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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-623
COMMONWEALTH
vs.
HASAN TAFT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of unlawfully
possessing a firearm, unlawfully possessing a loaded firearm,
and unlawfully possessing ammunition. On appeal, the defendant
argues that (1) the evidence was insufficient to support his
convictions, (2) the prosecutor made multiple errors in his
opening statement and closing argument, (3) prejudicial evidence
was improperly admitted, and (4) the Supreme Judicial Court's
precedent concerning the automobile exception to the warrant
requirement is violative of art. 14 of the Declaration of
Rights. The defendant also argues that, under the Supreme
Judicial Court's recent holding in Commonwealth v. Guardado, 491
Mass. 666, 690 (2023), the judge's instruction that the jury was
not to consider whether the Commonwealth had proven that the
defendant did not possess a license to carry a firearm was error requiring reversal. We affirm the conviction of possession of a
firearm and reverse the convictions of possession of a loaded
firearm and possession of ammunition.
Background. On the evening of December 3, 2018, Boston
Police Officers James O'Loughlin and Kyle Holmes were on patrol
in Roxbury when they observed a gray Hyundai Sonata travelling
at a high rate of speed. The officers' query of the Sonata's
license plate revealed that it was registered to Sheleia Taft-
Scott. 1 The officers then radioed for backup and initiated a
traffic stop. The driver, subsequently identified as the
defendant, pulled the car over without incident.
O'Loughlin approached the defendant and requested his
identification. The defendant produced an identification card
to which O'Loughlin expressed skepticism because he recognized
the defendant from previous encounters. When O'Loughlin
confronted the defendant as to his real identity, the defendant
responded, "You know me, bro. It's Hasan." After determining
that neither the defendant nor the passenger (Kris Elder-Porter)
had a valid license to operate a motor vehicle, O'Loughlin and
1 O'Loughlin described a query as submitting the license plate number "through a database which brings back registration status, license status, warrants, any sort of information that we need to gather for the motor vehicle." The query also informed the officers that the Sonata may have been observed being driven from the scene of a "shots fired" incident that occurred two days prior; this information was not presented to the jury.
2 Holmes removed them from the Sonata. The defendant and Elder-
Porter then sat on the sidewalk while O'Loughlin and Holmes
began an inventorying of the Sonata's contents.
Soon thereafter, a detective called O'Loughlin to inform
him that there may be an object under the hood of the Sonata.
In response, O'Loughlin proceeded to the Sonata's driver's side
seat area and released the hood latch while Holmes approached
the vehicle's hood. Upon seeing the officers turn their focus
to the hood, the defendant jumped up and asked, "What are you
guys doing?" Other officers, who had arrived on the scene and
were watching the defendant, told him to sit back down; he
complied. However, once Holmes opened the hood, the defendant
jumped up and ran. He ran for only ten to fifteen feet before
the officers caught and detained him.
After raising the hood, O'Loughlin discovered a firearm
located in a void in the engine compartment. The officers
refrained from inspecting or removing the firearm, and instead
called district detectives to process the evidence. O'Loughlin
later learned from a detective that the firearm was loaded.
Soon after O'Loughlin discovered the firearm, another
officer demanded to see the defendant's license to carry. The
defendant replied that he did not have one.
Discussion. 1. Sufficiency of the evidence. In reviewing
a claim that the verdict was not supported by sufficient
3 evidence, the "question is 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).
a. Unlawful possession of firearm. The defendant contends
that the evidence was insufficient to prove that he possessed
the firearm. 2 Since the firearm was not recovered from the
defendant's person, we must determine whether the evidence was
sufficient to support the Commonwealth's theory of constructive
possession. Constructive possession implies that the defendant
had "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 [contraband], but presence, supplemented
by other incriminating evidence, 'will serve to tip the scale in
favor of sufficiency.'" Commonwealth v. Albano, 373 Mass. 132,
2 To convict a defendant for unlawful possession of a firearm without a license, the Commonwealth must prove: (1) the defendant possessed a firearm; (2) the firearm fit the legal definition of a firearm; (3) the defendant knew that he possessed a firearm or had a firearm under his control; and (4) the defendant did not have a license to carry firearms. G. L. c. 269, § 10 (a).
4 134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108
(6th Cir. 1976). A defendant's "knowledge or intent is a matter
of fact, which is often not susceptible of proof by direct
evidence, so resort is frequently made to proof by inference
from all the facts and circumstances developed at the trial"
(citation omitted). Commonwealth v. Summers, 93 Mass. App. Ct.
260, 262 (2018).
