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17-P-1058 Appeals Court
COMMONWEALTH vs. JONATHAN MITCHELL.
No. 17-P-1058.
Hampden. March 7, 2018. - June 5, 2019.
Present: Meade, Rubin, Wolohojian, Agnes, & Neyman, JJ.1
Firearms. Practice, Criminal, Voir dire, Jury and jurors,
Instructions to jury. Jury and Jurors. Witness, Victim.
Necessity. Self-Defense. Due Process of Law, Elements of
criminal offense.
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.
1 This case was initially heard by a panel comprising
Justices Meade, Rubin, and Neyman. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices
Wolohojian and Agnes. See Sciaba Constr. Corp. v. Boston, 35
Mass. App. Ct. 181, 181 n.2 (1993).
2
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 (c) (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
2 The defendant was later found guilty at a jury-waived
trial of the prior offense portions of count 4, unlawful
possession of a firearm as a subsequent offender, G. L. c. 269,
§ 10 (d), and a serious drug offender, G. L. c. 269, § 10G (a).
3
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
4
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.
3 Although one defense to the assault charge was self-
defense, contrary to the assertion in the dissent, the defendant
did not testify "that he was acting in self-defense when he shot
the victim." Post at . He testified that the gun went
off during the struggle, that his finger was not on the trigger,
and that he could not have pulled the trigger.
5
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
6
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
7
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.1 (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
8
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
9
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
4 The Supreme Judicial Court decided Brown after granting
further appellate review of our decision in Commonwealth v.
Brown, 91 Mass. App. Ct. 286 (2017), which also held that
knowledge was an essential element of the offense. Id. at 293.
Our decision in Brown also issued after Mitchell's trial
concluded.
10
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.
11
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."
12
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
5 Although as the dissent suggests, in some contexts we
decline to infer the meaning behind jury verdicts, see post
at , in this context, in determining what the jury
necessarily found, we do examine that question. See, e.g.,
McCray, 93 Mass. App. Ct. at 847.
13
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
14
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
15
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 convicted even though he or she
might have been acquitted by a properly instructed jury. In
those circumstances, there is no "substantial risk of a
miscarriage of justice." Id.
The cause-and-effect relationship between the examination
of what was actively contested and the risk of a miscarriage of
justice is reflected in the language of the Supreme Judicial
Court in the first case to utilize the "actively contested"
16
language, where the court said, "the erroneous instruction on
malice did not relate to an actively contested issue, so it did
not create a substantial risk of a miscarriage of justice."
Commonwealth v. Puleio, 394 Mass. 101, 109 (1985). Whether the
element itself was contested may of course be relevant to
determining whether there is a substantial risk of a miscarriage
of justice, see Commonwealth v. Shea, 398 Mass. 264, 269 (1986)
("whether the issue of intent [on which the jury were in that
case, without objection, erroneously not instructed] was
contested at trial is highly relevant to our determination
whether the error in the judge's charge prejudiced the
defendant"), but our inquiry is whether the failure to instruct
on an element "relate[s] to an issue actively contested at
trial" such that there is a risk that, if properly instructed,
the jury might have acquitted.
To see that the proper inquiry is whether the failure to
instruct on an essential element "relates to" an issue contested
at trial –- not whether the element itself was contested -– one
need look no further than Commonwealth v. Colon, 52 Mass. App.
Ct. 725 (2001), where we held that there was a substantial risk
of a miscarriage of justice in a case similar to this one even
though we explicitly agreed with the Commonwealth that the
precise essential element on which the jury were not instructed
was not actively contested at trial. See id. at 730-731 ("the
17
judge's failure to instruct the jury that they were required to
find an essential element of the crime, namely that the
defendant knew the perpetrator was armed, in order to convict
the defendant of armed robbery on a joint venture basis" created
a substantial risk of a miscarriage of justice even though
"whether the defendant knew his coventurer was armed was not an
issue actively contested at trial" at which "the principal
defense asserted . . . was that the defendant had been mis-
identified and had not been present at the robbery at all, not
that he had been present but did not know that the perpetrator
was armed").
In fact, our appellate courts routinely find a substantial
risk of a miscarriage of justice where the element of an offense
on which there was no instruction was not actively contested,
but where instead that element on which there was no instruction
simply related to an issue that was contested such that a
properly instructed jury might have acquitted the defendant. To
give another example, in Azar, the jury in a murder case were
not instructed with respect to the third prong of malice that
they were required to find beyond a reasonable doubt that "a
reasonable person [in the defendant's position] would [have]
recognize[d] a plain and strong likelihood of death." Azar, 435
Mass. at 684. As in this case, the issue there to which the
instruction related that was actively contested was not the
18
element itself on which the jury were not correctly instructed,
but the underlying facts. A substantial risk of a miscarriage
of justice was found because the Commonwealth's evidence with
respect to what happened "was not incontrovertible, and, indeed,
it was controverted. Defense witnesses, including the defendant
and his two forensic experts, testified to possible alternative
causes of the child's various injuries." Id. at 688.
Similarly, in her opinion for this court in Commonwealth v.
Cowans, 52 Mass. App. Ct. 811 (2001), Justice Cypher concluded
that failure to instruct on intent in a home invasion case
created a substantial risk of a miscarriage of justice where
defense counsel disclaimed all arguments except identity, "even
though counsel's failure to object was a tactical choice based
on the defense strategy of focusing on identity," because "we
cannot say that the verdict would not have been different if the
jury had been properly instructed." Id. at 821.6 Although the
6 Justice Cypher's opinion distinguished a laundry list of
cases, including several cited by the dissent today: "In
contrast, in the cases in which the court concluded that an
erroneous instruction on the element of malice did not create a
substantial risk (or likelihood) of a miscarriage of justice
because identity was the only live issue at trial, the nature of
the killings or assaults compelled an inference of malice. See,
e.g., Commonwealth v. Lee, 383 Mass. [507,] 508, 512-513
[(1981)] (shooting); Commonwealth v. Puleio, 394 Mass. at 102,
109 (same); Commonwealth v. Gabbidon, 398 Mass. [at] 4-5, . . .
