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Attorney(S)

Patricia A. O'Neill for the defendant. Robert S. Sinsheimer, Assistant District Attorney, for the Commonwealth.

Judges

CUTTER, J.

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Smart Summary

Summary of Opinion: Commonwealth v. Weston Bean

Factual and Procedural Background

On August 12, 1980, at about 11:00 P.M., Weston Bean was a passenger in an automobile driven by John Vichino parked near a bank's night deposit box. Officer William Shaw stopped the vehicle; two other officers arrived. Officers observed Bean move his arm across the bench front seat toward Vichino, and an officer saw Vichino make an arm movement toward Bean. An officer looking into the front seat observed a plastic container or vial approximately five to six inches from Bean (another officer testified it was wedged in the bench-seat crack). The container later was found to contain nine rounds of .22 caliber ammunition. Bean provided a false name when asked for identification and later admitted the falsehood. The vehicle search revealed a stocking cap, a stick like a baseball bat on the passenger side front seat, and two rifles (.35 and .22 caliber) in the trunk. Upon discovery of the rifles, Bean stated, "those guns are not mine." Bean testified that Vichino had passed him the container while retrieving registration and that he pushed it away after seeing what it was; he denied having the ammunition on his person and said he first saw the container when Vichino passed it to him.

Bean was charged in District Court with possession of ammunition in violation of G.L. c. 269, § 10(h). A six-person jury found him guilty of the ammunition charge. The trial judge directed a verdict of not guilty on the rifles charge, concluding the evidence did not establish Bean's control of the trunk. The judge refused to direct a verdict of not guilty on the ammunition charge. The matter was appealed to the Appeals Court of Massachusetts; the judgment below was affirmed.

Legal Issues Presented

Whether the evidence was sufficient to permit a jury to find that Bean had knowledge and control (possession, actual or constructive) of the container of ammunition found on the vehicle's front seat.
Whether the trial judge's instructions to the jury, particularly statements about the jury's role in determining credibility, impermissibly shifted the burden of proof to the defendant or otherwise created a risk of miscarriage of justice.

Arguments of the Parties

Defendant's Arguments

Bean testified that Vichino gave him the container while Vichino was getting his registration and that Bean pushed the container away when he saw what it contained; Bean denied possessing the ammunition on his person.
Bean contended that the trial judge's charge—stating the jury's "sole, total function" was finding the facts and "when you find the facts here, all you have to find is who is telling the truth"—tended to shift the burden of proof to him.

