Opinion
14-P-195
06-08-2015
COMMONWEALTH v. CHARLIE DONTAY VICK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a jury trial in Superior Court, the defendant was convicted of unlawful possession of a rifle, unlawful possession of a large capacity weapon, unlawful possession of a large capacity feeding device, receiving a firearm with knowledge that its identification number had been defaced, and receiving stolen goods (a checkbook). The weapons convictions all relate to a firearm known as an SKS assault rifle that police discovered in the trunk of the defendant's car during a search conducted on October 18, 2011. For the reasons set forth below, we affirm in part and reverse in part.
The search. The search of the defendant's car took place while the defendant was incarcerated on other charges. At that time, it was parked in a private driveway at the duplex apartment building where his father lived. Police had obtained a search warrant for the father's residence to look for firearms that the father may have been storing for his son. The warrant covered not only the father's apartment (the entrance to which was on the right side of the building), but also "common areas, the basement, the curtilage, detached structures, and the motor vehicle within the curtilage (driveway) of the target [the defendant's father]." The vehicle referenced in the warrant (and underlying application) was the father's car, which was "parked at the top of the driveway closest to the street." The defendant's car was parked in the far back of the driveway, in front of a wooden stockade fence that appears to serve as the back border of the property.
The defendant filed a motion to suppress, asserting that the search of his car was not within the scope of the search warrant. After considering the material the parties submitted, the motion judge agreed with the Commonwealth's position that the driveway was within the curtilage of the premises even though the defendant's car was not specifically referenced in the search warrant. See Commonwealth v. Signorine, 404 Mass. 400, 403-404 (1989). Challenging that ruling on appeal, the defendant points out that the judge relied in part on the entrance to the father's apartment being "on that side of the building closest to the driveway." As the Commonwealth appropriately concedes, this factual premise was clearly erroneous. The question, then, is whether the judge's conclusion that the driveway was within the curtilage of the building was correct even though this one factual premise was erroneous.
There was no evidentiary hearing as such, but the parties agreed that the facts were essentially uncontested. Each side relied on the facts referenced in the application for a search warrant (including photographs of the property appended thereto) as well as additional photographs submitted.
The search warrant application itself shows that the driveway is on the left of the building, while the door to the father's apartment was on the right side.
The driveway here is a narrow one that runs from the street, alongside the duplex house to the back yard. It lies within wooden fences that demarcate the property from other lots in the area (an effect that is not undone by the fact that a visually porous chain link fence lies between the driveway and the front yard of the house). Moreover, at least at the time the various photographs were taken, the father's car was parked at the end of the driveway, preventing others from being able to access it. We agree with the motion judge and the Commonwealth that the facts of this case are very similar to those of Commonwealth v. Fernandez, 458 Mass. 137, 141-145 (2010) (holding that the driveway there was within the curtilage of the three-family house at issue), and not at all like those of Commonwealth v. McCarthy, 428 Mass. 871, 872-876 (1999) (holding that a visitor's parking space in a large parking lot some twenty-five feet from an apartment complex -- and through which other tenants and visitors would regularly traverse -- was not within the curtilage of a particular apartment in that complex). The judge correctly denied the motion to suppress.
Sufficiency. The defendant makes three different challenges to the sufficiency of the evidence, which we address in turn.
1. Possession. The defendant admits that the gun was his, but argues that the evidence was insufficient that he possessed it on October 18, 2011 (the date underlying the charge). It is uncontested that the defendant was incarcerated on that date, and that the Commonwealth therefore had to rely on a theory of constructive possession. To establish constructive possession, the Commonwealth was required to prove that the defendant had knowledge of the weapon "coupled with the ability and intention to exercise dominion and control [over it]." Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004) (citations and quotations omitted). The defendant concedes that there was sufficient evidence of both knowledge and intent to control, but argues that the defendant had no actual ability to control the weapon while he was incarcerated. However, the case law long has recognized one's ability to control something through agents, see, e.g., Commonwealth v. Campiti, 41 Mass. App. Ct. 43, 46-47 (1996), and there is no reason that this principle should not apply to persons who are incarcerated. On the facts of this case, there was sufficient evidence upon which reasonable jurors could conclude beyond a reasonable doubt that the defendant continued to control the weapon through his father.
2. Defaced serial numbers. The Commonwealth presented evidence that a number stamped on the firearm by an importer had been defaced. However, as the defendant points out and the Commonwealth now laudably concedes, that number was not the "serial number" of the firearm, which is defined by the statute in a manner that does not apply. The judgment of conviction for receiving a firearm with a defaced serial number (and accompanying sentence) therefore must be vacated.
3. Large capacity weapon. The statute defines "large capacity weapon" in pertinent part as "any firearm . . . that is semiautomatic and capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device . . . ." G. L. c. 140, § 121. The Commonwealth presented the testimony of a ballistician who had fired the weapon to determine its operability. He recounted to the jury the statutory definition of "semiautomatic" (consistent with the statute) and testified that in his opinion the weapon met that definition. See Commonwealth v. Johnson, 461 Mass. 44, 53 (2011); Commonwealth v. Amorin, 14 Mass. App. Ct. 553, 556-558 (1982). Similarly, the ballistician's testimony that the weapon had been modified to "accept this 40 round magazine" found with it provided ample proof that the weapon was "capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device." G. L. c. 140, § 121.
Duplicative convictions. We agree with the defendant that unlawful possession of a firearm is a lesser-included crime of unlawful possession of a large capacity weapon. In fact, the Supreme Judicial Court has directly held this to be the case. Commonwealth v. Rivas, 466 Mass. 184, 188 (2013). See Commonwealth v. Costa, 65 Mass. App. Ct. 227, 235 (2005) (holding that the Commonwealth appropriately conceded that such charges are duplicative). The Commonwealth now asks us to reconsider the holding of these cases based on a textual argument that it asserts was not addressed by those cases. Putting aside our inability to reconsider a holding of the Supreme Judicial Court, we discern little merit in the Commonwealth's argument. Accordingly, the conviction for unlawful possession of a firearm (the lesser included offense) must be vacated as duplicative.
Conclusion. On the indictment charging unlawful possession of a firearm, the judgment is vacated, the verdict is set aside, and the indictment is to be dismissed. On the indictment charging receiving a weapon with a defaced serial number, the judgment is reversed, the verdict is set aside, and judgment is to be entered for the defendant. The other judgments are affirmed.
The sentences imposed for the two convictions that are being vacated or reversed were to run concurrently with those of the other convictions. There is no need for resentencing. See Commonwealth v. Gomes, 470 Mass. 352, 378 (2015).
So ordered.
By the Court (Berry, Milkey & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 8, 2015.