Opinion
20-P-1197
04-20-2022
COMMONWEALTH v. Michael Johnson MCNEIL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Michael Johnson McNeil, appeals his convictions of carrying a firearm without a license on July 11, 2015, possession of a firearm without a firearm identification card (FID) on July 15, 2015, and possession of ammunition without an FID on July 15, 2015. A Suffolk County grand jury had indicted the defendant on seven charges: (1) murder, in violation of G. L. c. 265, § 1 (occurring on July 11, 2015); (2) armed assault with intent to murder, in violation of G. L. c. 265, § 18 (b ) (occurring on July 11, 2015); (3) possession of cocaine, in violation of G. L. c. 94C, § 34 (occurring on July 15, 2015); (4) possession of a firearm without being present in his residence or place of business or having a license to carry firearms (LTC), in violation of G. L. c. 269, § 10 (a ) (occurring on July 11, 2015); (5) possession of a firearm without an FID, in violation of G. L. c. 269, § 10 (h ) (1) (occurring on July 15, 2015); (6) possession of ammunition without an FID, in violation of G. L. c. 269, § 10 (h ) (1) (occurring on July 15, 2015); and (7) accessory after the fact to murder, in violation of G. L. c. 274, § 4 (occurring on July 11, 2015). Before trial, the defendant filed a motion to sever the July 15 charges (counts 3, 5, and 6) from the July 11 charges. The trial judge denied this motion as to counts 5 and 6 (the firearms charges) and allowed it as to count 3 (the cocaine charge). At trial, the defendant moved for a required finding of not guilty as to all remaining charges at the close of the Commonwealth's evidence, which motion the trial court denied. The jury found the defendant guilty of counts 4, 5, and 6, and not guilty on each of the remaining charges, including murder. We reverse as to count 4 and affirm as to counts 5 and 6.
Background. Viewing the evidence from trial in the light most favorable to the Commonwealth, the jury could have found the following:
July 11, 2015, shooting. The Commonwealth alleged that on July 11, 2015, the defendant engaged in a joint venture with Tyshawn Pereira to murder twenty year old Jean Louis, which also resulted in the attempted murder of sixteen year old Kilo Boutwell. Two other men, Bobby Gilmere and Keyshawn Huggins, were allegedly involved as well.
On July 11, 2015, Louis and Boutwell rode in Edwin Christopher's red Mercury to a birthday party. Louis sat in the front passenger seat, Boutwell was in the back seat, and Christopher drove. Around 5:45 P.M. , Christopher stopped on Bailey Street at the intersection of Dorchester Avenue in the Dorchester section of Boston, to pay a cellular telephone bill at a nearby store. Boutwell exited the car with Christopher and then proceeded to a different, nearby store, while Louis remained in the front passenger seat of the Mercury. At about 5:52 P.M. , two BMWs, one black and one blue, pulled at the same time to the left side of Bailey Street, just down the street from Christopher's car, around a bend in the road and out of the Mercury's line of sight. The defendant drove the black BMW, with Pereira in the front passenger seat, while Gilmere drove the blue BMW, with Huggins in the passenger seat. One of the alleged shooters, Pereira, immediately exited the front passenger seat of the defendant's black BMW, met with Huggins, who had exited the blue BMW, and the two then proceeded together down Bailey Street towards Christopher's car. The defendant and Gilmere allegedly stayed seated in their idling cars.
As Boutwell returned to Christopher's car, he passed both Huggins and Pereira, one of whom began to lift his shirt. After passing Boutwell and arriving at Christopher's car, Pereira allegedly fired multiple shots towards the front passenger side of the vehicle, shattering the window and causing shards of broken glass to graze Boutwell's ear as he ducked and ran down the street. At some point, Louis fired back from inside the car. Fourteen shots were heard in total, and a witness testified that Pereira shot four times, with one of the shots hitting Louis in the chest. After the gunfire ceased, Christopher sped away, picking up Boutwell and rushing Louis to the hospital. As Christopher drove away, Louis threw a nine caliber pistol out of the car. Louis was later pronounced dead at the hospital. On July 12, 2015, Dr. Mindy Hull performed an autopsy on Louis, concluding that he sustained a single gunshot wound to the torso from less than two feet away, which hit his heart and caused his death. Dr. Hull retrieved one thirty-eight caliber bullet from Louis's body.
