Commonwealth v. Marrero

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12782
COMMONWEALTH vs. FRANCISCO MARRERO.
Middlesex. December 6, 2019. - March 20, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Firearms. Intent. Identification. Evidence, Intent, Firearm,
Identification, Photograph.
Indictments found and returned in the Superior Court
Department on September 22, 2016.
A pretrial motion to suppress evidence was heard by Heidi
E. Brieger, J., and the cases were tried before Robert B.
Gordon, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Jon R. Maddox for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
David Rassoul Rangaviz, Committee for Public Counsel
Services, & Michelle Huynh, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
GAZIANO, J. The defendant discharged a firearm twice into
the air. Police were unable to find the weapon or any
2
projectiles. A Superior Court jury convicted the defendant of
unlawful possession of a firearm, unlawful possession of a
loaded firearm, and discharging a firearm within 500 feet of a
building. The defendant argues that there was insufficient
evidence that he had knowledge of the physical characteristics
of the firearm that subjected it to regulation, and accordingly,
the convictions must be vacated.1 We conclude that, in order to
establish unlawful possession of a firearm, the Commonwealth
must prove only that the defendant knew the weapon was a firearm
in the conventional sense of the word. The defendant need not
have had knowledge of the specific physical characteristics that
made the weapon a firearm according to statute.
The defendant argues further that there was insufficient
evidence to establish that the weapon did in fact meet the
statutory definition of a firearm, and that two out-of-court
identifications were impermissibly suggestive. We conclude
otherwise. The evidence was sufficient for the jury to find
that the weapon met the statutory definition of a firearm, and
the identification procedures were not impermissibly suggestive.2
1 The defendant also maintains that discharging a firearm
within 500 feet of a building requires proof of knowledge for
the element of discharge, a proposition foreclosed by our recent
decision in Commonwealth v. Kelly, 484 Mass. 53, 54, 66 (2020).
2 We acknowledge the amicus brief of the Massachusetts
Association of Criminal Defense Lawyers.
3
Background. We recite the facts the jury could have found
in the light most favorable to the Commonwealth, reserving some
details for later discussion. See Commonwealth v. Palermo, 482
Mass. 620, 621 (2019).
Nathaniel Perez, David Semprit, Vanessa Dubey, and Ricky
Alcantara attended a party and left together in Perez's
automobile. They drove to a hotel, where another party was
underway. Outside the hotel, they encountered the defendant,
who got into the vehicle. The group then drove to the home of a
friend of Dubey's, and some or all of the vehicle's occupants
got out. The defendant took a firearm that belonged to Perez
from the vehicle and discharged it twice into the air.
Police officers responded to a report of shots fired in the
area. They did not recover the weapon or any projectiles, but
they did find two shell casings imprinted with the characters
"9-M-M." An officer testified that the casings were "consistent
with shell casings that would be left behind after a piece of
ammunition had been fired."
Police obtained a surveillance video recording of the
intersection where the incident took place. The recording
showed a man getting out of a vehicle, raising an object in the
air, and two flashes of light emitting from the object. Based
on the recording, police interviewed Dubey, Perez, Semprit, and
Alcantara. An officer showed Dubey an array of eight
4
photographs, one of which was the defendant. She identified the
defendant as "the guy with the gun." Police later interviewed
Semprit and showed him the same photographic array. He
identified the defendant as the person who had discharged the
weapon.
Semprit and Perez each testified at trial that the
defendant had discharged the weapon. Additionally, the
surveillance video recording was introduced in evidence. Dubey
identified the man who appeared to discharge a firearm as the
defendant.3 A Superior Court jury convicted the defendant of
unlawful possession of a firearm, unlawful possession of a
loaded firearm, and discharging a firearm within 500 feet of a
building. The defendant appealed from his convictions, and we
transferred the case from the Appeals Court on our own motion.
Discussion. 1. Unlawful possession of a firearm. General
Laws c. 269, § 10 (a), states that "[w]hoever, except as
provided or exempted by statute, knowingly has in his
possession . . . a firearm, loaded or unloaded, as defined in
[G. L. c. 140, § 121,] . . . shall be punished . . . ." A
firearm is defined as a "weapon . . . from which a shot or
bullet can be discharged and of which the length of the barrel
or barrels is less than [sixteen] inches." G. L. c. 140, § 121.
