Commonwealth v. Hasan Taft.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-623

COMMONWEALTH

vs.

HASAN TAFT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of unlawfully

possessing a firearm, unlawfully possessing a loaded firearm,

and unlawfully possessing ammunition. On appeal, the defendant

argues that (1) the evidence was insufficient to support his

convictions, (2) the prosecutor made multiple errors in his

opening statement and closing argument, (3) prejudicial evidence

was improperly admitted, and (4) the Supreme Judicial Court's

precedent concerning the automobile exception to the warrant

requirement is violative of art. 14 of the Declaration of

Rights. The defendant also argues that, under the Supreme

Judicial Court's recent holding in Commonwealth v. Guardado, 491

Mass. 666, 690 (2023), the judge's instruction that the jury was

not to consider whether the Commonwealth had proven that the

defendant did not possess a license to carry a firearm was error
requiring reversal. We affirm the conviction of possession of a

firearm and reverse the convictions of possession of a loaded

firearm and possession of ammunition.

Background. On the evening of December 3, 2018, Boston

Police Officers James O'Loughlin and Kyle Holmes were on patrol

in Roxbury when they observed a gray Hyundai Sonata travelling

at a high rate of speed. The officers' query of the Sonata's

license plate revealed that it was registered to Sheleia Taft-

Scott. 1 The officers then radioed for backup and initiated a

traffic stop. The driver, subsequently identified as the

defendant, pulled the car over without incident.

O'Loughlin approached the defendant and requested his

identification. The defendant produced an identification card

to which O'Loughlin expressed skepticism because he recognized

the defendant from previous encounters. When O'Loughlin

confronted the defendant as to his real identity, the defendant

responded, "You know me, bro. It's Hasan." After determining

that neither the defendant nor the passenger (Kris Elder-Porter)

had a valid license to operate a motor vehicle, O'Loughlin and

1 O'Loughlin described a query as submitting the license plate
number "through a database which brings back registration
status, license status, warrants, any sort of information that
we need to gather for the motor vehicle." The query also
informed the officers that the Sonata may have been observed
being driven from the scene of a "shots fired" incident that
occurred two days prior; this information was not presented to
the jury.

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Holmes removed them from the Sonata. The defendant and Elder-

Porter then sat on the sidewalk while O'Loughlin and Holmes

began an inventorying of the Sonata's contents.

Soon thereafter, a detective called O'Loughlin to inform

him that there may be an object under the hood of the Sonata.

In response, O'Loughlin proceeded to the Sonata's driver's side

seat area and released the hood latch while Holmes approached

the vehicle's hood. Upon seeing the officers turn their focus

to the hood, the defendant jumped up and asked, "What are you

guys doing?" Other officers, who had arrived on the scene and

were watching the defendant, told him to sit back down; he

complied. However, once Holmes opened the hood, the defendant

jumped up and ran. He ran for only ten to fifteen feet before

the officers caught and detained him.

After raising the hood, O'Loughlin discovered a firearm

located in a void in the engine compartment. The officers

refrained from inspecting or removing the firearm, and instead

called district detectives to process the evidence. O'Loughlin

later learned from a detective that the firearm was loaded.

Soon after O'Loughlin discovered the firearm, another

officer demanded to see the defendant's license to carry. The

defendant replied that he did not have one.

Discussion. 1. Sufficiency of the evidence. In reviewing

a claim that the verdict was not supported by sufficient

3
evidence, the "question 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." Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979).

a. Unlawful possession of firearm. The defendant contends

that the evidence was insufficient to prove that he possessed

the firearm. 2 Since the firearm was not recovered from the

defendant's person, we must determine whether the evidence was

sufficient to support the Commonwealth's theory of constructive

possession. Constructive possession implies that the defendant

had "knowledge coupled with the ability and intention to

exercise dominion and control" (citation omitted). Commonwealth

v. Brzezinski, 405 Mass. 401, 409 (1989). "Presence alone

cannot show the requisite knowledge, power, or intention to

exercise control over [contraband], but presence, supplemented

by other incriminating evidence, 'will serve to tip the scale in

favor of sufficiency.'" Commonwealth v. Albano, 373 Mass. 132,

2 To convict a defendant for unlawful possession of a firearm
without a license, the Commonwealth must prove: (1) the
defendant possessed a firearm; (2) the firearm fit the legal
definition of a firearm; (3) the defendant knew that he
possessed a firearm or had a firearm under his control; and
(4) the defendant did not have a license to carry firearms.
G. L. c. 269, § 10 (a).

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134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108

(6th Cir. 1976). A defendant's "knowledge or intent is a matter

of fact, which is often not susceptible of proof by direct

evidence, so resort is frequently made to proof by inference

from all the facts and circumstances developed at the trial"

(citation omitted). Commonwealth v. Summers, 93 Mass. App. Ct.

260, 262 (2018).

