Commonwealth v. McIntosh, October 8, 2010
78 Mass. App. Ct. 37
Sufficiency of the Evidence, Ineffective Assistance of Counsel
The defendant was convicted on three indictments: 1) possession of a firearm, second and subsequent offense, 2) possession of ammunition, and 3) possession of a loaded firearm. On appeal, the defendant is claiming that the judge committed a reversible error by denying the defendant’s motion for a required finding of not guilty on the three indictments because the evidence was insufficient to convict him. The defendant also claimed that his trial counsel was constitutionally ineffective. The Court agreed that the defendant’s trial counsel was constitutionally ineffective and reversed the judgments, set aside the verdicts, and remanded the case to Superior Court for a new trial.
Facts
Two Boston Police Officers were patrolling an area in Mattapan when they noticed the defendant and another man standing on the top step of a building. The defendant made eye contact with one of the officers and opened the outer door, but could not enter the building. The officers parked their cruisers and spoke with the men. Both men appeared nervous and apprehensive to the police officers. When asked, the defendant stated that he did not live at the house, but that he was waiting for someone. The defendant handed the officer an identification card at the officer’s request. While the officer was copying the information from the identification card, the defendant put a full-fingered baseball batting glove on his right hand. The defendant went to the front door of the building and opened it; the officer reminded the defendant he had his identification card, which the defendant reached out to take back.
At that point, the owner of the building opened the door of the first floor apartment and inquired about what was happening . The defendant asked, “Is Seyon there?” The owner responded that she did not know the defendant, but no one was there. The defendant responded, “Well, Seyon has my thing, and I need to get it.” The defendant then pushed the owner to the side and entered the apartment. The owner followed the defendant to a bedroom down the hall where she saw the defendant bending by the middle part of the bed, but could not see what he was doing. The defendant closed the door as the owner retrieved the officer. The officer attempted to open the door, which was being held shut from the inside. When he was able to open the door, the officer found the defendant behind the door. The officer pat-frisked the defendant and did not find any weapons on him. The officer brought the defendant outside and ordered him to wait there.
Once the occupant of the room arrived, the Officer instructed the occupant to lift the mattress of the bed where the defendant had been bending. A loaded handgun was found under the mattress. The occupant stated that he had looked under the mattress the day before and did not see a gun at that time.
Sufficiency of the Evidence
The Appeals Court rejected the defendant’s argument that the lower court submitted reversible error when the judge denied the motion for a required finding of not guilty. The Court reviewed the denial of the motion to determine if the Commonwealth had “met its burden of proving the essential elements of the crimes charged beyond a reasonable doubt.” Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 40 (2010). The Court found that the evidence presented at trial supported the inference that the defendant placed the handgun under the mattress when he entered the building. The Court noted various pieces of testimony as support for the conviction - the defendant appearing nervous and apprehensive, the defendant closing the door of the bedroom and attempting to prevent the officer from entering the room, the defendant bending near the part of the mattress where the handgun was found, and the firearm not being under the mattress the previous day. For the same reasons, the Court also found the evidence was sufficient as to constructive possession.
Ineffective Assistance of Counsel
The Court agreed with the defendant that his counsel was constitutionally ineffective due to statements made during the defense’s closing argument that negated the theories the defense asserted. The Court considered whether the defense counsel’s performance was measurably lower than “that which might be expected from an ordinary fallible lawyer”, which deprived the defendant of a “substantial ground of defense.” Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 42 (2010), quoting Commonwealth v. McCrae, 54 Mass. App. Ct. 27, 29 (2002). The defense theory at trial was that the defendant neither possessed the gun nor placed the gun under the mattress. The defense theorized that someone else, such as the occupant of the room, placed the gun under the mattress. During his closing statement, the defense counsel misstated the evidence about what occurred when the defendant was in the bedroom. The owner of the building testified that she could not see what the defendant was doing by the bed; defense counsel stated that the owner saw the defendant put something under the bed. The prosecutor compounded the prejudicial effect of the misstatement by stating that the owner observed the defendant hiding the gun. The error negated the theory offered by the defense that the defendant never possessed the gun and did not place it under the mattress.
Despite the judge’s instructions about the purpose of counsels’ closing arguments, the Court did not find that this cured the error caused by the misstatements of the evidence.
The judgments were reversed, the verdicts set aside, and the case was remanded to the Superior Court for a new trial.
- Prepared by JM