(same); Commonwealth v. Shea, 398 Mass. at 269-270 (stabbing);
Commonwealth v. Gagnon, 430 Mass. [348,] 350 [(1999)]
(shooting); Commonwealth v. Medina, 430 Mass. 800, 801, 808
19
defendant did not directly contest the element of intent, it
related to an issue he actively contested at trial –-
identity -- because, had someone else committed the home
invasion, the defendant would not have had the intent to do so.
If the test did focus only on whether the missing element
itself had been contested, it would divorce the test from the
relevant underlying question: whether the error was harmful.
Omitting an instruction on an element can be harmful even if the
defendant did not contest the element itself at trial because,
whether or not the defendant contested the element itself, there
could be evidence in the record that raises a reasonable doubt
about it –- evidence that exists because the defendant contested
a related issue. Conversely, because the test applies only in
cases where there was no objection to the failure to instruct on
the element at issue, even in cases where the error may have led
to the conviction of someone who might have been acquitted by a
properly instructed jury, the element itself may not have been
actively contested.
The dissent's observation that "whether that firearm was
loaded and was known to be loaded while in the defendant's
possession, was neither disputed nor at issue," post at n.11, is
(2000) (beating with baseball bat)." Cowans, 52 Mass. App. Ct.
at 821.
20
therefore beside the point. In this case, the defense
vigorously contested who owned the gun and brought it to the
scene of the shooting. The defense was that the defendant had
wrested the gun from its owner, the alleged victim. There was
sufficient evidence to support this, and, again, the jury's
acquittals indicate that they did not accept wholesale the
Commonwealth's version of events in which the gun belonged to
the defendant. The verdicts suggest the jury may well instead
have believed the defendant's testimony. Neither party
apparently even knew knowledge was an element of the offense,
which is presumably why neither raised it, why no evidence was
put in by the Commonwealth on it, and why there was no explicit
dispute about it. Nonetheless, it "relates to an issue actively
contested at trial" –- whose gun it was –- and so, because the
jury could have concluded that the gun was not the defendant's
and hence that he did not know it was loaded, failure to
instruct on it created a substantial risk of a miscarriage of
justice.
The dissent attempts to bolster its position by saying not
only that knowledge was not contested, but that the defendant's
case "proceeded on the assumption that . . . he knew the firearm
was loaded after he 'grabbed the firearm,' pointed it to the
ground to avoid getting shot, and, as he or the victim pulled
the trigger, a bullet discharged. When the trigger was pulled
21
again, another shot was fired, confirming that the firearm was
loaded. When the trigger was pulled yet again, yet another
bullet discharged, thereby confirming for a third time that the
firearm was loaded. The defendant further testified that he
fled, taking the very same gun, which had just fired, because he
feared the victim would shoot him despite the presence of the
police . . . ." (Emphasis added; footnote omitted.) Post
at . Indeed, the dissent goes so far as to state that
the defendant "implicitly conceded" knowledge at trial. Post at
n.15.
If knowledge the gun was loaded was conceded by the
defendant, of course, there could be no substantial risk of a
miscarriage of justice from failure to instruct on that element.
But the dissent's contention that knowledge was the premise of
the defendant's case and that he conceded it is not accurate.
The parties, apparently unaware that knowledge was an element of
the offense, said literally nothing about knowledge at trial,
and nothing in the defendant's testimony implies anything to the
contrary. The dissent points to a statement by defense counsel
in closing about the defendant's possession of the gun and the
ammunition inside it as though it concedes knowledge. Post
at . Counsel said that the jury should "find [the
defendant] not guilty under [a] theory of necessity, because he
didn't feel that he had any other reasonable alternative than to
22
remove that firearm and that ammunition from that scene at that
time." But the defendant was charged with possession of
ammunition, a charge on which the jury were not instructed
knowledge was an element, and so the statement is only a
statement of what the defendant always conceded: that he took
the gun, which was, in fact, loaded, from the scene. It implies
nothing about his knowledge at the time whether or not the gun
was loaded.
The dissent's claim that the defendant had to know the gun
was loaded after the first shot, or the second, or the third,
requires little discussion. See post at . As described
above, a gun discharging can demonstrate only that the gun was
loaded prior to the trigger having been pulled. It is not
evidence that an individual knew the gun was loaded prior to the
bullet discharging, nor is it evidence, if that is what the
dissent means, that the gun remains loaded afterward. All it
can "confirm" is that the gun was loaded before it fired. It
has no logical bearing on whether the defendant knew it was
loaded prior to the trigger being pulled or whether he knew any
bullets remained afterward. Jurors are permitted to draw only
reasonable inferences. And if, as the defendant testified, this
was Newsom's gun, brought by Newsom to the scene, there is no
basis in the evidence for an inference that the defendant knew
23
once he gained possession of the gun after the shots fired that
it was still loaded.
The dissent contends that concluding the defendant had no
knowledge the gun was loaded is "conjecture," and that examining
the inferences that may be drawn from the evidence of the gun's
discharge is a mere "academic exercise." Post at . But
these are just pejorative characterizations, and they are wrong.
If the jury accepted the defendant's testimony -– as they may
well have, and as we must assume they did –- logically the
defendant could not have known whether the gun was loaded when
he obtained it. He may have thought or hoped or feared that it
was. But if it was not his gun, in the absence of evidence of
some prior relation to it, he could not have known whether it
contained ammunition when he took possession of it. And, to the
extent the dissent would rely on the defendant pointing the gun
downward, it is of course prudent to point away from oneself a
gun that even might be loaded, and to remove such a gun from a
scene where someone hostile might obtain it.
Though the dissent attempts to minimize our examination of
the inferences supported by the evidence by disparaging it as
"academic" or "conjectural," it cannot deny that after the
discharge of each bullet the defendant could not have known
whether there were additional bullets in the gun if it was not
his and he had no prior relationship to it -– the very issue
24
that was contested at trial. Indeed, the dissent's confusion on
this point is reflected in its statement that this same
reasoning, if accepted, would exculpate the defendant, even if
he testified to bringing the gun to the scene, from a finding
that he knew the firearm was loaded. See post at n.13. Again,
however, the jury must draw reasonable inferences. It is
reasonable to infer that one who brings a gun to a location
knows whether or not it is loaded;7 what is unreasonable is to
infer that someone who has never seen it before knows how many
bullets, if any, are contained within it, such that he could
know whether the gun was loaded either at the outset or after
the discharge of one or more bullets. See, e.g., Commonwealth
v. Galarza, 93 Mass. App. Ct. 740, 748 (2018) (no rational juror
could find knowledge firearm was loaded in that case because
"the defendant 'could not have discerned whether the gun was
loaded merely by looking at it'"), quoting Brown, 479 Mass. at
605.