3 Ricky Alcantara did not testify.
5
The defendant argues that his conviction of unlawful
possession of a firearm required proof that he knew the facts
that caused the weapon to meet the statutory definition of a
firearm, and that the evidence of such knowledge in this case
was insufficient.
Our objective in interpreting a statute "is to ascertain
and effectuate the intent of the Legislature." Commonwealth v.
Newberry, 483 Mass. 186, 192 (2019), citing Commonwealth v.
Curran, 478 Mass. 630, 633 (2018). To do so, "we look to the
words of the statute, 'construed by the ordinary and approved
usage of the language, considered in connection with the cause
of its enactment, the mischief or imperfection to be remedied
and the main object to be accomplished.'" Commonwealth v. J.A.,
478 Mass. 385, 387 (2017), quoting Boston Police Patrolmen's
Ass'n, Inc. v. Boston, 435 Mass. 718, 720 (2002).
Prior to 1974, the crime of unlawful possession of a
firearm did not contain a mandatory minimum punishment for
individuals who previously had not been convicted of a felony.
See G. L. c. 269, § 10 (a), as amended through St. 1973, c. 588.
Nor did it contain a mens rea requirement. See id. In 1974,
the Legislature enacted the so-called Bartley-Fox legislation,
which amended the statute to mandate a minimum punishment of one
year of imprisonment. See Commonwealth v. Lemay, 11 Mass. App.
Ct. 992, 992 (1981), citing G. L. c. 269, § 10, as amended by
6
St. 1974, c. 649, § 2. In response to the change, and "mindful
of . . . the need to avoid possible constitutional doubts,"
(citation omitted), we interpreted the statute to contain an
implied requirement that a defendant knew he or she possessed a
firearm. See Commonwealth v. Jackson, 369 Mass. 904, 916
(1976). We later clarified the contours of this knowledge
requirement, and held that the Commonwealth must prove the
defendant knew that the weapon was a firearm "within the
generally accepted meaning of that term." See Commonwealth v.
Sampson, 383 Mass. 750, 762 (1981), and cases cited. See also
Commonwealth v. Bacon, 374 Mass. 358, 361 (1978) ("the
characteristics of a gun are obvious. Therefore, in gun cases,
all an accused need know is that he [or she] is carrying a
gun"); Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988
(1984), citing Sampson, supra at 762-763 & n.16 (where "a
conventional firearm with its obvious dangers is involved, the
Commonwealth need not prove that a defendant knows the exact
capabilities or characteristics of the gun which make it subject
to regulation").
In 1990, the Legislature added the word "knowingly" to the
statute. See St. 1990, c. 511, § 2; Commonwealth v. Cornelius,
78 Mass. App. Ct. 413, 416 & n.3 (2010). The defendant argues
that this insertion abrogated our holding in Sampson, 383 Mass.
at 762. He bases his argument on Commonwealth v. Cassidy, 479
7
Mass. 527, 532 (2018), cert. denied, 139 S. Ct. 276 (2018), in
which we examined the mens rea requirements for a violation of
G. L. c. 269, § 10 (m). That statute provides for punishment of
anyone who, without a license, "knowingly has in his [or her]
possession . . . a large capacity weapon" (as defined in G. L.
c. 140, § 121). See G. L. c. 269, § 10 (m). We stated that
"courts ordinarily read a phrase in a criminal statute that
introduces the elements of a crime with the word 'knowingly' as
applying that word to each element." Cassidy, supra at 534,
quoting Flores–Figueroa v. United States, 556 U.S. 646, 652
(2009). We therefore concluded that the Commonwealth must prove
that the defendant was aware of the facts that caused the weapon
to meet the statutory definition of a large capacity weapon.
Cassidy, supra at 536.
The defendant argues that this principle of statutory
interpretation also should be applied to G. L. c. 269, § 10 (a),
which is worded similarly: "Whoever . . . knowingly has in his
possession . . . a firearm, loaded or unloaded, as defined in
[G. L. c. 140, § 121,] . . . shall be punished. . . ." But the
situation here is distinguishable for several reasons. First,
the history of G. L. c. 269, § 10 (a), demonstrates that the
Legislature did not intend to require knowledge that the weapon
8
met the statutory definition. From 1984 through the present,4
the Criminal Model Jury Instructions for Use in the District
Court have stated that a defendant need know only that the
weapon is a firearm within the common meaning of the word.5
Since 1990, the Legislature repeatedly has amended G. L. c. 269,
§ 10, and has not demonstrated a clear intent to change the rule
articulated in Sampson, 383 Mass. at 762. See Commonwealth v.
