Opinion
18-P-66
05-20-2019
COMMONWEALTH v. CHRISTIEN HOFFLER.
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
A Superior Court jury convicted the defendant of unlawful possession of a firearm, unlawful possession of ammunition, and reckless endangerment of a child. The Commonwealth also charged the defendant with committing the two possessory offenses after having committed three prior violent crimes, and those charges were addressed in a subsequent jury-waived trial. The judge found the defendant guilty of those offenses and therefore sentenced the defendant pursuant to the enhanced penalty provisions of G. L. c. 269, § 10G, the Armed Career Criminal Act (ACCA).
The defendant originally was charged with unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a). On the defendant's motion for a required finding of not guilty, the judge ruled that there was insufficient evidence to support a violation of that subsection, but allowed a lesser-included charge of unlawful possession of a firearm pursuant to G. L. c. 269, § 10 (h), to go to the jury. The defendant was convicted under that subsection.
The Commonwealth agreed to the dismissal of an indictment charging possession of a loaded firearm. The jury acquitted the defendant of assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, strangulation or suffocation, assault and battery, and assault.
The defendant makes two arguments on appeal. First, he argues that there was insufficient evidence presented to the grand jury to support so much of the indictments as alleged that he had committed three prior violent crimes. Second, he argues that the trial evidence that he possessed the firearm and ammunition was insufficient as a matter of law. We affirm.
The sufficiency of the grand jury evidence. At the jury-waived portion of the trial, the Commonwealth presented evidence that the defendant previously had been convicted of three "violent crime[s]" as that term is defined by G. L. c. 140, § 121, and used in the ACCA, G. L. c. 269, § 10G. However, at the grand jury stage, the Commonwealth presented evidence only that the defendant had been convicted of three counts of assault and battery, and one count of resisting arrest, without any other evidence about the nature of the offenses for which he was convicted. See Commonwealth v. Colon, 81 Mass. App. Ct. 8, 12 (2011) (discussing definition of violent crime). Based on this, the defendant argues that the evidence before the grand jury was insufficient to establish probable cause that he previously had been convicted of three violent crimes, and that the indictments therefore must be dismissed. See Commonwealth v. Mora, 477 Mass. 399, 408 (2017); Colon, supra at 16-17.
As the Commonwealth points out, the problem that the defendant faces is that he waived the issue. By statute, a defect in an indictment must be raised prior to trial or it is deemed waived. G. L. c. 277, § 47A. See Commonwealth v. Garrett, 473 Mass. 257, 264 (2015). Although the defendant did seek to dismiss the ACCA indictments prior to the jury-waived trial, he did so not based on insufficient evidence to establish probable cause, but on other grounds. In his reply brief, the defendant argues that we have discretion to reach the issue. See Commonwealth v. Hrycenko, 417 Mass. 309, 312 n.3 (1994). Be that as it may, we see no persuasive reason to do so here. Had the defendant raised the probable cause issue in a timely manner and prevailed, the Commonwealth presumably could have cured the problem by reindicting the defendant based on the same evidence regarding the prior convictions that it presented at trial.
The defendant had argued that the ACCA "has been disproportionately applied to minorities."
It is evident that the defendant's real quarrel is that the minimum mandatory sentences imposed by the ACCA are unduly severe. That is a matter of legislative judgment that is not properly before us to consider.
In the face of the Commonwealth's point that he waived the alleged infirmities in the indictments, the defendant now argues in the alternative that his trial counsel was constitutionally ineffective for failing to raise this issue in his motion to dismiss. This argument fares no better. Because any problem with the indictment readily could have been cured, trial counsel's failure to raise the issue did not deprive the defendant of a "substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We need not, and do not, decide whether counsel's failure to challenge the indictments on sufficiency grounds fell "measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96. We do note, however, that it was Commonwealth v. Mora -- which was published after the trial in this case -- that firmly established that grand jury evidence that a defendant previously had been convicted of assault and battery, without more, did not establish probable cause that the defendant had committed a "violent crime." Mora, 477 Mass. at 408.
Sufficiency of trial evidence. The defendant also argues that there was insufficient evidence that he possessed either the firearm or the ammunition that the police found in his girlfriend's apartment. This claim requires little discussion. Although the defendant portrays the Commonwealth's case as one based on circumstantial evidence of constructive possession, this is not accurate. The defendant's girlfriend testified that the firearm found in her apartment was the defendant's and that he had assaulted her with it. Thus, there was direct eyewitness testimony that the defendant had possessed the firearm, and the jury were entitled to credit that testimony. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The fact that the jury acquitted the defendant of the assault charges does not change this. See Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009) ("Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part"). Moreover, there was additional evidence corroborating the girlfriend's claim that the firearm was the defendant's. For example, a photograph admitted in evidence depicted the defendant brandishing a gun that the girlfriend testified was the same one found by the police. In sum, there was sufficient evidence on which a rational juror could conclude beyond a reasonable doubt that the defendant unlawfully possessed the firearm and ammunition.
Based on this, he additionally argues that there was insufficient evidence to support the child endangerment conviction, which was based on his leaving children in an apartment with an unattended firearm.
The photograph is not before us, and it therefore is not clear to what extent the jury were in a position to assess from the photograph itself whether the gun shown there was the same one found in the girlfriend's apartment. Regardless, the photograph had some corroborating value, and it was for the jury to resolve any conflicting evidence.
Judgments affirmed.
By the Court (Milkey, Hanlon & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 20, 2019.