Although the defendant concedes the evidence was sufficient

to establish the defendant's knowledge of and ability to control

the firearm, he argues that the evidence was insufficient to

establish the defendant's intent to exercise control over it and

that the Commonwealth failed to prove he was not licensed to

carry the firearm.

i. Intent to exercise control. The defendant cites the

Supreme Judicial Court's decision in Commonwealth v. Romero, 464

Mass. 648, 653 (2013), as controlling to his contention that the

evidence was insufficient to establish his intent to control the

firearm. In Romero, the Court found the evidence was

insufficient to establish that the defendant, the owner and

operator of the vehicle, constructively possessed a firearm

recovered from inside his vehicle, even when considering that

the evidence established that the defendant had knowledge of and

the ability to control the firearm. Id. In determining the

evidence to be insufficient to establish the defendant had the

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intent to exercise dominion and control, the Court emphasized

the lack of any particular link between the defendant and the

firearm, such as possession of a holster or ammunition. Id. at

656–657, citing Commonwealth v. Escalera, 462 Mass. 636, 649–650

(2012) (holster found in defendant's bedroom sized to fit two

handguns recovered from basement where drugs were located). The

Court's analysis of the defendant's intent was further

influenced by their examination of the defendant's passengers'

behavior, one of whom the evidence demonstrated was the owner

and actual possessor of the firearm immediately before the

police recovered it from the vehicle. Romero, supra at 649-650,

658-659. Additionally, the Court noted that the defendant's

unremarkable behavior in response to the firearm being recovered

-- as he made no effort to flee, conceal, or dispose of the gun

when the officer approached his vehicle -- was inconsistent with

having an intent to control it. Id. 657-658. The Court

concluded that the defendant's ownership and operation of a

vehicle, with knowledge of and proximity to the firearm was,

without more, insufficient to establish constructive possession.

Id. at 658-659.

Here, there is more. The circumstances establish a

reasonable inference that the defendant had a particular link to

the firearm through his retaining exclusive control and unique

access to the firearm, as well as his conduct attendant to the

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recovery of the firearm. See Summers, 93 Mass. App. Ct. at 265

("[t]he combination of the defendant's location in the Kia, his

adjacency to the backpack, the ruse he created, his flight from

the scene, and his statements upon his arrest provide[d]"

sufficient evidence of intent to control firearm); Commonwealth

v. Crapps, 84 Mass. App. Ct. 442, 445 (2013) ("a defendant's

proximity, access, and collateral conduct . . . permit[s] the

inference of an intention to exercise control over contraband or

forbidden weaponry in [a] vehicle"). This is not an instance of

a driver merely tolerating the presence of an armed acquaintance

in his vehicle, as presented in Romero. Romero, 464 Mass. at

658. Rather, the evidence demonstrates that the defendant made

the decision to assume control of a vehicle knowing that he had

access to a firearm secreted under the hood. See Summers, 93

Mass. App. Ct. at 263 (defendant's "ready access" to firearm was

factor in determining constructive possession); Crapps, 84 Mass.

App. Ct. at 445 (same); Commonwealth v. Sadberry, 44 Mass. App.

Ct. 934, 936 (1998) (same). Furthermore, there is no evidence

that the defendant's sole passenger, Elder-Porter, was either an

intervening owner or actual possessor of the firearm, and in

effect stood between the firearm and the defendant, thus

diminishing the inferential weight that the defendant had the

intent to exercise dominion and control over it. Summers, 93

Mass. App. Ct. at 263 (in light of circumstances showing

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defendant's principal role as possessor, passenger's knowledge

of and proximity to firearm was insufficient to establish

passenger's intent to exercise control); Commonwealth v.

Hamilton, 83 Mass. App. Ct. 406, 412–413 (2013) (absence of

evidence of another person having control over apartment or

contraband was factor in Court's conclusion that defendant

constructively possessed it). Contrast Romero, 464 Mass. at

649-650 (evidence established defendant's passenger owned and

had actual possession of firearm immediately prior to its

recovery from defendant's vehicle); Commonwealth v. Boria, 440

Mass. 416, 418–420 (2003) (defendant's proximity and knowledge

of contraband insufficient to establish constructive possession

when there was stronger evidence pointing to codefendant's

intent to control).

Moreover, the defendant provided a false identification

upon being stopped, grew visibly agitated when the officer

approached the latch to the vehicle's hood, and ran once the

police opened the hood. This conduct constitutes "further

consciousness of guilt evidence that tips the scale in favor of

sufficiency" concerning the defendant's intent to control the

firearm. See Summers, 93 Mass. App. Ct. at 265; Commonwealth v.

Whitlock, 39 Mass. App. Ct. 514, 519 (1995) (evidence of flight

from scene permits inference of unlawful possession). While the

defendant would like to confine the reach of his conduct to the

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required knowledge prong, it is for the jury to determine the

facts and any reasonable inferences drawn therefrom. See

Commonwealth v. Ortega, 441 Mass. 170, 174 (2004), quoting

Commonwealth v. Martino, 412 Mass. 267, 272 (1992)

(interpretation of officers' testimony regarding defendant's

conduct concerns "the weight and credibility of the evidence, 'a

matter wholly within the province of the jury'"). "To the

extent that conflicting inferences are possible from the

evidence, 'it is for the jury to determine where the truth

lies'" (citations omitted). Commonwealth v. Cotto, 69 Mass.