Commonwealth's Arguments

The opinion does not contain a detailed account of the Commonwealth's specific oral or written arguments. The court evaluated the evidence in its aspect most favorable to the Commonwealth in assessing sufficiency.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Morse, 12 Mass. App. Ct. 426, 427-428 (1981).	The opinion states "Possession (of the ammunition) is the gravamen of the charge."	Referenced to support the characterization of possession as the gravamen of the offense being tried.
Commonwealth v. Albano, 373 Mass. 132, 134-135, 136 (1977).	The opinion indicates the case governs circumstances permitting inference of knowledge and intent to control contraband.	Applied as the governing authority for inferring knowledge of and intent to control the ammunition from surrounding circumstances.
Commonwealth v. Seay, 376 Mass. 735, 737-738 (1978).	The opinion cites Seay in connection with the analysis of possession/constructive possession.	Used as supporting authority for the court's possession analysis.
Commonwealth v. Harvard, 356 Mass. 452, 458 (1969).	Cited by the opinion in the context of possession jurisprudence.	Included among authorities validating the inferences supporting possession.
Commonwealth v. Rider, 8 Mass. App. Ct. 775, 777-778 (1979); Commonwealth v. Hill, ante 93 (1983).	These cases are cited for comparison with the present possession analysis.	Noted as comparative authority to distinguish or contrast factual or legal points.
Commonwealth v. Boone, 356 Mass. 85, 87 (1969); Commonwealth v. Bennefield, 373 Mass. 452, 453 (1977).	Cited for comparison in the court's discussion of possession principles.	Listed as comparative authority in the court's analysis.
Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974).	Quoted in the opinion: "Possession need not be exclusive but may be joint, and . . . may be proved by circumstantial evidence."	Relied upon to support the proposition that possession may be joint and proven by circumstantial evidence, allowing inference of possession by Bean alone or together with Vichino.
Commonwealth v. Deagle, 10 Mass. App. 563, 567-568 (1980).	Cited by the opinion as a comparative reference ("Cf.").	Referenced for comparison in the context of possession proof.
Commonwealth v. Gallison, 384 Mass. 184, 192 (1981).	Cited for the standard of reviewing unobjected-to jury instructions: consider whether the charge as a whole creates a basis for fearing a miscarriage of justice.	Applied to limit review to whether the charge, considered as a whole, could have produced a miscarriage of justice when no objections were made at trial.
Commonwealth v. Ramey, 368 Mass. 109, 113-115 (1975).	Cited in conjunction with Gallison regarding review standards for jury instructions where no objections were made.	Used as supporting authority for the applicable standard of appellate review of the jury charge.
Commonwealth v. Webster, 5 Cush. 295, 320 (1850).	The opinion states the judge instructed on reasonable doubt "in much the terms employed" in Webster.	Referenced as the model or template for the reasonable doubt instruction given to the jury.
Commonwealth v. Williams, 378 Mass. 217, 235 (1979); Commonwealth v. Tavares, 385 Mass. 140, 147-148 (1982).	Both cases are cited in the context of acceptable reasonable doubt instruction language.	Used to support that the trial judge's reasonable doubt instruction conformed to established formulations.
Commonwealth v. Leaster, 362 Mass. 407, 416-417 (1972).	Cited for the proposition that there could be "no reasonable likelihood that the charge . . . as a whole could have led the jury to ignore the reasonable doubt test."	Applied to conclude that, viewed as a whole, the charge did not create a reasonable likelihood the jury ignored the reasonable doubt standard.
Commonwealth v. Berth, 385 Mass. 784, 785-788 (1982).	Cited for comparison; noted to relate largely to alibi testimony and thus is not directly involved here.	Listed as comparative authority to distinguish the present case from situations addressed in Berth.

Court's Reasoning and Analysis

On sufficiency of the evidence, the court viewed the conflicting evidence in the light most favorable to the Commonwealth and identified a set of circumstances from which a jury reasonably could infer that Bean possessed the container of ammunition. The court enumerated specific circumstances supporting that inference:

The vehicle had moved away from a bank night deposit box upon the police cruiser’s approach.
Officers observed Bean's movement pushing the container toward Vichino.
Evidence suggested Bean may have known of the rifles in the trunk even if he might not have seen them when opened.
The ammunition found near Bean matched one of the rifles discovered in the trunk (.22 caliber).
Bean gave a false name and, after being confronted, offered only a general explanation that he was avoiding "getting a hassle."
The events occurred late at night in a bank parking lot in a vehicle containing two passengers who might have acted in concert.
A stick like a baseball bat was present near Bean's seat.

The court explained that possession is the gravamen of the charge and found the evidence of actual possession supported by circumstances permitting an inference of constructive possession, relying on prior cases (including Albano and Dinnall). The court emphasized that possession may be joint and may be proven by circumstantial evidence, and that the circumstances could tip the scale in favor of finding Bean had knowledge of and intent to control the ammunition either alone or jointly with Vichino.

Regarding the jury charge, the court noted Bean made no contemporaneous objections, so appellate review was limited to whether, considering the charge as a whole, there was a reasonable basis to fear a miscarriage of justice. Bean argued the judge's statement that the jury's "sole, total function" was to find the facts and "who is telling the truth" tended to shift the burden of proof. The court rejected this contention as unpersuasive, noting the judge immediately and clearly instructed that the Commonwealth bore the responsibility to establish guilt beyond a reasonable doubt and that the defendant had no burden to prove innocence. The court also observed that the judge's instruction on reasonable doubt followed long-established formulations (including language similar to Webster) and concluded there was no reasonable likelihood the charge, read as a whole, caused the jury to ignore the reasonable doubt standard.