4 Our case law during this period implicitly has endorsed
the rule set forth in Commonwealth v. Sampson, 383 Mass. 750,
762 (1981). See Commonwealth v. Young, 453 Mass. 707, 713 n.9
(2009), citing Commonwealth v. Jackson, 369 Mass. 904, 916
(1976), and Sampson, supra at 753 ("To establish a violation of
G. L. c. 269, § 10 [a], the Commonwealth must establish
that . . . the defendant knowingly possessed the firearm");
Commonwealth v. Sann Than, 442 Mass. 748, 752-753 nn.4, 5 (2004)
(quoting jury instructions regarding mens rea); Commonwealth v.
O'Connell, 432 Mass. 657, 663-664 (2000), citing Sampson, supra
at 762-763 & n.16, Commonwealth v. Bacon, 374 Mass. 358, 360-361
(1978), and Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988
(1984) (in prosecution for violation of G. L. c. 269, § 10 [c],
defendant's "ignorance vis-à-vis . . . firearm's dimensions is
not a valid defense").
5 See Instruction 7.600 of the Criminal Model Jury
Instructions for Use in the District Court (2013) ("Commonwealth
must prove beyond a reasonable doubt that the defendant . . .
knew that the item was a 'firearm,' within the common meaning of
that term. If it was a conventional firearm, with its obvious
dangers, the Commonwealth is not required to prove that the
defendant knew that the item met the legal definition of a
firearm"); Instruction 5.601 of the Model Jury Instructions for
Use in the District Court (1995) (same); Instruction 5.60 of the
Model Jury Instructions for Criminal Offenses Tried in the
District Court (1984) ("If the defendant knew that he [she] was
carrying a conventional weapon, the Commonwealth is not required
to prove that the defendant knew that it met the legal
definition of a firearm" [citing Papa, 17 Mass. App. Ct. at 987-
988]).
9
Callahan, 440 Mass. 436, 441-442 (2003) (we presume that
Legislature is aware of decisions of this court and previous
legislation and would enact changes if it disagreed with our
interpretation of its intent); St. 1996, c. 20; St. 1996,
c. 151, §§ 487, 488; St. 1998, c. 180, §§ 68-70; St. 2006,
c. 48, §§ 5-7; St. 2014, c. 284, §§ 89, 90, 92.
Moreover, the rule suggested by the defendant would be
unworkable and counterproductive. See Ciani v. MacGrath, 481
Mass. 174, 178 (2019) ("we will not adopt a literal construction
of a statute if the consequences of doing so are absurd or
unreasonable" [quotation and citation omitted]). General Laws
c. 269, § 10 (a), was intended to criminalize unlicensed
possession of a firearm, even absent discharge. Compare id. (no
element of discharge) with G. L. c. 269, § 12E (prohibiting
discharge within 500 feet of building). But proving knowledge
that a firearm met the statutory definition would entail proving
knowledge of the weapon's operability. See G. L. c. 140, § 121.
This, in turn, often would require proof that the weapon had
been discharged previously, thereby running counter to the
statute's goal of criminalizing mere possession. Cf. Cassidy,
479 Mass. at 537, quoting Staples v. United States, 511 U.S.
600, 615 n.11 (1994) ("firing a fully automatic weapon would
10
make the regulated characteristics of the weapon immediately
apparent to its owner").6
Lastly, the large capacity of a weapon often is not readily
apparent. See Commonwealth v. Resende, 94 Mass. App. Ct. 194,
202 (2018) (insufficient evidence to infer knowledge of large
capacity). Cf. Cassidy, 479 Mass. at 533, quoting Staples, 511
U.S. at 615 ("type of weapon owned by that defendant might 'give
no externally visible indication that it is fully automatic'").
