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Commonwealth v. Mitchell

Appeals Court of Massachusetts

June 5, 2019

COMMONWEALTH
v.
JONATHAN MITCHELL.

          Hampden. March 7, 2018.

          Indictments found and returned in the Superior Court Department on June 2, 2016. The cases were tried before Edward J. McDonough, Jr., J.

          Ian Stone for the defendant.

          Amal Bala, Assistant District Attorney, for the Commonwealth.

          Present: Meade, Rubin, Wolohojian, Agnes, & Neyman, JJ. [1]

          RUBIN, J.

         Defendant Jonathan Mitchell was tried before a jury in Superior Court for the crimes of armed assault with intent to murder, G. L. c. 265, § 18 (b) (count 1), assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (cO (i) (count 2), assault and battery by discharging a firearm, G. L. c. 265, § 15E (count 3), unlawful possession of a firearm, G. L. c. 269, § 10 (a.) (count 4), unlawful possession of a large-capacity feeding device, G. L. c. 269, § 10 (m) (count 5), unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n) (count 6), and unlawful possession of ammunition, G. L. c. 269, § 10 (h) (1) (count 7). The jury acquitted him of all the assaultive charges, counts 1, 2, and 3, and of the charge of possession of a large-capacity feeding device, count 5. They convicted him of unlawful possession of a firearm, count 4, unlawful possession of a loaded firearm, count 6, and unlawful possession of ammunition, count 7.[2] At the Commonwealth's request, the judge dismissed the possession of ammunition conviction as duplicative of the loaded firearm conviction. Mitchell now appeals from his convictions of the two remaining counts. We affirm his conviction of unlawful possession of a firearm and reverse his conviction of unlawful possession of a loaded firearm.

         Evidence.

         This case arose out of a shooting outside the Glo nightclub in Springfield in the early morning hours of April 22, 2016. The facts were disputed. According to Commonwealth witnesses, Mitchell and another man, Marquise Newsom, were arguing outside the club near a hot dog cart. Newsom pushed Mitchell, Mitchell pushed Newsom back, and Mitchell then pulled out a handgun from his belt and shot at Newsom four times. One of the bullets hit Newsom's thumb. After firing the shots, Mitchell put the gun back in his waistband area and fled, and was pursued by police officers who happened to be on the scene. The police apprehended him after his pant leg got stuck while he tried to jump a fence. The gun fell as Mitchell went over the fence, and police recovered the gun and thirteen live rounds of ammunition from it. A police officer testified for the Commonwealth that Mitchell and Newsom were members of rival gangs.

         According to police testimony, Newsom was not cooperative in the investigation. At the scene, he would tell the police only that he was shot in front of a hot dog cart, and he refused to give the police any information at the hospital to which he was taken after the incident. The police were unsuccessful in serving a summons on him, and an uncle told an officer that he did not know Newsom's phone number or where he was.

         Mitchell testified to an entirely different version of events. According to Mitchell, Newsom approached him, reached into his own waistband, and drew a gun. Mitchell immediately "grabbed [Newsom's] hand with both my hands," attempting to wrest the firearm from it. Mitchell testified that he had one hand on the hand of Newsom that was holding the firearm, and the other hand wrapped around Newsom's fingers, one of which was on the trigger. During the ensuing struggle, the gun went off three times.[3] Newsom let go of the gun and ran away. Mitchell ran away in the opposite direction but did not let go of the gun for fear that Newsom or one of Newsom's nearby friends, one Washdouble, might pick it up and shoot him. Mitchell did not know that the police were chasing him until after his pant leg got caught on the fence and he was apprehended. Mitchell denied being a member of any gang but admitted that, while he and Newsom were not "enemies," they were also "not friends" and had had a prior altercation.

         Discussion.

         I. Voir dire question.

         Before jury voir dire, defense counsel objected to the prosecutor's proposal that prospective jurors be asked whether they could be fair and impartial despite the absence of testimony from the alleged shooting victim. The objection was overruled. During voir dire, the judge asked prospective jurors this question and, because of their answers, two prospective jurors were struck for cause. Mitchell argues that the dismissal of these two jurors violated his right to an impartial jury. Mitchell also argues that the objection to the question prior to voir dire preserved his claim of error; the Commonwealth argues that it did not.

         Whether or not the objection to the question preserved the issue for review, we are not persuaded that there was an abuse of discretion in this case in the judge asking the prospective jurors whether the absence of the alleged victim's testimony would affect their ability to be fair and impartial. Under Commonwealth v. Gray, 465 Mass. 330 (2013), a judge may ask a prospective juror whether "the absence of DNA or fingerprint evidence [would] prevent [the prospective juror] from fairly evaluating evidence in this case." Id. at 340 n.10. The purpose of the question in Gray was to ferret out jurors susceptible to the "CSI effect," a worry that jurors who watch forensic science television programs like "CSI" would hold prosecutors to an unreasonably high standard of proof. Id. At 338. Despite being "skeptical" of the need for such questions, id. at 339, the Supreme Judicial Court held that it was not an abuse of discretion for a judge to ask them. Though we are even more skeptical of the need for the question asked here, which does not relate to forensic proof, we likewise discern no abuse of discretion in this case, where the question was "tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence." Id. at 340, quoting Commonwealth v. Perez, 460 Mass. 683, 691 (2011). We think, though, such questions should be used at least as "sparingly" as those in Gray, supra at 339, and that the better practice might be not to use them at all.