Holding and Implications

Holding: Judgment affirmed.

Implications:

The conviction for possession of ammunition under G.L. c. 269, § 10(h) was affirmed based on the sufficiency of the evidence to permit an inference of knowledge and control (actual or constructive) by Bean.
The trial court's directed verdict of not guilty on the rifles charge (based on lack of proof of control of the trunk) was noted in the factual background and not disturbed by the appellate court.
The appellate court found no reversible error in the jury instructions; it concluded there was no reasonable likelihood that the charge, considered as a whole, shifted the burden of proof or caused the jury to ignore the reasonable doubt requirement.
No broader, novel legal rule or new precedent was announced; the court applied and relied upon existing Massachusetts authority concerning possession, constructive and joint possession, circumstantial proof, and standards for reviewing unobjected-to jury charges.

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COMMONWEALTH vs. WESTON BEAN.

Firearms. Practice, Criminal, Instructions to jury, Burden of proof.

At the trial of a complaint charging possession of ammunition in violation of G.L.c. 269, § 10 ( h), evidence of the circumstances in which police discovered the defendant in the passenger seat of an automobile, with a container holding nine rounds of .22 caliber ammunition on the seat near him, was sufficient to warrant a finding that the defendant had knowledge and control of the ammunition. [169-171]

CUTTER, J.

Bean on August 12, 1980, about 11:00 P.M. was a passenger in an automobile, operated by John Vichino, standing in a parking lot next to the night deposit box of Plymouth Home National Bank. Officer William Shaw of the East Bridgewater police, in a marked police cruiser, saw Vichino's automobile as it started to move and stopped it. A second police cruiser, driven by Officer Good with Officer Fortier as passenger, soon arrived. They each saw Bean move his arm across the bench-type front seat toward Vichino, and Officer Fortier saw Vichino make an arm movement toward Bean. The officers could see Bean's arm down to the elbow but not his lower arm. Officer Fortier looked into the front seat of the stopped vehicle and saw a plastic container or vial about five to six inches from Bean. Another officer testified that the container was wedged into the crack of the bench seat. Later the container was found to contain nine rounds of .22 caliber ammunition. Bean, when asked for identification, gave a false name.

Bean was requested to step out of the automobile and, after some discussion, admitted that he had given a false name. A search of the automobile revealed a stocking cap and a stick like a baseball bat on the passenger side of the vehicle's front seat and a visored cap on the dashboard in front of the driver's seat. Officer Shaw then searched the vehicle's trunk and found there two rifles, one .35 caliber and one .22 caliber. On seeing the rifles, Officer Shaw said, "What have we here?" Bean at once replied, "[T]hose guns are not mine." There was conflicting testimony concerning whether Bean could have seen the rifles in the trunk before he spoke.

Bean testified that Vichino had given him the container of ammunition when Vichino was getting his registration from the glove compartment, and that he (Bean) pushed it away when he saw what it was. He denied having the ammunition on his person that night and claimed that he first saw the container when Vichino passed it to him as Vichino left the vehicle to give his registration to the officers. Bean did not know where the container was when he himself left the vehicle, but "knew it was on the seat somewhere."

Bean was tried in a District Court on a complaint charging possession of ammunition without complying with the requirements relating to firearm identification, G.L.c. 269, § 10( h). He was found guilty by a jury of six persons. The trial judge directed a finding of not guilty on a complaint charging Bean with possession of the rifles discovered in the trunk of the vehicle on the ground that the evidence did not establish that Bean had control of the trunk. He refused to enter a finding of not guilty on the charge of possession of the ammunition.