After the shootout, Pereira and Huggins ran back to the black BMW and entered the vehicle before the defendant sped off. Cellular telephone records showed that the defendant and Pereira called each other multiple times until about twenty minutes before the shooting.
July 13, 2015, police chase. Two days after the shooting, on July 13, 2015, at approximately 1:45 P.M. , Gilmere and Pereira were involved in a police chase in the blue BMW. During the chase, two loaded firearms were thrown out of the car in a residential area: a Taurus thirty-eight caliber special revolver and a forty-five caliber semiautomatic Ruger pistol. Pereira's global positioning system (GPS) confirmed that he was in the area where and when these two firearms were discarded. Cellular telephone records indicated that, immediately after Pereira and Gilmere discarded the firearms, Pereira called the defendant multiple times. Detective Tyrone Camper and Officer Nina Jefferson of the Boston Police Department Firearms Analysis Unit examined the ballistics evidence recovered from the scene of the shooting and from the Taurus and Ruger that were discarded during the police chase. Detective Camper testified that, to a reasonable degree of ballistic certainty, the thirty-eight caliber Taurus fired the bullet recovered from Louis's body, the two copper jackets and an additional bullet found on Bailey Street, and a copper jacket found in the rear passenger door panel of the red Mercury.
July 15, 2015, search. At around 9 A.M. on July 15, 2015, as part of an unrelated drug investigation, officers executed a search warrant at 15 Violet Street, the home of the defendant's grandfather, where the defendant also allegedly lived. When the officers arrived, they observed the defendant exit the home, leave in a red car, and then return ten minutes later with Pereira in his car. The two men then exited the vehicle, and Pereira, who was shirtless, held a white T-shirt in a triangular shape in his forearm, potentially concealing an item such as a firearm. Pereira and the defendant entered 15 Violet Street and left about twenty minutes later. At this time Pereira was wearing a white shirt. They entered the black BMW that the defendant had driven on the day of the shooting (owned by his grandfather), with the defendant driving. After the defendant and Pereira left, the officers entered the home to execute the warrant and recovered the following items from inside a room that also contained the defendant's identification on top of a dresser: a Ruger thirty-eight caliber special revolver and a live thirty-eight caliber special cartridge, which were on a futon, with the revolver in plain view; and forty-one live, forty-five caliber automatic cartridges that were found rolled up in a sock on the floor. The defendant was subsequently arrested and admitted both to living at 15 Violet Street, and to driving the black BMW on July 11, 2015.
Detective Camper testified that the thirty-eight caliber round found in the bedroom at 15 Violet Street on July 15, 2015, was compatible with both the Ruger thirty-eight special revolver recovered that day from the same location, which was not linked to the July 11 shooting, as well as the Taurus thirty-eight special, which was used in the shooting. Camper also testified that the forty-one live rounds of forty-five caliber ammunition discovered in the bedroom on July 15, 2015, were compatible with the forty-five caliber semiautomatic Ruger pistol recovered on July 13, 2015.
Discussion. 1. Sufficiency of the evidence to support the possession convictions. The defendant contends that his convictions on the firearms charges should be overturned because the Commonwealth failed to present sufficient evidence from which a rational jury could have found, beyond a reasonable doubt, that he possessed either the Taurus thirty-eight special used in the shooting on July 11, 2015 (murder weapon), as alleged in count 4, or the Ruger thirty-eight special and ammunition recovered from the room in his grandfather's residence on July 15, 2015, as alleged in counts 5 and 6.
a. Standard of review. When reviewing a claim that the evidence at trial was insufficient to sustain a guilty verdict, we view the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
In order to support a conviction for unlawfully carrying a firearm, the Commonwealth must prove that the defendant knowingly possessed a firearm outside of his home or place of business, without having an LTC. G. L. c. 269, § 10 (a ). Similarly, to convict the defendant of unlawful possession of a firearm and ammunition, the Commonwealth must prove that the defendant, not having an FID, knowingly possessed objects that meet the legal definitions of a firearm and ammunition. See Commonwealth v. Johnson, 461 Mass. 44, 53 (2011) ; G. L. c. 269, § 10 (h ) (1). The only element at issue here with respect to these convictions is that of possession.