Although the defendant concedes the evidence was sufficient
to establish the defendant's knowledge of and ability to control
the firearm, he argues that the evidence was insufficient to
establish the defendant's intent to exercise control over it and
that the Commonwealth failed to prove he was not licensed to
carry the firearm.
i. Intent to exercise control. The defendant cites the
Supreme Judicial Court's decision in Commonwealth v. Romero, 464
Mass. 648, 653 (2013), as controlling to his contention that the
evidence was insufficient to establish his intent to control the
firearm. In Romero, the Court found the evidence was
insufficient to establish that the defendant, the owner and
operator of the vehicle, constructively possessed a firearm
recovered from inside his vehicle, even when considering that
the evidence established that the defendant had knowledge of and
the ability to control the firearm. Id. In determining the
evidence to be insufficient to establish the defendant had the
5 intent to exercise dominion and control, the Court emphasized
the lack of any particular link between the defendant and the
firearm, such as possession of a holster or ammunition. Id. at
656–657, citing Commonwealth v. Escalera, 462 Mass. 636, 649–650
(2012) (holster found in defendant's bedroom sized to fit two
handguns recovered from basement where drugs were located). The
Court's analysis of the defendant's intent was further
influenced by their examination of the defendant's passengers'
behavior, one of whom the evidence demonstrated was the owner
and actual possessor of the firearm immediately before the
police recovered it from the vehicle. Romero, supra at 649-650,
658-659. Additionally, the Court noted that the defendant's
unremarkable behavior in response to the firearm being recovered
-- as he made no effort to flee, conceal, or dispose of the gun
when the officer approached his vehicle -- was inconsistent with
having an intent to control it. Id. 657-658. The Court
concluded that the defendant's ownership and operation of a
vehicle, with knowledge of and proximity to the firearm was,
without more, insufficient to establish constructive possession.
Id. at 658-659.
Here, there is more. The circumstances establish a
reasonable inference that the defendant had a particular link to
the firearm through his retaining exclusive control and unique
access to the firearm, as well as his conduct attendant to the
6 recovery of the firearm. See Summers, 93 Mass. App. Ct. at 265
("[t]he combination of the defendant's location in the Kia, his
adjacency to the backpack, the ruse he created, his flight from
the scene, and his statements upon his arrest provide[d]"
sufficient evidence of intent to control firearm); Commonwealth
v. Crapps, 84 Mass. App. Ct. 442, 445 (2013) ("a defendant's
proximity, access, and collateral conduct . . . permit[s] the
inference of an intention to exercise control over contraband or
forbidden weaponry in [a] vehicle"). This is not an instance of
a driver merely tolerating the presence of an armed acquaintance
in his vehicle, as presented in Romero. Romero, 464 Mass. at
658. Rather, the evidence demonstrates that the defendant made
the decision to assume control of a vehicle knowing that he had
access to a firearm secreted under the hood. See Summers, 93
Mass. App. Ct. at 263 (defendant's "ready access" to firearm was
factor in determining constructive possession); Crapps, 84 Mass.
App. Ct. at 445 (same); Commonwealth v. Sadberry, 44 Mass. App.
Ct. 934, 936 (1998) (same). Furthermore, there is no evidence
that the defendant's sole passenger, Elder-Porter, was either an
intervening owner or actual possessor of the firearm, and in
effect stood between the firearm and the defendant, thus
diminishing the inferential weight that the defendant had the
intent to exercise dominion and control over it. Summers, 93
Mass. App. Ct. at 263 (in light of circumstances showing
7 defendant's principal role as possessor, passenger's knowledge
of and proximity to firearm was insufficient to establish
passenger's intent to exercise control); Commonwealth v.
Hamilton, 83 Mass. App. Ct. 406, 412–413 (2013) (absence of
evidence of another person having control over apartment or
contraband was factor in Court's conclusion that defendant
constructively possessed it). Contrast Romero, 464 Mass. at
649-650 (evidence established defendant's passenger owned and
had actual possession of firearm immediately prior to its
recovery from defendant's vehicle); Commonwealth v. Boria, 440
Mass. 416, 418–420 (2003) (defendant's proximity and knowledge
of contraband insufficient to establish constructive possession
when there was stronger evidence pointing to codefendant's
intent to control).
Moreover, the defendant provided a false identification
upon being stopped, grew visibly agitated when the officer
approached the latch to the vehicle's hood, and ran once the
police opened the hood. This conduct constitutes "further
consciousness of guilt evidence that tips the scale in favor of
sufficiency" concerning the defendant's intent to control the
firearm. See Summers, 93 Mass. App. Ct. at 265; Commonwealth v.