The dissent also states that "[a]n argument to the jury
that the defendant was unaware that the firearm was loaded would
have undermined or even contradicted his defense of necessity."
Post at . That, too, is incorrect. The defendant's
And of course, notwithstanding the suggestion in the
7
dissent, post at n.13, it would not matter whether he knew
precisely how many bullets are in it.
25
version of events is that he fled with the gun to avoid being
shot. Lack of knowledge whether it was loaded does not
undermine the defense. If his story is true, he was justified
in taking the gun if there was any risk it might still be
loaded, which there was, even if he lacked actual knowledge
whether it was loaded or not.
Had the jury accepted the defense put forward at trial,
concluding that the gun did not belong to the defendant, as the
acquittals suggest they may have, they would have not have been
"required to find," Azar, 435 Mass. at 688, that the defendant
had knowledge it was loaded. Indeed, they could not have found
beyond a reasonable doubt that he did. The error in failing to
instruct on knowledge, therefore, "relate[d] to an issue
actively contested at trial." Gabbidon, 398 Mass. at 5. The
defendant was harmed by the error in that he may have been
convicted even though, given his defense, the jury, if properly
instructed, might well have found the element of knowledge not
proven beyond a reasonable doubt. This case therefore is not
within the exception to our ordinary substantial-risk-of-a-
miscarriage-of-justice rules that applies to instructional
errors that do not "relate to an issue actively contested at
trial" (emphasis added). Id.
c. The jury's other verdicts. We turn next to the other
verdicts rendered by the jury. As McCray makes clear, if the
26
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 -- here, knowledge the
gun was loaded -- there would be no substantial risk of
miscarriage of justice. 93 Mass. App. Ct. at 847.
Notwithstanding the testimony of the Commonwealth's
witnesses that the gun at issue was brought to the scene of the
shooting by the defendant, and that he pulled it out of his
waistband and fired several shots toward the alleged victim, the
jury in this case acquitted the defendant of armed assault with
intent to murder, assault and battery by means of a dangerous
weapon causing serious bodily injury, and assault and battery by
discharging a firearm. A jury finding that the defendant knew
the gun was loaded obviously cannot be ineluctably inferred from
the jury's verdicts on those counts, where the jury did not
convict the defendant of the assaults described by the
Commonwealth's witnesses. Cf. McCray, 93 Mass. App. Ct. at 847
(guilty verdicts on other counts meant jury "necessarily found"
element on which they were not instructed). Indeed, as spelled
out above, one possible explanation for the jury's split verdict
on the counts before them is that they did not accept the
Commonwealth's theory that the defendant brought the gun to the
scene and used it there on the alleged victim. These other
verdicts indicate that the jury did not necessarily find that
27
the defendant knew that the gun was loaded. Indeed, if the
verdicts reflect the jury's acceptance of the defendant's theory
that he did not commit the assaultive crimes but possessed the
gun only because he took it from the scene to prevent Newsom
from recovering it, they could not have found that he had the
requisite knowledge that the gun was loaded.
The Commonwealth does not even argue that the jury's other
verdicts compel a conclusion that the jury necessarily found the
element of knowledge that the firearm was loaded. The dissent
though, perhaps recognizing the weakness of its primary, "not-
actively-contested" argument for affirmance, cuts from whole
cloth an alternative, "independent ground" for affirmance in the
fact that the defendant was convicted of possession of
ammunition on the basis of the ammunition inside the gun. Post
at .
At first blush, even though the possession of ammunition
conviction was vacated by the trial court as duplicative of the
possession of a loaded firearm charge, this might seem like a
strong argument. After all, knowledge that what one possesses
is ammunition is an element of possession of ammunition. The
text of the statute does not say so, see G. L. c. 269, § 10 (h),
but this was announced by the Supreme Judicial Court in
Commonwealth v. Johnson, 461 Mass. 44, 53 (2011). The
ammunition involved in this case was concededly only the
28
ammunition inside the gun (including the attached magazine) and,
as we held recently in Commonwealth v. Woods, 94 Mass. App. Ct.
761 (2019), if a defendant has been convicted of possession of a
loaded firearm and of possession of ammunition based on the
ammunition within that firearm, and the element of knowledge was
not instructed on with respect to the firearm charge, but "the
jury were instructed clearly that a required element for a
verdict of guilty [on the ammunition charge] was that the
'defendant knew that he possessed that ammunition,'" there is no
substantial risk of a miscarriage of justice in the failure to
instruct on knowledge as an element of the loaded firearm
charge.
In this case, however, the argument from the conviction on
the ammunition charge is insubstantial. This is because, as the
dissent is forced to acknowledge, "the judge's instructions on
the charge of possession of ammunition did not specify knowledge
as an element." Post at . Put more transparently, even
though the trial took place after Johnson, the jury were not
instructed that knowledge was an essential element of the crime
of possession of ammunition -- not clearly, not at all.
The dissent attempts to cobble together a theory that the
jury actually did find knowledge in convicting on the ammunition
charge because the general instruction on possession included in
passing an example of possession in which the possession was
29
knowing. But, as we explain below, the jury were not instructed
that knowledge was necessary in order to prove possession; they
were instructed, correctly, that it was not. An examination of
the instructions as a whole, though perhaps somewhat tedious,
amply demonstrates that the jurors would not have understood
possession of ammunition to contain an element of knowledge.
To begin with, as we have said, with respect to the
possession of ammunition charge, the judge omitted the essential
element of knowledge, which was requested by neither party.8 The
instructions on that count therefore did not require the jury
necessarily to find that the defendant knowingly possessed the
ammunition in the gun. By contrast, with respect to each
possessory count except the ammunition charge the judge
8 The judge instructed,
"Count [7] is unlawful possession of ammunition. The
[d]efendant is also charged under the same statute . . .
with unlawful possession of ammunition. [The statute]
provides, in pertinent part, that whoever owns, possesses,
or transfers possession of ammunition without complying
with the requirements relating to the firearm
identification card shall be punished. In order to prove
the [d]efendant guilty of this offense, the Commonwealth
must prove each of the following elements beyond a
reasonable doubt: [first,] that the [d]efendant possessed
ammunition; . . . [second,] that what the [d]efendant
possessed met the legal definition of ammunition; [third,]
that he did so without complying with the requirements
relating to the firearm identification card; and [fourth,]
the absence of necessity . . . ."