Possession may be actual, joint, or constructive, and may be proved by circumstantial evidence. Commonwealth v. Acosta, 416 Mass. 279, 284 (1993). Because actual, joint, and constructive possession are alternative ways of defining the same legal principle of possession, rather than alternative theories, the Commonwealth need prove only one of these principles for the evidence to suffice. Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 532 (2000). Proof of constructive possession requires the Commonwealth to show "knowledge coupled with the ability and intention to exercise dominion and control" (citation omitted). Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "Presence alone cannot show the requisite knowledge, power, or intention to exercise control over the firearm, but presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency’ " (citation omitted). Commonwealth v. Albano, 373 Mass. 132, 134 (1977). Similarly, to prove joint possession of a firearm, there must be sufficient evidence establishing that a defendant exercised control and power over the firearm. Commonwealth v. Humphries, 465 Mass. 762, 767 n.6 (2013).
Alternatively, a defendant may be convicted of possession under a theory of joint venture, where the Commonwealth proves beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged with the intent required to commit the crime. Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). In those circumstances, the intent to join with the principal must exist prior to the commission of the offense. Id. at 459 n.11. A defendant's presence at the scene of the crime, or association with the perpetrator of the crime, does not by itself sufficiently demonstrate a joint venture. See Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 472 (2014). The Commonwealth must introduce "additional evidence which implicates the defendant in the crime" (quotation and citation omitted). Commonwealth v. Sepheus, 468 Mass. 160, 167 (2014).
b. July 11, 2015, carrying charge (count 4). The jury's verdict slip does not reveal whether they relied on a theory of joint venture or a theory of constructive possession to convict the defendant of unlawfully carrying the murder weapon. The Commonwealth states that, as our cases long held, in such circumstances, "the evidence must be sufficient to support both theories." Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 779 (2009), citing Commonwealth v. Flynn, 420 Mass. 810, 818-819 (1995). See Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008) (same).
In Zanetti, 454 Mass. at 468, however, the Supreme Judicial Court repudiated this line of cases, stating, "Now, however, on appeal after a conviction, we will examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability." Shortly thereafter, a different panel of this court reversed a conviction for, among other crimes, possession of a firearm without a license, because the Commonwealth did not provide sufficient evidence of both joint venture and principal liability. See Commonwealth v. Smith, 77 Mass. App. Ct. 1112 (2010). The Supreme Judicial Court reversed the panel, stating that we do not "examine the sufficiency of the evidence separately as to principal and joint venture liability." Commonwealth v. Smith, 460 Mass. 385, 390 (2011), quoting Zanetti, supra.
The Supreme Judicial Court has repeatedly reiterated this point. See Commonwealth v. Gallett, 481 Mass. 662, 673 (2019) (murder); Commonwealth v. Barbosa, 477 Mass. 658, 665 (2017) (murder); Commonwealth v. Miranda, 474 Mass. 1008, 1008 (2016) (murder); Commonwealth v. Bolling, 462 Mass. 440, 453 (2012) (armed assault with intent to murder); Commonwealth v. Marrero, 459 Mass. 235, 247 (2011) (murder and unlawful possession of a firearm); Commonwealth v. Housen, 458 Mass. 702, 706 (2011) (murder); Commonwealth v. Miranda, 458 Mass. 100, 113-114 (2010) (murder); Commonwealth v. Medeiros, 456 Mass. 52, 60 n.10 (2010) (rape). As recently as last year, we rejected the proposition "that principal liability and joint venture liability are alternate theories of guilt." Commonwealth v. Gonzalez, 99 Mass. App. Ct. 161, 171 (2021). See also Commonwealth v. McCray, 93 Mass. App. Ct. 835, 842 (2018), quoting Zanetti, 454 Mass. at 468 ("a reviewing court does not ‘examine the sufficiency of the evidence separately as to principal and joint venture liability’ ").
We have followed the Supreme Judicial Court's guidance in possession cases as well. In Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 & n.6 (2013), we held that the Commonwealth did not need to provide sufficient evidence of both constructive possession and joint venture possession to sustain a conviction for possession of cocaine with the intent to distribute. We again applied this principle to possession of cocaine in Commonwealth v. Ormond O., 92 Mass. App. Ct. 233, 237 (2017).
