Opinion
19-P-1314
12-08-2020
COMMONWEALTH v. ROY GOODWIN.
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
A Superior Court jury convicted the defendant of multiple counts of illegally possessing large capacity feeding devices, G. L. c. 269, § 10 (m); improper storage of a firearm, G. L. c. 140, § 131L; receiving a firearm without a serial number, G. L. c. 269, § 11C; and possession with the intent to distribute marijuana, G. L. c. 94C, § 32C. On appeal, the defendant claims that (1) the indictments should have been dismissed because of a flawed presentation to the grand jury, (2) the evidence seized during the execution of search warrants should have been suppressed because the information in the warrant applications did not establish probable cause to search, (3) the evidence against him at trial was insufficient, (4) the prosecutor's closing argument was improper, and (5) the trial judge erred in responding to a question from the deliberating jury. We affirm.
The defendant also appeals from an order by a single justice of this court denying the defendant's motion to stay his sentence pending appeal. We do not address this issue because it is moot. A stay of the defendant's sentence was subsequently allowed in the Superior Court.
Background. In April 2014, Douglas police officers obtained a warrant to search the defendant's home for a defaced firearm. The warrant was based, in large part, on information police received from Robin Peters, the defendant's former live-in girlfriend. While searching the attic, officers observed approximately forty marijuana plants in various stages of growth, along with dried marijuana and paraphernalia associated with marijuana cultivation. The officers applied for and obtained a second warrant to seize the marijuana and related paraphernalia, which they executed the following day. The police also seized from a crawlspace an unlocked box containing a firearm with a defaced serial number that was loaded with a large capacity magazine, and eighteen additional large capacity magazines.
Discussion. 1. Motions to dismiss. The defendant claims that the indictments for unlawful possession of large capacity feeding devices should have been dismissed because the evidence before the grand jury did not establish probable cause to believe that he constructively possessed them and knew they held more than ten rounds of ammunition, see G. L. c. 140, § 121. He further claims that the grand jury proceedings were tainted by the prosecutor's failure to disclose to the grand jury that the defendant was incarcerated when the warrants were executed. We are not persuaded.
"[D]ismissal of an indictment is not required [a]s long as the evidence before the grand jury was sufficient to warrant a conclusion of probable cause and the integrity of the proceedings was unimpaired" (quotations and citation omitted). Commonwealth v. Fernandes, 483 Mass. 1, 6 (2019). Probable cause in this context "is a 'considerably less exacting' standard than that required to support a conviction at trial." Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020), quoting Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984).
Here, the grand jury heard that the magazines and a defaced firearm were found by the police in a crawlspace in the defendant's residence. The grand jury also heard evidence that the defendant was a gunsmith and that, according to the defendant, the magazines were intended as a gift for him from Peters. The magazines all held either twelve, twenty, or thirty rounds of ammunition. From this evidence, the grand jury could reasonably have inferred that the defendant concealed the firearm and the magazines in the crawlspace after Peters moved out because he knew they were illegal. Simply put, there was probable cause "to warrant a person of reasonable caution in believing" that the defendant knew of the magazines and that they were large capacity magazines, and that he exercised dominion and control over them. Commonwealth v. Levesque, 436 Mass. 443, 447 (2002). See Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015) (setting forth elements of constructive possession).
We note that the grand jury transcripts are impounded, and we refer to what the grand jury heard only as necessary to decide this appeal.
The grand jury also heard evidence of a three-way jailhouse call between the defendant, then held in the house of correction; his mother; and someone identified as "Uncle Jackie." During the call, Uncle Jackie said, "They found the pistol after like three hours. I guess it was under the bed before and then after [Peters] left, [the defendant] moved the pistol somewhere because he knew something might happen. So wherever he hid it, they ended up finding it."
The record does not support the defendant's argument that the prosecutor intentionally withheld evidence of the defendant's incarceration on the date of the search. To the contrary, in addition to hearing that the defendant made jailhouse calls, including one on the day that the second search warrant was executed, the grand jury learned of the defendant's incarceration when a detective testified that the defendant's son stated he "cared for" the marijuana grow operation "while his father was not around, actually in jail, for a little while before this day." We cannot reasonably conclude that the absence of testimony regarding the exact dates of the defendant's incarceration "probably influenced the grand jury's determination." Fernandes, 483 Mass. at 8, quoting Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986).
The prosecutor instructed the grand jurors that they should not consider evidence that the defendant was incarcerated in determining whether there was probable cause to indict.
2. Motions to suppress evidence. The defendant claims error in the denial of two motions to suppress evidence. He argues that the information contained in the affidavit in support of the firearm warrant was stale, and that the affidavit in support of the marijuana warrant did not provide probable cause to believe that the defendant ever sold marijuana or did not have a medical marijuana license. Our review of these claims "begins and ends with the 'four corners of the affidavit[s].'" Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995).