30
instructed that knowledge was a separate, essential element of
the offense, without a finding beyond a reasonable doubt on
which the jury could not convict the defendant. In addition, he
described the criminal act with respect to each possessory crime
except possession of ammunition and possession of a loaded
firearm as "knowing possession."9
9 When charging on count 4, unlawful possession of a
firearm, the judge began,
"A statute in the Commonwealth provides, in pertinent
part: Whoever, except as provided or exempted by statute,
knowingly has in his possession or knowingly has under his
control in a vehicle a firearm, loaded or unloaded,
without, either being present in his residence or place of
business, having a license to carry firearms or being
exempt from license requirement, shall be guilty of an
offense. The Commonwealth must prove three elements beyond
a reasonable doubt on this offense. [First,] the
[d]efendant had an object in his possession or under his
control in a vehicle; . . . [second,] the object was a
firearm; [third,] the [d]efendant knew the object he
possessed was a firearm, meaning [the] [d]efendant
possessed it knowingly, and [fourth,] the absence of
necessity."
With respect to count 5, unlawful possession of a large-
capacity feeding device, the judge said,
"The [d]efendant is also charged with unlawfully and
knowingly having in his possession a large-capacity feeding
device. . . . In order to prove the [d]efendant guilty of
this offense, the [d]efendant [sic] must prove three [sic]
things beyond a reasonable doubt: [first,] that the
[d]efendant possessed an item; [second,] the item meets the
definition of a large-capacity feeding device; [third,] the
[d]efendant knew that he possessed this large-capacity
feeding device; [fourth,] the absence of necessity, which
I've defined for you."
31
Any reasonable juror thus would have understood that,
unlike the other counts, conviction on the possession of
ammunition charge did not require proof beyond a reasonable
doubt of knowledge.10
The judge did give a general instruction on possession as
part of the charge on count 4, the first possessory charge on
Even with respect to count 6, possession of a loaded firearm,
the judge instructed that possession of the firearm had to be
knowing, though knowledge of the fact it was loaded was not
stated as a requirement:
"[I]f 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, which I've already defined for you,
you shall find the [d]efendant guilty of possession of a
loaded firearm. If you find that the Commonwealth has
failed to prove any one of these elements beyond a
reasonable doubt, then you shall find the [d]efendant not
guilty."
10See Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 491
(2013) (despite an instruction that the defendant was required
to share "the intent required for" commission by his coventurer
of "armed assault in a dwelling" and "assault by means of a
dangerous weapon" -- which ordinarily would convey that the
defendant was required to know that his coventurer was armed --
"[i]n light of the failure to give a knowledge-of-the-gun
instruction on the home invasion, armed assault in a dwelling,
and assault by means of a dangerous weapon charges, the judge's
careful explanation that the jury had to find beyond a
reasonable doubt that the defendant knew his coventurer
possessed a firearm before they could convict him of the charge
of possession of a firearm in the commission of a felony . . .
could only have been taken to imply that no such requirement
existed for the other three offenses").
32
which he instructed, and he referred back to it in each
instruction he gave on the other possessory offenses, though
without repeating it. That instruction, however, defined
possession in a way that, correctly, did not require knowledge.
The judge began, "The first element the Commonwealth must prove
beyond a reasonable doubt is that the [d]efendant possessed a
firearm. A person who has physical control over an object and
has the intent to exercise such control is in actual possession
of it." Under that definition, possession need not be knowing.11
The judge then made clear that knowing possession was one
example, but only one example, of possession, by continuing, "A
person who knowingly has direct, physical control over an object
at a given time is then in actual possession of it."
These instructions, then, state that knowing possession
suffices to show possession, but that knowledge is not a
necessary element of possession.
It was only after this initial instruction that the judge
continued on to give the example on which the dissent would
rely. That portion of the instruction in full read, "Actual
possession implies control and power over the thing or the
11 We note that the phrase "intent to exercise [physical]
control [over an object]" does not require specific knowledge of
an object's contents or its nature. See Commonwealth v. Lee,
331 Mass. 166, 168 (1954).
33
object. For example, I have this pen in my hand; I know it's a
pen; I have control over it; I can do whatever I want with it.
Clearly, I have the actual possession of this pen." Again, this
is an accurate instruction: It defines possession in terms of
control and power. It then gives an example in which possession
is knowing as one in which "clearly" there is actual control.
This instruction does not suggest what would be incorrect,
that knowledge is an essential component of possession. Nor, if
it did, would the judge have concluded he was required to
instruct on knowledge as an additional element of several of the
possessory offenses. See note 9, supra. Nor, for that matter,
given the instruction on possession of a loaded firearm, would
it have been appropriate to treat the ammunition and loaded
firearm convictions as duplicative since, if knowledge were an
element of the ammunition offense, each crime would have had an
additional element the other did not.
In any event, given the clear import of his other
instructions on the possessory offenses, even if the example
about the pen could be read as the dissent would read it, the
language cited by the dissent would not be a clear enough
statement of knowledge being a required component of possession
that it would permit us to conclude with sufficient certainly to
dispel the substantial risk of a miscarriage of justice that the
jury in convicting the defendant of possession of ammunition
34
found beyond a reasonable doubt that possession was knowing.
See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (error
creates a substantial risk of a miscarriage of justice if there
is a "plausible inference" that the jury's result on the charge
"might have been otherwise but for the error").
Conclusion. On the indictment charging Mitchell with
unlawful possession of a firearm, the judgment is affirmed. On
the indictment charging him with unlawful possession of a loaded
firearm, the judgment is reversed and the verdict is set aside.
So ordered.