Therefore, in Cassidy, supra at 536, it was logical to require
knowledge of the large capacity of the weapon prior to imposing
criminal responsibility. See Staples, supra at 621-622 ("mere
unregistered possession of certain types of regulated weapons --
often difficult to distinguish from other, nonregulated types,
has been held inadequate to establish the requisite knowledge"
[quotation, citation, and alterations omitted]). Here,
conversely, the "characteristics of a gun are obvious." See
Sampson, 383 Mass. at 763, quoting Bacon, 374 Mass. at 361. See
6 Courts in some other jurisdictions have come to the same
conclusion that requiring knowledge of the physical
characteristics that subject a weapon to regulation would
undermine the goals of the statutory scheme. See State v.
Winders, 366 N.W.2d 193, 196 (Iowa Ct. App. 1985) ("To hold
otherwise would only serve to undermine the very purpose of the
provision in regulating possession of weapons in the interest of
public safety. Furthermore, it would place an almost impossible
burden of proof on the State . . ."); State v. Hill, 970 S.W.2d
868, 873 (Mo. Ct. App. 1998), citing Winders, supra (same);
State v. Watterson, 198 N.C. App. 500, 512 (2009) (noting
difficulty of proving knowledge of barrel length).
11
also United States v. Jones, 222 F.3d 349, 353 (7th Cir. 2000)
("Based on the rifle's obvious characteristics[,] . . . the jury
could infer that [the defendant] knew that the instrument he
possessed was a firearm, not a BB gun"); Papa, 17 Mass. App. Ct.
at 987 ("conventional firearm with its obvious dangers").
Therefore, under G. L. c. 269, § 10 (a), it is sensible to
require knowledge only that the "instrument is a firearm within
the generally accepted meaning of that term." See Sampson,
supra at 762.
In light of the above, we conclude that G. L. c. 269,
§ 10 (a), does not require knowledge of the facts that make the
weapon a firearm according to the statutory definition.
The defendant raises three other arguments that are
dependent on his mens rea argument. First, he asserts that the
evidence before the grand jury was insufficient to establish
probable cause that he knew the firearm was capable of
discharging a shot or a bullet. Second, he argues that there
was a substantial risk of a miscarriage of justice created by
the trial judge's failure to instruct the jury that the
defendant must have known of the physical characteristics that
made the weapon a firearm according to the statute. Third, he
contends that if this type of knowledge is required for a
conviction under G. L. c. 269, § 10 (a) (unlawful possession of
a firearm), it necessarily must be required for a conviction
12
under G. L. c. 269, § 10 (n) (unlawful possession of a loaded
firearm). See Commonwealth v. Brown, 479 Mass. 600, 604 (2018)
("in order to be convicted under G. L. c. 269, § 10 [n], an
individual must first have been convicted under G. L. c. 269,
§ 10 [a] or [c]"). Because we conclude that a defendant need
not be aware of the physical characteristics that brought a
weapon within the statutory definition of a firearm, these three
claims are unavailing.
2. Sufficiency. The defendant argues further that the
evidence was insufficient to establish that the weapon was
capable of discharging a shot or bullet, as required by G. L.
c. 140, § 121. We do not agree.
In Commonwealth v. Housewright, 470 Mass. 665, 680 (2015),
a witness testified that the defendant loaded a weapon and fired
it at someone, creating a flash and a loud sound. We held that
the evidence was sufficient for the jury to find that the weapon
met the statutory definition of a firearm, despite the fact that
neither the weapon nor any projectiles were recovered. See id.
See also Commonwealth v. Williams, 422 Mass. 111, 120-121 (1996)
("jury could properly have considered eyewitness testimony that
the defendant had a firearm in his possession, even in the
absence of the recovery of such a firearm" [citation omitted]);
Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985), citing
Commonwealth v. Fancy, 349 Mass. 196, 204 (1965) (expert
13
testimony was not necessary to establish that weapon met
statutory definition of firearm).
Here, Perez testified that the defendant "had my gun, and
he shot it." Semprit testified that the defendant "set off a
shot." Surveillance video footage showed the defendant holding
an object resembling a firearm in the air, and two flashes of
light emitting from it. Two shell casings labelled "9-M-M" were
found at the scene, and an officer answered affirmatively when
asked whether the casings were "consistent with actual working
ammunition." This evidence is substantially similar to that in
Housewright, 470 Mass. at 680.