There is no evidence in this case of actual possession. The defendant argues that the Commonwealth failed to prove that he constructively possessed the murder weapon on July 11, because it presented insufficient evidence that he had knowledge of the weapon on that date, let alone any ability or intent to exercise control over it. We agree. Neither forensic evidence nor eyewitness testimony linked the defendant to the murder weapon on July 11 or any later date, as he was not present when Gilmere and Pereira discarded the murder weapon during the police chase on July 13. The Commonwealth's theory of the case was that Pereira or Huggins shot the victim with the murder weapon, and then fled the scene with the defendant in the defendant's car. The Commonwealth asserts that it presented ample evidence that the four men engaged in some sort of concerted activity on July 11, as evidenced by numerous phone calls between the defendant and Pereira immediately prior to the shooting, the fact that the two BMWs parked on Bailey Street at the same time, and the fact that the two passengers (Huggins and Pereira) were allegedly involved in the shooting before they both fled with the defendant in his car.
However, this generalized evidence of some sort of concerted activity, even criminal activity, does not evince specific proof that, before the shooting, the defendant knew about and had the intent and ability to exercise control over the murder weapon recovered two days later. Even if, after the shooting, it is reasonable to assume that defendant knew that at least one of his passengers possessed a firearm, nothing in the record establishes that the defendant knew which passenger had the murder weapon, or that he had any intent or ability to exercise control over that firearm before the shooting.
The fact that a gun is in one's vehicle in plain view, alone, will not suffice to establish these elements. See Commonwealth v. Romero, 464 Mass. 648, 654 (2013). In Romero, the defendant knew that the passenger in his car possessed a weapon later found in plain view on the passenger's lap, and had even been allowed to handle the weapon earlier that day. However, the Supreme Judicial Court found that this was insufficient evidence to establish that the defendant had the requisite intent and ability to exercise control over the firearm, holding that, "[w]ithout additional inculpatory evidence linking the defendant's proprietary interest in his vehicle to the firearm in [his passenger]’s physical possession, the defendant's ownership of the vehicle had little bearing on his intent to control the firearm." Id. at 657. In the instant case, there was no evidence that the defendant ever saw or was allowed to handle the murder weapon, and nothing that tends to establish his intent to control it. The Commonwealth points to no case in which driving an armed person has been held sufficient to support a finding beyond a reasonable doubt that the driver had the intent and ability to control the firearm in the possession of the passenger. The evidence was insufficient to support the defendant's conviction of count 4 under a theory of constructive possession.
Nor was the evidence sufficient to convict the defendant of possessing the murder weapon as a joint venturer. As discussed above, to sustain a conviction under a joint venture theory, the Commonwealth must prove that the defendant knowingly and intentionally participated in a criminal enterprise, so as to accomplish its objective, with the "intent required to commit the crime." Zanetti, 454 Mass. at 468. The defendant's presence at the scene of the crime, or association with the perpetrator of the crime, does not by itself sufficiently demonstrate a joint venture. See Caswell, 85 Mass. App. Ct. at 472. In a case of possession, knowledge and presence are by themselves insufficient to support a finding beyond a reasonable doubt of guilt. Cf. Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015). Rather, the Commonwealth must introduce "additional evidence which implicates the defendant in the crime." Sepheus, 468 Mass. at 167, quoting Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986). There must be evidence that he "intentionally participated in some fashion" in the crime charged. See Zanetti, 454 Mass. at 470 (Appendix).