NEYMAN, J. (dissenting in part, with whom Meade, J.,
joins). I agree with the majority's affirmance of the
conviction of unlawful possession of a firearm as a subsequent
offense and after having been convicted of a serious drug crime,
G. L. c. 269, §§ 10 (a) & (d), 10G (a). I disagree, however,
with the majority's conclusion that the judge's failure to
instruct the jury on the knowledge element of the unlawful
possession of a loaded firearm charge created a substantial risk
of a miscarriage of justice. The majority opinion conceives an
issue not pursued at trial, or even on appeal,1 and contravenes
the well-established rule that the substantial risk standard
"does not encompass an abstract, theoretical possibility of a
miscarriage of justice, utterly divorced from the case as it was
tried." Commonwealth v. Russell, 439 Mass. 340, 351 (2003). On
the record before us, there was no such risk, and I would thus
1 In his appellate brief, the defendant did not argue that
the failure to instruct the jury on the knowledge element of the
loaded firearm charge created a substantial risk of a
miscarriage of justice. Instead, the defendant argued that the
instructions "produced a harmful error that was preserved under
the clairvoyance exception." The clairvoyance exception does
not apply here. See Commonwealth v. Gagnon, 37 Mass. App. Ct.
626, 629 n.2 (1994) (clairvoyance exception does not apply where
court did not announce new rule of constitutional significance
but only clarified meaning of criminal statute).
2
affirm the conviction of unlawful possession of a loaded
firearm. See G. L. c. 269, § 10 (n).2
Background. 1. The Commonwealth's case. Officer Samuel
Gomez-Gonzales of the Springfield police department testified at
trial that from a distance of approximately twenty feet away, he
observed one man, later identified as the victim, Marquise
Newsom, push the other man, later identified as the defendant.
Officer Gomez-Gonzales then observed the defendant "push back"
the victim, pull out a firearm from his own waistband, and fire
several shots at the victim.3 The shooting occurred outside of
Fat Cat's Bar and Grill (Fat Cat's) and the neighboring Glo
nightclub. At the time of the shooting, the defendant faced
toward Fat Cat's, while the victim's back was toward Fat Cat's.
After the first shot, the victim "started running." The
defendant continued to fire in the victim's direction, and then
ran away in the opposite direction, tucking the firearm back
into his waistband as he fled the scene. Officer Gomez-Gonzales
2 The defendant was sentenced to from five years to five
years and one day in State prison for the conviction of unlawful
possession of a firearm, subsequent offense, and two years of
probation from and after that sentence for the conviction of
unlawful possession of a loaded firearm.
3 The Commonwealth introduced testimony that the victim and
the defendant were members of rival gangs that were "not
friendly." The defendant denied being a member of a gang, and
testified that he and the victim were not "enemies," but also
"not friends."
3
ran after the defendant and screamed for him to stop. The
defendant continued to flee, ran down an alleyway, and climbed a
fence whereupon his pant leg "got stuck." Officer Gomez-
Gonzales drew his gun and told the defendant to stop and get
down. The defendant ignored the order, made his way over the
fence, looked at the officer, and again tried to run. The
defendant did not stop until Officer Gomez-Gonzales "got over
the fence" and pointed his gun at him.4 While the defendant
climbed the fence, Officer Gomez-Gonzales saw the gun, a black
.40 caliber firearm, fall to the ground. Officers secured the
firearm, which was loaded with thirteen live rounds of
ammunition -- twelve rounds in the magazine and one in the
chamber.
2. The defense case. The sole and exclusive theories of
defense at trial were self-defense and necessity. Defense
counsel told the jury in his opening statement, "[w]e're going
to assert self-defense as to the action that caused the injury
to [the victim]. . . . And we're going to assert the defense of
necessity as to [the defendant] possessing a firearm." In his
closing argument, defense counsel repeated these themes, stating
4 The jury could have viewed the defendant's flight from the
crime scene, and further flight from the pursuing officer, as
consciousness of guilt evidence. See Commonwealth v. Rojas, 388
Mass. 626, 629 (1983). The judge provided a consciousness of
guilt instruction.
4
that the defendant "is going to assert the defense of self
defense as to these -- the discharging of a firearm. . . .
We're going to assert the defense of necessity as to the
possessory offenses of possessing the firearm and the ammunition
. . . ."
Consistent with his specified defenses, the defendant
acknowledged that he possessed the firearm and ammunition, but
only after he seized it from the victim out of necessity.5
Specifically, the defendant testified that the victim and
another male approached him in an aggressive manner. The victim
then reached into his own waistband, and drew the gun. The
defendant further testified, on direct examination, that he
grabbed the victim's hands with both of his own hands, "grabbed
the firearm," and "the next thing you know, the gun goes off
. . . three times." The defendant claimed that he was unsure
who pulled the trigger, and stated that the firearm was pointed
toward the ground during the struggle. He testified that the
victim "let go of the gun and just took off running in the
opposite direction." The defendant further stated that he took
5 Consistent with the defendant's testimony, defense counsel
argued in closing that "[the defendant] didn't feel that he had
any other reasonable alternative than to remove that firearm and
that ammunition from that scene at that time."
5
the firearm and fled the scene so that the victim or the
victim's companion "couldn't shoot [him]."
3. Facts not in dispute. There is no dispute that the
sole defenses at trial were necessity and self-defense. There
is no dispute that the victim suffered a wound to his thumb,
which was "hanging by [the] skin"; that a bullet fragment was
lodged in the "last part of the knuckle of the [victim's]
thumb"; that bullet holes from the shooting were found on the
exterior wall of Fat Cat's; that a projectile was located in the
wall; and that officers retrieved three shell casings from in
front of Fat Cat's. There is likewise no dispute that the
firearm carried by the defendant and retrieved by the police was
the firearm used in the shooting; that the magazine was capable
of holding fifteen rounds; that the defendant fled from the
crime scene, ran down an alleyway, and climbed a fence whereupon
he "got stuck"; and that the firearm discarded by the defendant
was loaded with thirteen live rounds of ammunition -- twelve
rounds in the magazine and one in the chamber. Finally, there
is no dispute that the victim did not cooperate with the
investigation and did not testify at trial.
Discussion. For the first time on appeal, the defendant
contends that the omission of the knowledge element from the
instructions on unlawful possession of a loaded firearm
6
constituted reversible error.6 He claims that a "reasonable jury
might have found that [he] did not know, even after each shot,
whether the gun remained loaded." This argument is unavailing.
