructions to the jury, it is apparent that such a risk did not occur in this case. See Commonwealth v. Grandison, 433 Mass. 135, 141-143 (2001).
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3. Conclusion. For the foregoing reasons, the judgment on count 3 for illegal possession of a large capacity feeding device is reversed, the verdict is set aside, and judgment shall enter for the defendant on that count. The remaining judgments are affirmed.
So ordered.
reversed in part; affirmed in part