Whether facts set forth in an affidavit "are stale or timely is determined by the circumstances of each case." Commonwealth v. Connolly, 454 Mass. 808, 814 (2009). Here, the firearm warrant application averred that the defendant had continuously possessed a black semiautomatic handgun with brown grips and a defaced serial number since receiving it in the fall of 2013. At that time, the defendant "expressed excitement" about the obliterated serial numbers on the firearm and stated that it could be used for protection without being traced. The gun was inoperable and kept under a mattress until February 2014, after which the defendant obtained parts for the firearm, fixed it, and fired it in Peters's presence. It is reasonable to infer from the defendant's excitement about possessing a defaced firearm for protection that the defendant fixed the firearm because he intended to keep it and to use it for that purpose. We agree with the motion judge that the affidavit provided probable cause to believe that the firearm was still possessed by the defendant, and likely to be in his residence on the date of the search, one month later. See Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975) (time less significant where affidavit indicates protracted or continuous conduct).
The other warrant application also established probable cause to believe that the defendant was cultivating and distributing marijuana in violation of G. L. c. 94C, § 32C. Peters told the affiant that the defendant began cultivating marijuana in the summer of 2013 and that there were at least thirty plants in various stages of growth in the defendant's attic as of March 10, 2014. The defendant told an officer that he had a doctor's permission to use marijuana, but, according to Peters, the defendant had no such medical authorization. The defendant also told Peters that "he sells the marijuana he grows to a very close group of family members and friends." Considered "as a whole and in a commonsense and realistic fashion," Connolly, 454 Mass. at 813, the affidavit established probable cause to believe that the defendant was illegally cultivating and possessing marijuana with the intent to distribute it.
To the extent the defendant challenges Peters's veracity and basis of knowledge, we agree with the motion judge that Peters's "relationship with the defendant permits the inference that [her] knowledge was based upon interactions with and personal observations of the defendant." Commonwealth v. Peterson, 61 Mass. App. Ct. 632, 635 (2004). The fact that she was known to the police, and voluntarily made statements about crimes she witnessed, sufficiently established her veracity. See Commonwealth v. Ferreira, 481 Mass. 641, 657 (2019).
This case is distinguishable from Commonwealth v. Canning, 471 Mass. 341 (2015), upon which the defendant relies in arguing that the affidavit failed to establish probable cause to believe that the defendant did not have a valid medical marijuana license. Here, unlike in Canning, the affidavit set forth ample other facts supporting an inference that the defendant was unlawfully growing and selling marijuana. See id. at 352 n.15.
3. Sufficiency. The defendant challenges the sufficiency of the evidence at trial that he (1) constructively possessed the firearm, the magazines, and the marijuana in his attic on April 3, 2014 (the date alleged in the indictments), (2) knew that the magazines were large capacity, (3) improperly stored the unregistered firearm, (4) was not licensed to cultivate marijuana, and (5) had the intent to distribute marijuana. We review these claims to determine "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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
"Constructive possession requires proof of 'knowledge coupled with the ability and intention to exercise dominion and control.'" Dagraca-Teixeira, 471 Mass. at 1004, quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "This proof may be established by circumstantial evidence, and the inferences that can be drawn therefrom" (quotations and citation omitted). Brzezinski, supra.
Peters's testimony at trial was consistent with her earlier statements to the police. She testified that the defendant's uncle gave the defendant a broken firearm with no serial number because the defendant was a gunsmith. The defendant told Peters that he intended to keep the firearm for protection because it could not be traced. He stored it under the mattress of his bed rather than in a locked basement "gun room" that contained other guns, "various tools and instruments to clean and fix guns," and equipment for making ammunition. In February and early March 2014, before Peters moved out, the defendant ordered parts for the gun, fixed it, and fired it in her presence. At trial, Peters identified the firearm and photographs of the large capacity feeding devices seized from the crawlspace as items possessed by the defendant. She had previously seen the magazines at the defendant's place of business and at his residence. The defendant and his son were the only persons in the residence until the defendant left on or around April 4.
The uncle also testified at trial and corroborated Peters's testimony on this point.
This evidence supported an inference that the defendant was familiar with firearms and ammunition, knew how to properly secure them, and would have known that the magazines were capable of holding more than ten rounds.
The jury could have inferred from this evidence that the defendant knew that the firearm was not equipped with a trigger lock and was thus improperly stored.
