MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Dwayne Griffith, appeals from his convictions, after a Superior Court jury trial, of unlawfully carrying a firearm, G. L. c. 269, § 10 (a), and unlawfully carrying a loaded firearm, G. L. c. 269, § 10 (n). The defendant pleaded guilty to an armed career criminal sentencing enhancement, G. L. c. 269, § 10G (a).
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Concluding that the error in the supplemental instruction did not create a substantial risk of a miscarriage of justice in light of the strength of the Commonwealths case and that the defendants constitutional challenges lack merit, we affirm.
1. Supplemental instruction. “The trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly, has discretion over the appropriate response to a jury question.” Commonwealth v. Perez, 100 Mass. App. Ct. 7, 18 (2021), quoting Commonwealth v. Van Bell, 455 Mass. 408, 420 (2009). Accord Commonwealth v. Watson, 487 Mass. 156, 169 (2021). “We evaluate the adequacy of a supplemental instruction in the context of the entire charge.” Commonwealth v. West, 487 Mass. 794, 804 (2021). “Where, as here, the defendant failed to object to the instruction at trial, we review the instruction to determine whether any error in the instruction created a substantial risk of a miscarriage of justice.” Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 241-242 (2018), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Here, the police officer in charge of processing evidence determined that there were no usable fingerprints on the firearm. When asked on cross-examination whether the firearm was submitted for deoxyribonucleic acid (DNA) testing, he testified that “it was not submitted for DNA testing because this is considered a closed case. Its an arrest. Arrests are considered closed cases.” On redirect examination, the officer clarified that an arrest does not necessarily preclude further investigation but, if “its not assigned to a detective, no one looks at the case, no one looks at the evidence.” Generally, when a defendant is arrested, no detective is assigned.
In closing argument, defense counsel argued that a DNA test would have provided important evidence and that the failure to order one showed that the police wrongly treated “this [crime] like a minor affair.” Counsel also said, “[T]heres no reason they ․ couldnt have tested it for DNA, they didnt. Why didnt they do it? Because nobody asked.”
During the deliberations, the jury asked, “Did the defendant have the right (at any point) to ask for a DNA test on the gun?” After consulting the attorneys and confirming their agreement, the judge gave the following supplemental instruction:
“I cannot answer that question except to say and to remind you that you are confined to the evidence that was presented during the course of this trial. You have to limit your analysis of this case, your deliberations, to that evidence and that evidence alone. And you cannot speculate about evidence that was not presented.”
The Supreme Judicial Court has “held that, where a judge generally instructed a jury to find the facts solely from the evidence admitted ․ and not from suspicion or conjecture, and did not do so in direct response to a Bowden[
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] argument made by the defendant, the judges jury instruction did not improperly undercut or negate the defendants Bowden defense.” Commonwealth v. Grier, 490 Mass. 455, 474 (2022).
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The Supreme Judicial Court has warned, however, that “a facially proper jury instruction that the jury should decide the case based on the evidence rather than guesswork or conjecture may reasonably be understood by the jury to negate or undercut a defendants proper Bowden argument, such as ․ where the judge furnishes this instruction in response to a question from the jury about a Bowden issue.” Commonwealth v. Alvarez, 480 Mass. 299, 317 (2018). Such an instruction in response to a jury question “may ․ be[ ] construed by the jury as requiring them to reject the adverse inference suggested by defense counsel.” Commonwealth v. Smith, 49 Mass. App. Ct. 827, 832 (2000).
Here, in response to a jury question specifically concerning defense counsels Bowden argument, the judge instructed the jury not to “speculate about evidence that was not presented.” A better response would have been to instruct the jury that the defendant had no burden to request testing or present evidence or to include a Bowden instruction “to avoid the risk that the jury may interpret this sentence [about not engaging in guesswork] as undercutting the defendants Bowden argument.” Alvarez, 480 Mass. at 318. Omitting one of those qualifiers risked undercutting the defendants Bowden argument.
We turn, therefore, to the question whether the error created a substantial risk of a miscarriage of justice. “A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Curran, 488 Mass. 792, 794 (2021), quoting Commonwealth v. Valentin, 470 Mass. 186, 189 (2014). Although the evidence was largely circumstantial, we discern no substantial risk of a miscarriage of justice in light of the strength of the Commonwealths case.