         II. Closing argument.

         Mitchell next argues that the prosecutor's unobjected-to statement in closing that Mitchell "despised" Newsom because they were in rival gangs created a substantial risk of a miscarriage of justice. We disagree: the prosecutor's statement was based on a fair inference from the evidence that Mitchell and Newsom were in rival gangs, that they were "not friends," and that they had had a prior altercation.

         III. Jury instructions.

         Mitchell contends that several jury instructions were either erroneously given or erroneously omitted.

         A. Necessity.

         First, he claims that the judge failed to instruct the jury that the Commonwealth had the burden to prove absence of necessity beyond a reasonable doubt. This argument fails because the judge did so instruct: "The [d]efendant may take only such lawful action as is necessary to alleviate the danger. Where the issue of necessity is raised, the Commonwealth has the burden to prove the absence of necessity beyond a reasonable doubt."

         B. Missing witness.

         Next, Mitchell argues that the judge erred by denying his request for a missing witness instruction, which he contends should have been given with respect to Newsom, who did not testify at trial. "A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting Commonwealth v. Anderson, 411 Mass. 279, 280 n.l (1991). Missing witness instructions should be given "only in clear cases." Saletino, 449 Mass. at 668, quoting Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992) . We will reverse only if the judge's failure to give such an instruction was "manifestly unreasonable." Saletino, 449 Mass. at 667.

         Even though Newsom's testimony would have been helpful to the Commonwealth, the uncontroverted testimony at trial was that Newsom had been uncooperative with the Commonwealth and could not be located. In these circumstances, it was not manifestly unreasonable for the judge to decline to give the missing witness instruction.

         Mitchell also argues, citing Commonwealth v. Smith, 49 Mass.App.Ct. 827 (2000), that, by permitting defense counsel to make a missing witness argument in closing, "the judge implicitly concluded that the foundational requisites [for the missing witness instruction] had been met." Id. at 830. This argument fails because, unlike in Smith, where defense counsel affirmatively obtained the judge's permission to make a missing witness argument, defense counsel here made the argument without asking for the judge's permission. The lack of a sua sponte decision to strike the relevant portion of defense counsel's closing does not constitute an implicit finding that the foundational requisites for the missing witness instruction were met. Neither does the judge's decision to strike, at the Commonwealth's request, defense counsel's statement in opening that Newsom did not appear because he knew that the gun was his.

         C. Knowledge that the firearm was loaded.

         1. The erroneous jury instruction.

         The jury were not instructed that they were required to find beyond a reasonable doubt that the defendant knew that the firearm he possessed was loaded, an essential element of the offense, in order to convict him of unlawful possession of a loaded firearm. They were instructed, rather, that

"if you find that the Commonwealth has proven beyond a reasonable doubt that [1] the [d]efendant had an object in his possession; [2] the object was a firearm; [3] the [d]efendant knew the object he possessed was a firearm; and [4] the firearm was loaded with ammunition; and [5] the absence of necessity . . . you shall find the [d]efendant guilty of possession of a loaded firearm."

         There was no objection to the omission from the jury instructions of the element of knowledge that the firearm was loaded. At the time of trial, there were no appellate decisions addressing whether such knowledge was an essential element of the offense. Since our decision will have no bearing on the sentence the defendant is currently serving for unlawful possession of a firearm, we have, as the Commonwealth requested, held this appeal pending resolution of Commonwealth v. Brown, 479 Mass. 600 (2018), which presented the very question whether knowledge that the firearm is loaded is an element of the offense.[4] The Supreme Judicial Court has now decided that case, holding that such knowledge is, indeed, an essential element of the crime. Id. at 608. Thus, although the judge did not have the benefit of Brown, his omission of the knowledge instruction was nonetheless erroneous.

         2. Analysis.

         The defendant argues that although there was no objection to the failure to include an instruction on knowledge, we should review his claim for prejudicial error under the so-called "clairvoyance exception" to the ordinary rule requiring objection in the trial court to preserve a claim of error for review. See Commonwealth v. Randolph, 438 Mass. 290, 295 (2002). The Commonwealth, by contrast, argues that we should apply the test for unpreserved claims of error and ask whether the error created a substantial risk of a miscarriage of justice. We think that, under Commonwealth v. Gagnon, 37 Mass.App.Ct. 626, 629 & n.2 (1994), the Commonwealth has the better of this argument. In that case, as in this, there was no objection to the judge's failure to include an instruction on what an appellate decision concluded after trial was an essential element of the crime at issue. Id. at 629. We concluded that "[t]he 'clairvoyance exception' does not apply because [the subsequent appellate decision -- the analogue to Brown in this case --] did not announce a new rule of constitutional significance but only clarified the meaning of a criminal statute." Id. at 629 n.2. As the Commonwealth argues, we therefore must determine whether the error created a substantial risk of a miscarriage of justice.