The defendant argues that the discharges could have been
blanks, and the weapon might have been incapable of firing an
actual shot or bullet. This farfetched explanation does not
negate the strong evidence that the weapon was operable. See
Commonwealth v. Santana, 420 Mass. 205, 214 (1995), quoting
Commonwealth v. Merola, 405 Mass. 529, 533 (1989) (evidence
"need not exclude every reasonable hypothesis of innocence,
provided the record as a whole supports a conclusion of guilt
beyond a reasonable doubt"). See also Commonwealth v. Combs,
480 Mass. 55, 61–62 (2018), citing Commonwealth v. Gonzalez, 475
Mass. 396, 407 (2016) ("Proof of an essential element of a crime
may be based on reasonable inferences drawn from the evidence,
but it may not be based on conjecture"). Here, there was
14
sufficient evidence that the weapon met the statutory definition
of a firearm.
3. Discharge of firearm within 500 feet of building. The
defendant contends that we should interpret G. L. c. 276, § 12E,
to contain an implied requirement that the discharge be done
knowingly. He further argues that, after we infer that the word
"knowingly" modifies the element of discharge, we should apply
the analysis from Cassidy, 479 Mass. at 534, to require
knowledge of all elements of the statute. The first part of the
defendant's argument is foreclosed by our recent decision in
Commonwealth v. Kelly, 484 Mass. 53, 54, 66 (2020), in which we
held that the statute did not contain a mens rea requirement for
the element of discharge. The second part of the defendant's
argument relies on the first, and therefore falls with it.
4. Photographic array. The defendant argues that the
Superior Court judge who heard his pretrial motion to suppress
the out-of-court identifications made by Dubey and Semprit
(motion judge) erred in denying the motion. "[T]he defendant
must show by a preponderance of the evidence that, in light of
the totality of the circumstances, the procedures employed were
so unnecessarily suggestive and conducive to irreparable
misidentification as to deny the defendant due process of law."
Commonwealth v. Arzola, 470 Mass. 809, 813 (2015), cert. denied,
136 S. Ct. 792 (2016), quoting Commonwealth v. Cavitt, 460 Mass.
15
617, 632 (2011). "'[W]e accept the [motion] judge's findings of
fact . . . absent clear error,' but we independently determine
'the correctness of the judge's application of constitutional
principles to the facts as found.'" Commonwealth v. Amaral, 482
Mass. 496, 499 (2019), quoting Commonwealth v. Molina, 467 Mass.
65, 72 (2014).
The motion judge found that the eight photographs showed
men of the same eye color, race, and hair color, with similar
facial hair and similar facial features; two of the men had
slightly higher hairlines. In the photographs, four men wore
white shirts, one had a black shirt, and two were shirtless.
The defendant was the only individual wearing a red shirt. The
officers who administered the photographic arrays knew that the
defendant was a suspect. The judge concluded that the
photographic arrays were not impermissibly suggestive.
The defendant argues that because he was the only person
wearing a red shirt, the identification procedures were
inherently suggestive. See Commonwealth v. Thornley, 406 Mass.
96, 100 (1989) ("we disapprove of an array of photographs which
distinguishes one suspect from all the others on the basis of
some physical characteristic" [citation omitted]). The man who
discharged the firearm, however, was not described as wearing a
red shirt. Indeed, a witness testified that he might have been
shirtless. Therefore, any suggestibility created by the red
16
shirt was minimal. See Arzola, 470 Mass. at 813 (array was not
impermissibly suggestive despite fact that perpetrator wore gray
shirt and defendant's photograph was only one shown wearing gray
shirt). Contrast Thornley, supra at 100-101 (fact that only
photograph in array with individual wearing glasses was
defendant's photograph was impermissibly suggestive because
eyewitnesses relied on glasses in making identification).
The defendant also argues that the identification was
tainted because the administering officers knew his identity and
that he was a suspect. "[I]t is the better practice to have an
identification procedure administered by a law enforcement
officer who does not know the identity of a suspect . . . ."
Commonwealth v. Watson, 455 Mass. 246, 253 (2009). The absence
of such a procedure, however, does not mean that the
identification was inevitably impermissible. See id., citing
Commonwealth v. Silva–Santiago, 453 Mass. 782, 797 (2009).
Importantly, the motion judge found that the witnesses knew the
defendant prior to the incident. This familiarity outweighed
any suggestiveness created by the officers' knowledge of the
defendant's identity. See Commonwealth v. Thomas, 476 Mass.
451, 461 (2017). The judge's finding was not clearly erroneous.
Judgments affirmed.