Whitlock, 39 Mass. App. Ct. 514, 519 (1995) (evidence of flight
from scene permits inference of unlawful possession). While the
defendant would like to confine the reach of his conduct to the
8 required knowledge prong, it is for the jury to determine the
facts and any reasonable inferences drawn therefrom. See
Commonwealth v. Ortega, 441 Mass. 170, 174 (2004), quoting
Commonwealth v. Martino, 412 Mass. 267, 272 (1992)
(interpretation of officers' testimony regarding defendant's
conduct concerns "the weight and credibility of the evidence, 'a
matter wholly within the province of the jury'"). "To the
extent that conflicting inferences are possible from the
evidence, 'it is for the jury to determine where the truth
lies'" (citations omitted). Commonwealth v. Cotto, 69 Mass.
App. Ct. 589, 593 n.6 (2007). See Commonwealth v. Prater, 431
Mass. 86, 97 (2000), citing Commonwealth v. Booker, 386 Mass.
466, 470–471 (1982) ("When there are multiple possible
explanations for a defendant's flight, it is for the jury to
decide if the defendant's actions resulted from consciousness of
guilt or some other reason").
Finally, the defendant's connection to the vehicle,
established through his having been observed in the vehicle in
the past and that he shared a last name with the vehicle's
registered owner, further augments the reasonableness of an
inference that the defendant intended to exercise control over
the firearm. See, e.g., Crapps, 84 Mass. App. Ct. at 444.
Accordingly, we conclude the defendant's particular
connection to and control over the firearm, as well as his
9 collateral conduct in the presence of the police, permitted a
rational fact finder to reasonably find that the defendant had
the requisite intent to exercise dominion and control over the
firearm.
ii. Licensure requirement. The Supreme Judicial Court, in
Guardado, 491 Mass. at 690, quoting Commonwealth v. Munoz, 384
Mass. 503, 507 (1981), recently held that "to convict a
defendant of unlawful possession of a firearm, the Commonwealth
must prove 'as an element of the crime charged' that the
defendant in fact failed to comply with the licensure
requirements for possessing a firearm." This holding applied
prospectively and to cases, such as this one, that were either
active or pending on direct review as of the date of the
issuance of that decision (April 13, 2023). Id. at 694. Here,
the judge instructed the jury as follows as to the unlawful
possession of a firearm charge: "There was no evidence in this
case that the defendant has a license to carry a firearm . . .
For that reason, the issue of license or exemption is not
relevant to your deliberations in this case and therefore you
should put it out of your mind." The defendant did not object
and now argues that the judge's failure to instruct the jury, as
required by Guardado, that the Commonwealth was required to
prove an absence of licensure requires a new trial.
10 To begin with, the failure to object is of no consequence.
In Guardado, 491 Mass. at 686, the Court applied the
clairvoyance exception to excuse the failure to object to the
absence of a licensure jury instruction, explaining that "the
constitutional theory on which the defendant . . . relied was
not sufficiently developed at the time of trial . . . to afford
the defendant a genuine opportunity to raise his claim"
(quotation and citation omitted). See Commonwealth v. Bookman,
492 Mass. 396, 401 (2023) (applying clairvoyance exception in
same circumstances). Accordingly, as stated in Bookman, "[t]he
remaining question is whether the error was harmless beyond a
reasonable doubt" (citation omitted). Bookman, supra.
Here, Officer Conway testified that the defendant told him
that he did not have a license to carry. Immediately prior to
this testimony, the judge asked defense counsel whether the fact
that the defendant had a license was "in dispute in this case,"
and defense counsel responded, "No."
In light of this undisputed evidence that the defendant was
not licensed, we conclude the failure to instruct the jury on
the licensure requirement was harmless beyond a reasonable
doubt. Bookman, 492 Mass. at 401 (failure to give licensure
instruction was harmless beyond reasonable doubt where there was
police testimony that defendant did not have license, and where
11 "there [was] nothing in the record to suggest that the defendant
disputed this testimony").
b. Unlawful possession of a loaded firearm and unlawful
possession of ammunition. 3 Although we conclude that the
evidence was sufficient to establish that the defendant
possessed the firearm, there was insufficient evidence to allow
a rational trier of fact to find beyond a reasonable doubt that
the defendant knew that the firearm was loaded.
"[T]o sustain a conviction under G. L. c. 269, § 10 (n),
the Commonwealth must prove that a defendant knew the firearm
[they] possessed was loaded." Commonwealth v. Brown, 479 Mass.
600, 601–602 (2018). "Where there is no direct evidence that a
defendant knew a gun was loaded, a jury rationally may infer
that fact from circumstantial evidence." Commonwealth v.