         Erroneous instructions that allow the jury to convict without finding an essential element of an offense create a substantial risk of a miscarriage of justice unless either the element at issue can be "ineluctably inferred" from the evidence such that the jury was "required to find" it, Commonwealth v. Azar, 435 Mass. 675, 688 (2002), or the jury's verdicts on the other counts on which the defendant was convicted compel the conclusion they "necessarily found" the element on which they were not instructed, Commonwealth v. McCray, 93 Mass.App.Ct. 835, 847 (2018). That is because if the jury might not have found the element proven beyond a reasonable doubt, the defendant may stand convicted even though he would have been acquitted by a jury properly instructed on the elements of the offense. As we have explained repeatedly in this context, this is the quintessential substantial risk of a miscarriage of justice. Thus, for example, in Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 8 (2001), we explained that "there was a substantial risk of a miscarriage of justice, because the failure to apprise the jury that the defendant must have intended to use the implement to commit the burglary might have resulted in the jury finding the defendant guilty of an act that was not criminal -- mere possession of a pocketknife without the intent to use it as a burglarious implement."

         a. The evidence.

         Turning first to the evidence, it obviously did not "require[] the jurors to find" that the defendant knew the gun was loaded. Azar, 435 Mass. at 688. Although the Commonwealth's theory was that the defendant brought the gun to the scene of the shooting, which, if true, would support a reasonable inference that he had knowledge that the gun was loaded, there was evidence put on by the defendant that it was Newsom's gun that the defendant obtained in a struggle. If the jury credited that evidence, the defendant would have had no way of knowing initially whether the gun was loaded when brought to the scene, nor whether the gun remained loaded when he obtained it after it had been discharged during the struggle. And, in point of fact, the jury's acquittals make clear that they did not accept wholesale the Commonwealth's version of events in which the gun belonged to the defendant. Indeed, the acquittals suggest that the jury may well instead have believed the defendant's version of events.[5]

         The Commonwealth's only argument in support of its position that omission of the knowledge element did not create a substantial risk of a miscarriage of justice is that "regardless of whether the defendant or Newsom fired the gun" during the struggle, "both men obviously knew the gun was loaded because it fired multiple times." But as the defendant points out, and we have noted, this is incorrect if the defendant had no prior relationship to the gun: That the gun -- which, at least according to the defendant's evidence, belonged to Newsom --fired could demonstrate to the defendant only that the gun had been loaded prior to the trigger being pulled. It cannot support an inference of knowledge on the part of the defendant before the trigger was pulled that the gun was loaded. Nor could it demonstrate anything to the defendant about whether the gun remained loaded after the trigger was pulled and a bullet discharged. Consequently it cannot support an inference that the defendant knew after wresting possession of the gun from Newsom that it was still loaded.

         The Commonwealth ultimately acknowledges the logic of this argument by the defendant, but says it would on this record have been "unlikely that the jury would have reached th[e] conclusion" that it was not the defendant's gun and that therefore he lacked knowledge whether it was loaded. This, though, amounts only to an argument that the Commonwealth's case was stronger, and the one more likely to have been believed. But, as Azar teaches, we are not permitted to weigh controverted evidence in determining whether failure to instruct on an element of the offense created a substantial risk of a miscarriage of justice. See Azar, 435 Mass. at 688-689 (erroneous malice instruction created substantial risk of miscarriage of justice where Commonwealth's evidence was "strong" but "controverted" and malice could not be "ineluctably inferred"). And, in point of fact, even were it a relevant consideration, given the acquittals on the assault charges, it is hard to say what it is likely the jury would have concluded had they been properly instructed. Given the state of the evidence at trial, in the absence of any instruction on knowledge, the jury may indeed have found the defendant guilty of possession of a loaded firearm even though if properly instructed, they would have acquitted him.

         b. What was "actively" contested at trial.

         The dissent does not directly dispute this. It does not contend that the evidence leads to an "ineluctable infer[ence]" of knowledge on the defendant's part beyond a reasonable doubt the firearm was loaded, such that the jury were "required" by the evidence to make such a finding. Rather, the dissent asserts something even the Commonwealth does not contend: that this case falls into an exception to the general rule for determining whether there was a substantial risk of a miscarriage of justice because the question of knowledge the firearm was loaded was not "actively contested" at trial. Post at . Indeed, as will be discussed below, the dissent goes further and asserts, incorrectly, that the defendant's knowledge after the initial shot was discharged that the firearm remained loaded was essentially conceded by the defendant.

         The actual legal test is not, though, and never has been, that if the element itself is not contested there is no substantial risk of a miscarriage of justice. The question is whether the element on which there was no instruction "relate[s] to an issue actively contested at trial," Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986) (emphasis added), such that a defendant might have been acquitted by a properly instructed jury. This is the rule because "no harm accrues to a defendant if an error does not relate to an issue actively contested at trial" (emphasis added) . Id. Put another way, this exception exists because, if there is no harm to the defendant from failure to instruct on an element of the offense, there is no risk that he or she has been ...


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