The defendant began the chase “running with one hand clenching to his waistband.” He then climbed over a fence using only one hand and continued running with his hand clenched to his waistband. The defendant then “stumbled.” After that, the defendant “was running with ․ both hands, like he was a track star.”
At the very spot where the defendant started running with two hands, the police discovered the firearm in a bush. The firearm had “no rust, dust, pollen” and “hadnt been weathered,” evidencing that it had been deposited recently. The firearm was on top of leaves and dirt and surrounded by branches but had no leaves or dirt on top of it. The defendant also discarded his t-shirt during the run, which was recovered in his flight path.
This case is dissimilar to Commonwealth v. Remedor, 52 Mass. App. Ct. 694 (2001). There, the case against codefendant Paul was far from strong, as he was an unexpected suspect who was observed for only one minute before the police lost sight of him. See id. at 697-698, 701. In light of the “strong reasonable doubt raised by the defendants identification defense,” we found a substantial risk of a miscarriage of justice. Id. at 701. Here, where there was strong evidence that the defendant discarded the firearm during his flight, we discern no substantial risk of a miscarriage of justice caused by the judges incomplete supplemental instruction. See Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012).
2. Licensure as an affirmative defense. As the defendant acknowledges, it is well-settled that lack of a license to carry a firearm is an affirmative defense, and the Supreme Judicial Court has held that this state of affairs is consistent with the Second Amendment to the United States Constitution. See, e.g., Commonwealth v. Harris, 481 Mass. 767, 772 (2019).
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This has been the law since at least 1844. See St. 1844, c. 102; Commonwealth v. Belou, 115 Mass. 139, 140 (1874). Nothing in the Supreme Courts opinion in New York State Rifle & Pistol Assn v. Bruen, 142 S. Ct. 2111 (2022), suggests that the Second Amendment poses any challenges for State assignment of burdens of production. Accordingly, there was no error in the judges handling of the affirmative defense of licensure.
3. Constitutionality of the armed career criminal statute. The defendant pleaded guilty to the armed career criminal enhancement, preserving only his right to challenge the underlying firearm possession conviction. At the plea hearing, defense counsel specifically stated that the defendant “would be waiving his appellate rights to challenge anything on the bifurcated enhancements,” and the defendant personally expressed his understanding that he was “giving up ․ any appeal that would relate to this enhancement.” Accordingly, the defendant has waived his right to challenge the constitutionality of the armed career criminal statute. See Commonwealth v. Pike, 53 Mass. App. Ct. 757, 763 (2002). Cf. Class v. United States, 138 S. Ct. 798, 802-803 (2018) (guilty plea did not waive right to challenge constitutionality of statute where plea agreement expressly waived “right to appeal a sentence” but “said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional”).
Assuming without deciding that the defendants waiver of his appellate rights did not extend to a challenge based solely on the Supreme Courts subsequent opinion in Bruen, supra, nothing in that opinion casts any doubt on the constitutionality of the armed career criminal statute. To the contrary, the Supreme Court approved of the licensing regimes of forty-three States that “require applicants to undergo a background check ․ to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens.” 142 S. Ct. at 2138 n.9, quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008). Three Justices joined concurrences specifically disclaiming any change to the prohibition on firearm possession by felons. See Bruen, supra at 2157 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm”); id. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.), quoting Heller, 554 U.S. at 626-627 (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”). Accordingly, the armed career criminal conviction is unaffected by Bruen.
Judgments affirmed.
FOOTNOTES
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. The Commonwealth charged the defendant as an armed career criminal with three prior violent crimes, G. L. c. 269, § 10G (c). The charge was reduced to one prior violent crime as part of a plea bargain. The defendant explicitly preserved his rights to appeal the earlier jury verdict.
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. Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
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. Nonetheless, at least where there is a live Bowden issue, the court has suggested that it “would ․ be[ ] prudent to omit such language from jury instructions to avoid any risk that the jury would interpret it as somehow negating the defendants Bowden argument.” Grier, 490 Mass. at 475, quoting Commonwealth v. Alvarez, 480 Mass. 299, 318 (2018).
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. There can be no doubt that the defendant lacked a license. He pleaded guilty to having a prior conviction of distributing heroin, which made him ineligible for a license to carry a firearm. See G. L. c. 140, § 131 (d) (i). See Harris, 481 Mass. at 773.