To obtain a conviction under G. L. c. 269, § 10 (n), the
Commonwealth must prove that the defendant "knew the firearm he
or she possessed was loaded." Commonwealth v. Brown, 479 Mass.
600, 601 (2018).7 See Commonwealth v. Johnson, 461 Mass. 44, 52-
53 (2011). Accordingly, the judge erred by failing to instruct
the jury on this element, and, in the absence of any objection,
the court's review is limited to whether the error created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Alphas, 430 Mass. 8, 13 (1999). This standard requires the
court to "review the evidence and the case as a whole,
considering the strength of the Commonwealth's case, as well as
6 The judge instructed, in relevant part, that unlawful
possession of a loaded firearm required the Commonwealth to
prove "[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."
7 In Brown, 479 Mass. at 601, 608, issued after the trial in
the present case, the Supreme Judicial Court confirmed that
knowledge that a firearm is loaded is an element of G. L.
c. 269, § 10 (n). In Brown, the defendant claimed that the
evidence was insufficient to prove that he knew the firearm in
his possession was loaded. The Supreme Judicial Court agreed
and reversed the conviction. Id. at 605-609. The defendant
here does not raise a sufficiency argument, nor could he
credibly do so given the evidence in this case.
7
the nature and significance of the alleged errors."
Commonwealth v. Chase, 433 Mass. 293, 299 (2001), citing Alphas,
supra. The court will reverse "only in the extraordinary
situation where, after such a review, we are left with
uncertainty that the defendant's guilt has been fairly
adjudicated." Chase, supra. Here, where the explicit theories
of defense were necessity and self-defense, where no party so
much as intimated that the defendant lacked knowledge, where the
omitted portion of the instruction "did not affect the defense
that the defendant chose to pursue," Commonwealth v. Robinson,
444 Mass. 102, 106 (2005), and where the jury convicted the
defendant on the lesser included offense of possession of
ammunition, there is no such uncertainty.
Our cases hold that "the omission of an element of the
crime from the jury instruction is not among the very limited
class of structural errors subject to automatic reversal, and
upon proper objection would be subject to harmless error
analysis." Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7
(2001), citing Chapman v. California, 386 U.S. 18, 24 (1967),
and Neder v. United States, 527 U.S. 1, 7-10 (1999). It thus
follows that the omission of an element of the crime does not
invariably create a substantial risk of a miscarriage of
8
justice.8 In evaluating whether such a substantial risk exists,
"we must evaluate the impact of the error in the context of the
entire trial. In the performance of this task, we pay
particular attention to those issues actively contested at
trial." Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986).
"[W]hether a particular element of a crime was contested at
trial is important to a determination whether a trial error
resulted in a substantial risk of a miscarriage of justice."
Id. Therefore, where an erroneous instruction "did not relate
to an issue actively contested at trial, no substantial risk of
a miscarriage of justice result[s]." Id., citing Commonwealth
v. Puleio, 394 Mass. 101, 109 (1985). See Commonwealth v.
Spearin, 446 Mass. 599, 609 (2006). This rule is based on the
longstanding principle that "no harm accrues to a defendant if
an error does not relate to an issue actively contested at
trial." Gabbidon, 398 Mass. at 5. This principle has been
consistently applied in numerous cases involving various
defenses, including self-defense, misidentification, and alibi.
See, e.g., Spearin, 446 Mass. at 609; Robinson, 444 Mass. at
106-107; Commonwealth v. Mienkowski, 91 Mass. App. Ct. 668, 675
8Again, the defendant did not contend on appeal that the
erroneous instruction created a substantial risk of a
miscarriage of justice. He only argued that it constituted
harmful error. See note 1, supra.
9
(2017); Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 263-264
(2013); Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 249-250
(2012); Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 565-566
(2006); Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 463-466
(2004); Commonwealth v. Jenkins, 47 Mass. App. Ct. 286, 292
(1999). Cf. Commonwealth v. Azar, 435 Mass. 675, 676 (2002)
("erroneous instructions to the jury on a contested element of
the crime charged did create a substantial risk of a miscarriage
of justice").
The same considerations apply when the omitted element
relates to a defendant's mens rea. See, e.g., Commonwealth v.
Shea, 398 Mass. 264, 269 (1986) (erroneous instruction on intent
to murder did not create substantial risk of a miscarriage of
justice where defense was that another person stabbed victim and
intent was not contested at trial); Commonwealth v. Picher, 46
Mass. App. Ct. 409, 411 (1999) (erroneous instruction on intent
required for assault and battery by means of dangerous weapon
did not create substantial risk of a miscarriage of justice
where "essential theory of the defense at trial was
misidentification, not that the victims were unintentionally hit
by gunfire"); Commonwealth v. Medina, 43 Mass. App. Ct. 534,
535-536 (1997) (error in intent instruction on charge of assault
and battery on a police officer did not create substantial risk
of a miscarriage of justice where defendant claimed self-defense
10
and never argued that touching of officer was accidental);
Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 529 (1988)
(alleged error in malice instruction did not present substantial
risk of a miscarriage of justice where "there was no serious
dispute" that the arson was "purposeful and intended to cause
substantial destruction to the building"). Contrast
Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 820-821 (2001)
(erroneous instruction on home invasion charge, to effect that
jurors could find element of threat of imminent use of force
without considering defendant's intent, created substantial risk
of miscarriage of justice where jury question showed that jury
was grappling "particularly with the element of force or the
threat of imminent force").
With these principles in mind, I return to the present
case. It is undisputed that the sole theories of defense,
specified and pursued in opening statement, throughout trial,
and in closing argument, were self-defense and necessity.
Consistent with the defendant's arguments, the judge carefully
and correctly instructed the jury as to both theories of
defense. Moreover, the judge specified that self-defense
applied to the assault offenses, while the necessity defense
applied to the possessory offenses. The jury rejected the
necessity defense, and found the defendant guilty of unlawful
11
possession of a firearm, possession of ammunition, and
possession of a loaded firearm.9
As previously noted, the defendant now argues that the
failure to instruct the jury that knowledge is an element of the
crime of possession of a loaded firearm created a substantial
risk of a miscarriage of justice. Under the precedent described
above, we must first determine whether the error related to an
issue actively contested at trial. See Gabbidon, 398 Mass. at
5.10 It did not. At trial, neither the defendant nor his
The majority speculates that the jury's acquittal on the
9
assault offenses suggests that they believed the defendant's
version of events. Ante at . This is the type of
guesswork in which we have said we will not engage. See
Commonwealth v. Rogers, 8 Mass. App. Ct. 646, 652 (1979) ("It is
not open for us to speculate about the jury's internal decision-
making process"). Moreover, even were we to accept such
speculation, it would merely confirm that the defendant shot the
victim in self-defense, as the defense insisted throughout
trial, but would not support the theoretical claim that the
defendant lacked knowledge that the firearm was loaded.