Here, there was insufficient evidence that, before the shooting, the defendant knew that Pereira or Huggins had possession of any firearm, or that the defendant knew Pereira and Huggins did not have LTCs. The evidence established that the defendant drove to Bailey Street with Pereira and drove away with Huggins and Pereira in the aftermath of the shooting, which occurred out of his line of sight. The previously discussed generalized evidence of some sort of concerted activity between the defendant and Huggins, Pereira, and Gilmere does not by itself elevate the defendant's mere presence at the scene to "participation" in the crime of unlawfully carrying a firearm and is insufficient to establish a joint venture under Caswell, 85 Mass. App. Ct. at 472. It cannot support a finding beyond a reasonable doubt that the defendant ever saw the weapon or had any awareness that Pereira possessed a firearm, and certainly does not establish that he intended to aid Pereira in possessing that firearm, for example by agreeing to help obtain, conceal, or discard it. Consequently, the conviction of unlawfully carrying the murder weapon on July 11, 2015, cannot stand.
c. July 15, 2015, possession charges (counts 5 and 6). The defendant next contends that the evidence was insufficient to establish he had possession of the Ruger thirty-eight special revolver or the ammunition recovered from 15 Violet Street, the home owned by the defendant's grandfather. Again, he argues that no forensic evidence or witness testimony demonstrates that he had actual possession of the gun or ammunition at any time. Further, the defendant claims that the presence of his identification in the room where the gun was found was insufficient to support a rational inference that he had knowledge of all of the items in the room as well as the intent and ability to exercise control over them.
On these facts, the defendant's arguments are unavailing. The defendant admitted that he lived at 15 Violet Street and his identification was located on a dresser in the room where the items were discovered. During the search of the room, the Ruger thirty-eight caliber special revolver and a thirty-eight caliber special cartridge were found near each other on a futon, with the firearm in plain view. Moreover, the forty-one forty-five caliber bullets were found wrapped in a sock on the floor of the bedroom. Under these circumstances, where the contraband was found in the same area as the defendant's personal effects and the defendant acknowledged living there, it was reasonable for the jury to infer that the defendant occupied the room and possessed the items located therein, and that he had the intent and ability to exercise control over said items. See Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 417 (1996) (personal effects in same area as contraband point to defendant's familiarity and knowledge of contents in that area). Thus, the evidence was sufficient to support convictions of possessing these items without an FID under a theory of constructive possession.
2. Defendant's motion to sever. Finally, the defendant argues that the trial judge abused her discretion by denying the defendant's motion to sever the July 15, 2015, possession charges (counts 5 and 6) from the charge related to July 11, 2015 (count 4), and that his defense to each count suffered undue prejudice as a result. We disagree.
a. Standard of review. Pursuant to Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1979), a court "shall join" related offenses unless joinder "is not in the best interests of justice." The decision of whether to sever indictments lies within the sound discretion of the trial judge, and this Court does not reverse that decision absent clear abuse of that discretion. Commonwealth v. Hall, 485 Mass. 145, 165 (2020). To prevail on a claim of misjoinder, the defendant must demonstrate that: (1) the offenses were unrelated, and (2) the prejudice from joinder was so compelling that it prevented him from obtaining a fair trial. See Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). Offenses are related "if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Id. at 180, quoting Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979).
b. Discussion. We may assume without deciding that, as the defendant argues, the offenses were unrelated. As described above, we are reversing the conviction of unlawfully carrying a firearm on July 11, 2015. The only question before us with respect to prejudice, then, is whether the prejudice from joinder was so compelling that it prevented the defendant from receiving a fair trial on the charges relating to July 15, 2015.
The evidence that the defendant possessed the Ruger thirty-eight caliber special revolver and ammunition found on July 15 is, as discussed previously, strong. Indeed, the defendant himself focuses his argument as it relates to prejudice on the effect that the July 15 evidence might have had on the July 11 charges, rather than the reverse, arguing that the evidence he possessed a firearm and ammunition on July 15 served only to create an impermissible inference of bad character, thereby encouraging the jury to believe that he also possessed a firearm on July 11. Given the strength of the case with respect to counts 5 and 6, we do not think the defendant has shown that any prejudice from joinder was so compelling as to render his trial on those charges unfair.
3. Conclusion. There was insufficient evidence for a rational jury to find the defendant guilty of unlawfully carrying a firearm on July 11, 2015 (count 4). However, the evidence was sufficient to convict the defendant of unlawfully possessing a firearm and ammunition on July 15, 2015 (counts 5 and 6), and his defense to those charges was not prejudiced by any error with respect to joinder with the July 11 charges. The judgment on count 4 is reversed, and the conviction is set aside. The judgments on counts 5 and 6 are affirmed.
So ordered.
Reversed in part; affirmed in part