Ashford, 486 Mass. 450, 454 (2020), citing Brown, 479 Mass. at
608. "While this inference need only be reasonable and
possible, not necessary and inescapable, it is equally true that
'no essential element of the crime may rest in surmise,
conjecture, or guesswork'" (citations omitted). Id. at 454-455.
3 The defendant argues, and the Commonwealth concedes, that the conviction of possession of ammunition was duplicative of the conviction of possession of a loaded firearm and therefore violated the double jeopardy clause. See Commonwealth v. Johnson, 461 Mass. 44, 54 (2011). However, because we conclude that the evidence was insufficient to support either of the convictions involving ammunition, we do not address this issue.
12 The Commonwealth's evidence that the defendant was aware of
the ammunition was limited to the presence of the firearm's
chamber indicator bar, a device which visibly protruded from the
top of the firearm's slide to indicate the firearm was loaded.
Thus, absent direct evidence the defendant saw this chamber bar
or otherwise knew the firearm was loaded, the Commonwealth's
theory of proof was dependent upon circumstantial evidence that
the defendant had the opportunity to view the indicator bar to
conclude the firearm was loaded. The evidence in this case was
insufficient to support an inference that the defendant had ever
handled or closely examined the firearm. When discovered by the
police, the firearm was wedged next to the vehicle's battery
such that only its butt end was visible. Notably the telltale
indicator bar on the slide was not apparent. This very limited
view of the firearm is established through the Commonwealth's
photographic exhibits of the firearm depicting it as it was
found under the hood. Furthermore, that the officer who found
the firearm testified he only learned "after the fact" from
investigating detectives that the firearm was loaded, suggests
that it was not evident to him that the gun was loaded when he
first discovered it.
The Commonwealth failed to present direct evidence and
sufficient circumstantial evidence to establish the defendant
ever handled or closely examined the firearm to permit a
13 rational jury to find beyond a reasonable doubt that the
defendant knew the firearm was loaded. See Ashford, 486 Mass.
at 455; see also Brown, 479 Mass. at 608. Contrast Commonwealth
v. Resende, 94 Mass. App. Ct. 194, 200 (2018) (recovery of
firearm from defendant's waistband supported inference defendant
handled firearm and would have checked to see if it were
loaded). Evidence that the defendant fled, without more, is
insufficient to establish that he knew the firearm was loaded.
See, e.g., Ashford, 486 Mass. at 451 (evidence including
defendant's flight from police established that defendant
constructively possessed firearm but was insufficient to
establish his knowledge it was loaded).
Accordingly, we reverse the convictions for possession of a
loaded firearm and possession of ammunition.
2. Opening statement and closing argument. The defendant
alleges three errors in the prosecutor's opening statement and
closing argument. He asserts that the prosecutor misstated the
applicable law, incorrectly argued that the defense witness was
biased, and made a speculative and inflammatory claim when he
said that the firearm was positioned to enable the defendant to
"grab and go." As the defendant did not object to any of the
prosecutor's comments, we review for a substantial risk of
miscarriage of justice. Commonwealth v. Silvelo, 96 Mass. App.
Ct. 85, 91 (2019).
14 In both his opening statement and closing argument, the
prosecutor stated that the Commonwealth was going to "prove two
things to [the jury]." The prosecutor then emphasized that he
would first show that the defendant "knew exactly what was
underneath the hood of that car," and that he would then show
that the object found under the hood "met the legal definition
of a firearm." The defendant argues that, in doing so, the
prosecutor misstated the elements of the crime by omitting that
it is also necessary to prove that the defendant had the ability
and intent to control the firearm. See Summers, 93 Mass. App.
Ct. at 262.
We need not decide whether the prosecutor's emphasis of
only two elements of the crime was error, because even if it
was, it did not create a substantial risk of miscarriage of
justice. The judge properly instructed the jury on the elements
of the crime immediately before the prosecutor's closing
argument, and we assume that the jury followed these
instructions. See Commonwealth v. Berry, 466 Mass. 763, 770
(2014). We further note that the prosecutor mentioned in his
closing that the evidence showed that the defendant "exercised
control" over or "intended to control" the firearm.
Additionally, defense counsel's closing argument referenced the
requirement that the Commonwealth prove the defendant's ability
or intent to exercise control. We are satisfied, under these
15 circumstances, that the judge's instructions mitigated any risk
of a substantial miscarriage of justice.