The majority maintains that the dissent misperceives the
10
test for evaluating whether the error in the judge's instruction
created a substantial risk of a miscarriage of justice. Ante
at . This is not so. The test is clear:
"To determine whether the erroneous instruction created a
substantial risk of a miscarriage of justice, we must
evaluate the impact of the error in the context of the
entire trial. In the performance of this task, we pay
particular attention to those issues actively contested at
trial. . . . [W]hether a particular element of a crime was
contested at trial is important to a determination whether
a trial error resulted in a substantial risk of a
miscarriage of justice. We have held previously that no
12
counsel disputed that the firearm was loaded or that the
defendant was aware of that fact. See Mezzanotti, 26 Mass. App.
Ct. at 529. Instead, as discussed above, the defense focused
exclusively on the theories of self-defense and necessity. As
the defendant testified, "it was like a fight or flight . . .
reaction." Neither the issue of knowledge, nor issues related
to knowledge, were raised, argued, or pursued in any way.11 See
Gabbidon, 398 Mass. at 5 ("we pay particular attention to those
issues actively contested at trial"). See also Robinson, 444
Mass. at 106-107; Shea, 398 Mass. at 269.
The evidence established that the firearm was loaded, and
the defendant's defense proceeded on the assumption that -- at a
harm accrues to a defendant if an error does not relate to
an issue actively contested at trial."
Gabbidon, 398 Mass. at 5. I apply this test herein.
11 The majority contends that "the defense vigorously
contested who owned the gun and brought it to the scene of the
shooting," and that thus the omitted instruction created a
substantial risk of a miscarriage of justice. Ante at .
I agree that the identity of the person who brought the firearm
to the scene was disputed. However, as detailed herein, whether
that firearm was loaded and was known to be loaded while in the
defendant's possession, was neither disputed nor at issue. For
that reason, this case is unlike Commonwealth v. Galarza, 93
Mass. App. Ct. 740, 748 (2018) (defendant "could not have
discerned whether the gun was loaded merely by looking at it"
[citation omitted]), relied on by the majority, ante at .
Here, the defendant did not merely "look at" the firearm.
Instead, if we accept his own testimony on direct examination,
he "grabbed" the firearm, held it as bullets shot from it upon
each pull of the trigger, and fled with it.
13
minimum -- he knew the firearm was loaded after he "grabbed the
firearm," pointed it to the ground,12 and, as he or the victim
pulled the trigger, a bullet discharged. When the trigger was
pulled again, another shot was fired, confirming that the
firearm was loaded. When the trigger was pulled yet again, yet
another bullet discharged, thereby confirming for a third time
that the firearm was loaded. The defendant further testified
that he fled, taking the very same gun, which had just fired,
because he feared the victim would shoot him despite the
presence of the police, from whom he continued to flee. Thus,
even if the jury believed the defendant's account, there was no
dispute that he possessed the firearm and knew the firearm was
loaded. See Commonwealth v. Hall, 80 Mass. App. Ct. 317, 330
(2011) ("possession does not depend on the duration of time
elapsing after one has an object under his control so long as,
at the time of contact with the object, the person has the
control and the power to do with it what he or she wills").
Furthermore, such knowledge was consistent with the
defenses pursued at trial. An argument to the jury that the
defendant was unaware that the firearm was loaded would have
12The Commonwealth contended at trial that the physical
evidence, including the bullet and bullet holes found in the
wall of Fat Cat's and the bullet wound to the victim,
contradicted the defendant's testimony and theory of the case.
14
undermined or even contradicted his defense of necessity.
Contrast Azar, 435 Mass. at 688-689 ("the defense's medical
evidence demonstrated that a moderate trauma was indicated, and
that the child's head injuries were consistent with the
defendant's account of the events"). As defense counsel
contended in closing argument, "find him not guilty under [a]
theory of necessity, because he didn't feel that he had any
other reasonable alternative than to remove that firearm and
that ammunition from that scene at that time." See Alphas, 430
Mass. at 13 (in substantial risk calculus, reviewing court
analyzes whether it can be inferred "from the record that
counsel's failure to object was not simply a reasonable tactical
decision" [citation omitted]).
In view of the evidence and defense proffered at trial, the
defendant now contends, for the first time on appeal, that "[a]
reasonable jury might have found that [he] did not know, even
after each shot, whether the gun remained loaded." In other
words, the defendant suggests that although he knew that the
firearm was loaded at some point, he did not know whether the
firearm was "still" loaded after each successive shot. The
argument is unavailing.
When the court considers whether an error created a
substantial risk of a miscarriage of justice, we do not look for
theoretical or conjectural risks. See Proulx, 61 Mass. App. Ct.
15
at 466 ("A mere possibility of a different outcome will not
satisfy [the burden to show there is a substantial risk that the
outcome of the trial would have been different]" [citation
omitted]). To be sure, as an academic exercise, one could now
posit -- as the defendant does -- that it would have been
conceivable to argue that he did not know that the firearm was
"still" loaded after each successive shot, but, as discussed
supra, such an argument, in addition to being based on
conjecture,13 would have undermined the precise defense pursued
throughout trial. See Proulx, 61 Mass. App. Ct. at 464 ("the
[present] case was not tried on the theory now advanced on
appeal"). An appellate court should not concoct scenarios or
possibilities not pursued at trial. See Russell, 439 Mass. at
351 (substantial risk standard "does not encompass an abstract,
theoretical possibility of a miscarriage of justice, utterly
divorced from the case as it was tried"). This case does not
13Under the view articulated by the majority, even if the
defendant testified that he had brought the firearm to the
scene, there would nonetheless be a substantial risk of a
miscarriage of justice because, in theory, one could not
"ineluctably infer[]" that the defendant knew precisely how many
bullets, if any, were ever in the large-capacity magazine, even
after firing three shots therefrom. Ante at . One could
hypothesize that the defendant may not have checked the firearm
for ammunition prior to arriving at the scene, or may not have
loaded it himself. This is precisely the line of conjecture,
divorced from trial, in which we do not engage. See Russell,
439 Mass. at 351; Proulx, 61 Mass. App. Ct. at 466.
16
present the "extraordinary situation" in which we would overturn
a conviction under the substantial risk standard. Chase, 433
Mass. at 299.14
In short, the judge's erroneous instruction did not
materially affect the case and, therefore, did not rise to the
level of a substantial risk of a miscarriage of justice.15 See
14The majority's reliance on Cowans, 52 Mass. App. Ct. at
820-821, is misplaced. See ante at . In Cowans, the
only contested issue was the identity of the assailant.