1. On the conflicting evidence, in its aspect most favorable to the Commonwealth, the jury reasonably could infer that Bean had possessed the container of ammunition, when viewed on the basis of its presence on the bench seat near where he had been sitting together with other circumstances attendant upon its discovery, e.g., (a) the movement of Vichino's vehicle from near the bank's night deposit box upon the approach of the police cruiser; (b) the observations by the officers of Bean's efforts to push the container toward Vichino; (c) evidence which (if believed) tended to show that Bean knew of the presence of rifles in the vehicle's trunk even though he could have been found not to have been in a position from which he could see into the trunk when it was opened; (d) the fact that the ammunition near him fitted one of those rifles; (e) the circumstance that, when questioned, he gave a false name and, when that falsehood was detected, gave only the general and somewhat inarticulate explanation that he was trying to avoid "getting a hassle"; (f) that the events took place in a vehicle (containing two passengers who may have been acting to some extent in concert) late at night in the parking lot of a bank not open for business; and (g) the presence of a stick like a baseball bat near Bean's seat. Possession (of the ammunition) is the gravamen of the charge. Commonwealth v. Morse, 12 Mass. App. Ct. 426, 427-428 (1981). The evidence tending to show that Bean had actual possession is supported by the circumstances permitting an inference of constructive possession because of his knowledge of the location of the contraband bullets and of one rifle which they fitted. The case seems to us to be governed by Commonwealth v. Albano, 373 Mass. 132, 134-135, 136 (1977). See Commonwealth v. Seay, 376 Mass. 735, 737-738 (1978). See also Commonwealth v. Harvard, 356 Mass. 452, 458 (1969). Compare Commonwealth v. Rider, 8 Mass. App. Ct. 775, 777-778 (1979); Commonwealth v. Hill, ante 93 (1983). Compare also Commonwealth v. Boone, 356 Mass. 85, 87 (1969); Commonwealth v. Bennefield, 373 Mass. 452, 453 (1977). As in the Albano case, at 134, the circumstances provided sufficient basis for inferring that Bean had knowledge of and intent to control the ammunition to tip the scale in favor of sufficiency of the evidence as a basis of possession by Bean alone or together with Vichino. Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974, "Possession need not be exclusive but may be joint, and . . . may be proved by circumstantial evidence"). Cf. Commonwealth v. Deagle, 10 Mass. App. 563, 567-568 (1980).

2. No objections were made to the trial judge's charge. Thus we need consider the points concerning the charge only to ascertain whether, considering the charge as a whole, there was any basis for fearing a miscarriage of justice. Commonwealth v. Gallison, 384 Mass. 184, 192 (1981). See Commonwealth v. Ramey, 368 Mass. 109, 113-115 (1975). Bean contends that the trial judge improperly told the jury (in charging on credibility) that their "sole, total function" and responsibility was "finding the facts . . . [a]nd when you find the facts here, all you have to find is who is telling the truth." We do not find persuasive Bean's contention that this instruction tended to shift the burden of proof to him. In any event, the judge almost immediately instructed that the Commonwealth "has the responsibility of establishing beyond a reasonable doubt the guilt of the defendant" and that "[t]here is no duty on . . . the defendant to prove or . . . otherwise [to] establish his innocence." The judge also instructed on reasonable doubt in much the terms employed in Commonwealth v. Webster, 5 Cush. 295, 320 (1850). See Commonwealth v. Williams, 378 Mass. 217, 235 (1979); Commonwealth v. Tavares, 385 Mass. 140, 147-148 (1982). There could be "no reasonable likelihood that the charge . . . as a whole could have led the jury to ignore the reasonable doubt test." Commonwealth v. Leaster, 362 Mass. 407, 416-417 (1972). Compare Commonwealth v. Berth, 385 Mass. 784, 785-788 (1982), relating largely to alibi testimony not here involved.

Judgment affirmed.

COMMONWEALTH v. BEAN