The defendant also asserts the prosecutor erred in arguing
that the passenger, who testified for the defense, was the "only
witness who actually has a dog in this fight" and by stating
that "[the defendant] is his boy, that's his buddy." 4 We discern
no error in the prosecutor's comments. Given the evidence of
their friendship, it was reasonable to infer that the passenger
was biased in favor of the defendant. The prosecutor's
comments, which were based on that inference, did not exceed the
bounds of fair argument. See Commonwealth v. Roy, 464 Mass.
818, 833 (2013).
The defendant next asserts that the prosecutor's reference
to the firearm being in a "grab and go situation" and his
statement that the defendant was "the only person that would be
in the position that could grab that gun" were improper and
misstated the evidence. We disagree. The phrase "grab and go
situation" was not inflammatory and did not stoke fears of
violence as the defendant suggests. Rather, in the context of
4 The defendant argues that the prosecutor's language here, referring to the defendant as the witness's "boy," was racially charged and therefore prejudiced the defendant. The Commonwealth disagrees, arguing that the term "boy" is common slang for a friend. Although we acknowledge that the prosecutor's use of the term "boy" was better left unsaid, we can discern no substantial risk of miscarriage of justice from the comment.
16 the argument, the prosecutor appeared to be directing the jury's
attention to the fact that the firearm was situated under the
hood of the car with its handle sticking up, which allowed for
the inference that the defendant could have easily removed it.
Roy, 464 Mass. at 833. Additionally, the prosecutor did not
overstep the bounds of proper argument by emphasizing that the
defendant's position in the car, which placed him closest to the
hood latch, put him in the best position to open the hood and
retrieve the firearm. Id. ("prosecutor may argue forcefully
'for a conviction based on the evidence and on inferences that
may reasonably be drawn'" therefrom [citation omitted]). There
was no error.
3. Evidentiary claim. The defendant claims that Officer
O'Loughlin's testimony that he knew the defendant from "previous
encounters" and that he and the defendant "usually have pretty
calm conversations when we speak," was prejudicially suggestive
of prior bad act evidence. Because the defendant did not
preserve an objection 5 to either statement, we review first for
error, and if so, whether the error created a substantial risk
of a miscarriage of justice. Commonwealth v. Traylor, 472 Mass.
260, 267 (2015).
5 Although defense counsel initially objected to O'Loughlin's testimony that O'Loughlin knew the defendant, counsel withdrew his objection after a sidebar conference.
17 We conclude that neither statement amounted to error.
O'Loughlin's familiarity with the defendant was relevant to the
nature of his initial interaction with and identification of the
defendant and was properly limited to avoid any reference to
prior bad acts. Furthermore, evidence that the defendant had
behaved calmly in previous encounters with O'Loughlin was
relevant to the jury's consideration of whether evidence of the
defendant's flight allowed for a consciousness-of-guilt
inference. 6 See, e.g., Summers, 93 Mass. App. Ct. at 261
(defendant's flight, after he greeted and conversed with officer
with whom he was familiar, demonstrated evidence of
consciousness of guilt).
4. Automobile exception to the warrant requirement. The
defendant also argues that we should reconsider the Supreme
Judicial Court's decision in Commonwealth v. Motta, 424 Mass.
117, 123 (1997), concluding that a vehicle's "inherent mobility"
allows for a warrantless search of that vehicle in circumstances
such as presented in the instant case. We decline the
defendant's request to review the precedent of the Supreme
Judicial Court. Commonwealth v. Vasquez, 456 Mass. 350, 356
(2010) (Supreme Judicial Court "is the highest appellate
6 Even if the admission of these statements amounted to error, their admission would not have materially influenced the jury's verdict in the context of the entire trial. Commonwealth v. Randoph,438 Mass. 290, 299-300 (2002).
18 authority in the Commonwealth, and [its] decisions on all
questions of law are conclusive on all Massachusetts trial
courts and the Appeals Court"). See Commonwealth v. Dube, 59
Mass. App. Ct. 476, 485-486 (2003) (Appeals Court has "no power
to alter, overrule or decline to follow the holdings of cases"
decided by Supreme Judicial Court).
Conclusion. Because we conclude that the evidence was
sufficient to prove beyond a reasonable doubt that the defendant
unlawfully possessed a firearm, and that none of the alleged
errors in the trial warrant a reversal, we affirm the
defendant's conviction on that charge. However, we conclude
that the evidence was insufficient to prove that the defendant
unlawfully possessed a loaded firearm and that the defendant
unlawfully possessed ammunition; accordingly, we reverse and set
aside those convictions.
So ordered.
By the Court (Milkey, Neyman & Smyth, JJ. 7),
Clerk
Entered: October 3, 2023.
7 The panelists are listed in order of seniority.