Nonetheless, we concluded that an erroneous instruction on the
element of intent created a substantial risk of a miscarriage of
justice because the jury asked questions about the nature of the
intent required. See Cowans, supra (although "there are
numerous cases in which the [Supreme Judicial Court] has held
that an error in the jury instructions on malice did not create
a substantial risk . . . of a miscarriage of justice where the
only contested issue was the identity of the killer or
assailant[,] . . . [w]hat prevents this case from following this
line of precedent . . . is that here the jury grappled with the
elements of home invasion, and particularly with the element of
force or the threat of imminent force"). In other words, it was
clear that the issue of intent was at the forefront of the
jury's deliberations. Here, unlike Cowans, there were no such
jury questions and no indication that the jury grappled with the
elements of the possessory offenses or issues related thereto.
Likewise, the majority's reliance on Azar, 435 Mass. at
688-689, is misplaced. See ante at , . In that
case, "erroneous instructions to the jury on a contested element
of the crime charged did create a substantial risk of a
miscarriage of justice." Id. at 676. Here, by contrast, the
instructions did not pertain to a contested element.
15Although the defendant implicitly conceded the issue of
knowledge at trial, to the extent that he never explicitly
conceded the issue, he fares no better. See Picher, 46 Mass.
App. Ct. at 411-412 (no substantial risk of miscarriage of
justice arose from incorrect intent instruction, notwithstanding
defendant's assertion that he never "conceded" issue of intent,
where essential theory of defense at trial was misidentification
17
Robinson, 444 Mass. at 107 (erroneous instruction did not result
in substantial risk of miscarriage of justice where error "did
not go to any disputed issue in the case or otherwise compromise
the theory of defense"); Puleio, 394 Mass. at 109 ("The
principal issue at trial was not whether a murder had been
committed. Rather, it was whether the murder had been committed
by the defendant . . . . Thus, the erroneous instruction on
malice did not relate to an actively contested issue, so it did
not create a substantial risk of a miscarriage of justice").
Contrast Azar, 435 Mass. at 688-689 (erroneous malice
instruction created substantial risk of miscarriage of justice
because malice was actively contested issue at trial in which
defendant and two forensic experts testified to alternative
causes of child decedent's injuries). As the issue belatedly
raised on appeal did not relate to an actively contested issue,
"[t]here was no reason for the jury to reach any such issue and
little likelihood that they might have done so from the evidence
presented to them." Commonwealth v. Molle, 56 Mass. App. Ct.
621, 629 (2002).
Finally, the conclusion that the erroneous instruction did
not create a substantial risk of miscarriage of justice is
and evidence was strong that firing of shots was not
accidental).
18
supported by an independent ground, as explained in the court's
recent decision in Commonwealth v. Woods, 94 Mass. App. Ct. 761
(2019). There, as here, the jury convicted the defendant of the
lesser included offense of unlawful possession of ammunition
"located within the firearm," which served as the basis for
affirming the illegal possession of a loaded firearm conviction.
Id. at 768. As the court explained, "[b]ecause the jury found
that the defendant knowingly possessed the ammunition within the
firearm, the failure to instruct the jury that they were
required to find that he knew the handgun was loaded with
ammunition in order to return a verdict of guilty on the charge
of possession of a loaded firearm was of no significance." Id.16
Likewise, in the present case, it is undisputed that the
defendant was also convicted of the lesser included offense of
possession of ammunition, and the only ammunition at issue was
that within the firearm. Thus, the only remaining issue is
whether the jury were instructed that knowledge was a required
element for a conviction of possession of ammunition. Here, the
judge's instructions on the charge of possession of ammunition
did not specify knowledge as an element.17 However, at the
16As in the present case, the judge and parties in Woods
did not have the benefit of the decision in Brown, 479 Mass. at
601, at the time of trial. Woods, 94 Mass. App. Ct. at 768
n.10. See note 7, supra.
19
outset of his instructions as to all of the possessory offenses
(possession of ammunition, possession of a firearm, possession
of a loaded firearm), the judge provided a definition of
"possession," which specified that "[a] person who knowingly has
direct, physical control over an object at a given time is then
in actual possession of it. . . . For example, I have this pen
in my hand; I know it's a pen; I have control over it . . . ."
The plain language of this instruction included the requirement
of knowledge, and, in the context of the possession of
ammunition charge, imposed the requirement that the defendant
"knowingly ha[d] direct, physical control over [the
ammunition]." Thus, the judge's instruction that possession
included the element of knowledge required the jury to find that
the defendant "knowingly" possessed ammunition in order to
convict him of that charge. A jury finding that the defendant
knowingly possessed the ammunition within the firearm
necessitated a finding that he knew that the firearm was
loaded.18 See Woods, 94 Mass. App. Ct. at 768. Cf. Commonwealth
17The defendant did not object to the judge's instructions
on possession of ammunition at trial, and does not claim any
deficiency in those instructions on appeal. After trial, the
conviction of possession of ammunition was vacated as
duplicative of the conviction of possession of a loaded firearm.
18In his instructions on the charge of possession of a
loaded firearm, the judge instructed that the offense required,
inter alia, "proof that the firearm was loaded with ammunition."
20
v. Britt, 465 Mass. 87, 98-99 (2013) (omission of instruction on
knowledge of dangerous weapon did not create substantial
likelihood of miscarriage of justice where jury, by convicting
defendant of other counts, necessarily found that she herself
possessed a firearm).
For all of the foregoing reasons, I respectfully dissent.