NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Gouse, 461 Mass. 787 (2012)

CONTRIBUTING EDITOR: BROCK SHRIVER I. Procedural History

A jury convicted the defendant, Damian Gouse, of assault and battery in violation of G.L. c. 265, 13A for striking the victim with his fists; assault and battery by means of a dangerous weapon in violation of G.L. c. 265, 15A(b) for striking the victim with a shod foot; and for the unlawful possession of a firearm outside of his residence or place of business in violation of G.L. c. 269, 10G(a).1 Prior to trial, the defendant moved to suppress the firearm and, after a two-day hearing, his motion was denied. In a subsequent proceeding, the defendant was convicted of unlawful possession of a firearm having been previously convicted of a violent crime, in violation of G.L. c. 269, 10G(a).2 The defendant appealed and the case was transferred to the Supreme Judicial Court of Massachusetts on its own motion.3 II. Facts On the afternoon of January 19, 2008, the defendant attacked the victim in a public intersection in Fall River.4 Police arrived on scene shortly after the altercation and the victim reported that the defendant approached her in his vehicle.5 The victim refused the defendants requests for her to get inside the vehicle, and ran after the defendant exited the vehicle.6 After chasing the victim, the defendant caught up with her and punched her in the face.7 The victim struggled free and another chase ensued.8 The
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Commonwealth v. Gouse, 461 Mass. 787, 788 (2012). Id. Id. Id. at 789. Id. at 790. Id. Gouse, 461 Mass. at 790.

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defendant again caught the victim and knocked her to the ground, this time kicking her with his shod foot.9 The officer photographed the injuries which showed a bump above the victims eye and blood flowing from her eye, nose and mouth.10 Two individuals told the officers on the scene that the defendant was armed.11 One of these individuals, identified as David Silvia, witnessed the defendant kicking the victim and was told by the defendant that he better leave or the defendant would shoot him.12 The victims father also told the police that the defendant was usually armed.13 Police in plain clothes drove to an apartment complex where the defendant was believed to be staying.14 They found the vehicle that matched the one the defendant was driving during the assault of the victim.15 They observed two females exit the apartment complex and approach the vehicle where one of them opened the trunk.16 A few moments later the defendant emerged from the complex and carrying a black bag, which he placed beside the opened trunk before returning inside the complex.17 One of the females placed the bag in the trunk; then the defendant and the two females entered the vehicle and drove away.18 The police pulled them over soon thereafter.19 The occupants were quickly removed from the vehicle and handcuffed.20 Police impounded he vehicle and conducted an inventory search on scene. No weapons were found on the defendants person, but a trunk search revealed the black bag.21 The police searched the bag and found a .22 caliber, sawed-off rifle, ammunition, and a spent casing.22 III. Issues Presented 1. Whether firearm should be suppressed because the police did not have probable cause to believe a firearm was in the vehicle or grounds to

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Id. Id. 10 Id. at 791. 11 Id. 12 Id. 13 Gouse, 461 Mass. at 791. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Grouse, 491 Mass. at 791. 20 Id. 21 Id. at 791-792. 22 Id. at 792.

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Commonwealth v. Gouse

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conduct an inventory search.23 2. Whether evidence was insufficient to prove that the defendant constructively possessed the firearm.24 3. Whether the judge improperly allowed the jury to view a photograph of the victims facial injuries during the trial.25 4. Whether when issuing the jury instructions, the judge failed to clarify that the charge of assault and battery and assault and battery with a deadly weapon must be supported by separate and distinct acts, which may have confused the jury into thinking both charges stemmed from a single striking.26 Whether the conviction of being a subsequent offender infringed on the defendants Second Amendment rights and his State and Federal due process guarantees.27 IV. Holdings and Reasoning The search of the vehicle was justified by the automobile exception to the warrant requirement.28 Probable cause existed because three individuals told police that the defendant was likely to be armed.29 One witness told police the defendant threatened to shoot him.30 When the police did not find weapons in the vehicle it was appropriate to conclude that they may be in the bag in the trunk of the vehicle.31 The test for whether sufficient evidence of possession is present is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.32 In this case, the evidence warranted inferences that the defendant knew the bag contained a firearm and that he constructively possessed it.33 Determining whether the prejudicial effect of a piece of evidence outweighs its value is within the discretion of the trial judge.34 There is nothing to indicate that the trial judge abused this discretion in allowing
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Id. Id. at 794. 25 Gouse, 491 Mass. at 796. 26 Id. at 798-799. 27 Id. at 799. 28 Id. at 792 citing Commonwealth v. Bostock, 450 Mass. 616, 624 (2008). 29 Id. at 792-793. 30 Id. at 793. 31 Gouse, 461 Mass. at 792 (citing Commonwealth v. Cast, 407 Mass. 891 (1990) (probable cause to search extends to all containers within the vehicle)).
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Id. at 794 quoting Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008). Id. at 795. Id. at 797 quoting Commonwealth v. Pena, 455 Mass. 1, 12 (2009).

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the jury to view the photograph.35 The court only reviewed this claim to determine if a miscarriage of justice occurred because the defendant failed to raise this issue in the court below.36 It found that although the judge failed to mention the exact words, a separate and distinct act when issuing the instructions for the separate offenses, he explained each charge separately in relation to the alleged offense and did not mingle the two in a way that would have mislead the jury.37 The defendants Second Amendment argument failed because he presumed that recent Supreme Court decisions in McDonald v. Chicago, U.S. and District of Columbia v. Heller extend farther than they do.38 The right to bear arms is only extended by these cases to persons homes for self-defense, not anywhere they please.39 The defendants argument that his procedural rights were violated because he should not bear the burden of proof that he has a license to carry a gun also failed.40 Licensure is an affirmative defense to be raised by the defendant.41 If the defendant can produce a license then the burden shifts to the prosecution to prove it is invalid in the present case.42

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See id. Id. at 799. Gouse, 461 Mass. at 799. Id. at 800-801. Id. at 801. Id. at 804. Id. Id.