The jury heard testimony from a firearms expert that the firearm was operational and that its serial number had been removed. The firearms expert also examined the magazine that "came with [the firearm]" and determined that it held twelve live cartridges, the same number that was stamped on the outside of the magazine. The remaining magazines, which were available for the jury's examination, were all stamped indicating that they could hold twenty or thirty cartridges. See Commonwealth v. Cassidy, 479 Mass. 527, 537 (2018) (circumstantial evidence including external indications can be sufficient to prove knowledge of large capacity). From this evidence, the jury could reasonably have concluded that (1) the defendant concealed the firearm and the large capacity magazines in the crawlspace rather than in his gun room because he knew that they were illegal, (2) he knew about and exercised control over the firearm and large capacity magazines on April 3, and (3) he knew that the firearm, in an unlocked box in a crawlspace, was not "secured in a locked container." G. L. c. 140, § 131L (a). See Commonwealth v. Reyes, 464 Mass. 245, 252-253 (2013) ("we can presume that [licensed] gun owners are familiar with" statutory storage requirements). The defendant's claim that the secure storage statute was satisfied because the house was locked overlooks the requirement that a container must be locked and secured to comply with § 131L. See Commonwealth v. Parzick, 64 Mass. App. Ct. 846, 848 (2005) (locked room not securely locked container under § 131L).
At oral argument, defense counsel conceded that one could discern the large capacity nature of the magazines from their size and markings. He retracted the concession in a postargument letter submitted pursuant to Mass. R. A. P. 22 (c), as appearing in 481 Mass. 1651 (2019). In that letter defense counsel stated, for the first time, that it is possible to modify a large capacity feeding device with a "magazine block," such that the capacity of the magazine would not be readily apparent. We accept counsel's retraction. To the extent that the letter includes additional argument on the merits, it is not in compliance with rule 22 (c) and is struck.
In light of all the evidence that the defendant knew that the firearm was not properly stored, we are not persuaded by his alternative argument that the judge's failure to instruct the jury that knowledge is an element of § 131L created a substantial risk of a miscarriage of justice.
As to the defendant's conviction of possession with intent to distribute marijuana, Peters testified that the defendant was growing marijuana throughout the ten months that she lived with him and that he told her he "could grow enough of it and distribute it enough so that way [he and Peters] could potentially just live off of that alone." The defendant talked about selling marijuana and estimated profits of $3,000 per month. These statements, considered together with the volume and various stages of growth of the marijuana in the attic and the presence of digital scales, supported an inference that the defendant was growing marijuana for illegal distribution on April 3, 2014.
We note that licensure is an affirmative defense to be proved by the defendant at trial. See Canning, 471 Mass. at 351. See also G. L. c. 278, § 7. While the parties stipulated that "the defendant was issued a medical marijuana license on March 12, 2014, that expired March 12, 2015," there was no evidence regarding the activity authorized by the license. The jury were not required to conclude that it permitted the defendant to cultivate marijuana for sale.
4. Closing argument. Defense counsel argued in closing that the Commonwealth did not sustain its burden of proving that the defendant intended to distribute the marijuana he was growing. In response, the prosecutor argued that Peters "sat on that stand, and not only did she tell you that he had been telling her constantly that he was selling marijuana to friends and family; he actually laid out a specific number that he wanted to make per month and the reason behind that." Though he did not object at the time, the defendant now claims that this argument misstated Peters's testimony, which was limited to the defendant expressing his intent to sell marijuana to his family members.
The prosecutor's statement varied from Peters's testimony and should not have been made. However, we do not agree with the defendant that the comment "went to the heart of the case and could have made a difference to the jury." As we have previously noted, there was ample other evidence of the defendant's intent to distribute. The judge also instructed the jury that "[t]he opening statements and the closing arguments of the lawyers are not a substitute for the evidence." "We presume, as we must, that the jury followed the judge's instructions and understand the argumentative, not factual, nature of closing arguments." Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013). Given the strength of the Commonwealth's case, the absence of an objection, the judge's cautionary instructions to the jury, and the fact that the statement was "relatively brief in the context of the prosecutor's" otherwise unobjectionable closing, we conclude that there was no substantial risk of a miscarriage of justice. Id.
5. Jury question. During their deliberations, the jury sent the judge the following question: "[w]hat were the defendant's actual gun certifications and defined privileges?" Part of the judge's response, which drew no objection, was that, "if it was legal for him to own a defaced firearm, or if it were -- if it were legal for him to own a feeding device, you wouldn't -- you wouldn't be here. There's a controversy over that." The defendant now claims that his convictions must be reversed because this part of the judge's supplemental instruction to the jury "implied [the defendant] was guilty or had the burden to disprove his guilt." We disagree.
Although the questioned portion of the judge's supplemental instruction was awkwardly phrased, we cannot reasonably conclude that the jury would have understood from the judge's response that the defendant was guilty and had a burden to produce evidence. The judge instructed the jury before, during, and at the conclusion of the trial, that the burden of proof is on the Commonwealth and that burden never shifts. We are confident that, when the instructions are considered as a whole, there was no substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Massing, Kinder & Grant, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 8, 2020.