App. Ct. 589, 593 n.6 (2007). See Commonwealth v. Prater, 431

Mass. 86, 97 (2000), citing Commonwealth v. Booker, 386 Mass.

466, 470–471 (1982) ("When there are multiple possible

explanations for a defendant's flight, it is for the jury to

decide if the defendant's actions resulted from consciousness of

guilt or some other reason").

Finally, the defendant's connection to the vehicle,

established through his having been observed in the vehicle in

the past and that he shared a last name with the vehicle's

registered owner, further augments the reasonableness of an

inference that the defendant intended to exercise control over

the firearm. See, e.g., Crapps, 84 Mass. App. Ct. at 444.

Accordingly, we conclude the defendant's particular

connection to and control over the firearm, as well as his

9
collateral conduct in the presence of the police, permitted a

rational fact finder to reasonably find that the defendant had

the requisite intent to exercise dominion and control over the

firearm.

ii. Licensure requirement. The Supreme Judicial Court, in

Guardado, 491 Mass. at 690, quoting Commonwealth v. Munoz, 384

Mass. 503, 507 (1981), recently held that "to convict a

defendant of unlawful possession of a firearm, the Commonwealth

must prove 'as an element of the crime charged' that the

defendant in fact failed to comply with the licensure

requirements for possessing a firearm." This holding applied

prospectively and to cases, such as this one, that were either

active or pending on direct review as of the date of the

issuance of that decision (April 13, 2023). Id. at 694. Here,

the judge instructed the jury as follows as to the unlawful

possession of a firearm charge: "There was no evidence in this

case that the defendant has a license to carry a firearm . . .

For that reason, the issue of license or exemption is not

relevant to your deliberations in this case and therefore you

should put it out of your mind." The defendant did not object

and now argues that the judge's failure to instruct the jury, as

required by Guardado, that the Commonwealth was required to

prove an absence of licensure requires a new trial.

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To begin with, the failure to object is of no consequence.

In Guardado, 491 Mass. at 686, the Court applied the

clairvoyance exception to excuse the failure to object to the

absence of a licensure jury instruction, explaining that "the

constitutional theory on which the defendant . . . relied was

not sufficiently developed at the time of trial . . . to afford

the defendant a genuine opportunity to raise his claim"

(quotation and citation omitted). See Commonwealth v. Bookman,

492 Mass. 396, 401 (2023) (applying clairvoyance exception in

same circumstances). Accordingly, as stated in Bookman, "[t]he

remaining question is whether the error was harmless beyond a

reasonable doubt" (citation omitted). Bookman, supra.

Here, Officer Conway testified that the defendant told him

that he did not have a license to carry. Immediately prior to

this testimony, the judge asked defense counsel whether the fact

that the defendant had a license was "in dispute in this case,"

and defense counsel responded, "No."

In light of this undisputed evidence that the defendant was

not licensed, we conclude the failure to instruct the jury on

the licensure requirement was harmless beyond a reasonable

doubt. Bookman, 492 Mass. at 401 (failure to give licensure

instruction was harmless beyond reasonable doubt where there was

police testimony that defendant did not have license, and where

11
"there [was] nothing in the record to suggest that the defendant

disputed this testimony").

b. Unlawful possession of a loaded firearm and unlawful

possession of ammunition. 3 Although we conclude that the

evidence was sufficient to establish that the defendant

possessed the firearm, there was insufficient evidence to allow

a rational trier of fact to find beyond a reasonable doubt that

the defendant knew that the firearm was loaded.

"[T]o sustain a conviction under G. L. c. 269, § 10 (n),

the Commonwealth must prove that a defendant knew the firearm

[they] possessed was loaded." Commonwealth v. Brown, 479 Mass.

600, 601–602 (2018). "Where there is no direct evidence that a

defendant knew a gun was loaded, a jury rationally may infer

that fact from circumstantial evidence." Commonwealth v.

Ashford, 486 Mass. 450, 454 (2020), citing Brown, 479 Mass. at

608. "While this inference need only be reasonable and

possible, not necessary and inescapable, it is equally true that

'no essential element of the crime may rest in surmise,

conjecture, or guesswork'" (citations omitted). Id. at 454-455.

3 The defendant argues, and the Commonwealth concedes, that the
conviction of possession of ammunition was duplicative of the
conviction of possession of a loaded firearm and therefore
violated the double jeopardy clause. See Commonwealth v.
Johnson, 461 Mass. 44, 54 (2011). However, because we conclude
that the evidence was insufficient to support either of the
convictions involving ammunition, we do not address this issue.

12
The Commonwealth's evidence that the defendant was aware of

the ammunition was limited to the presence of the firearm's

chamber indicator bar, a device which visibly protruded from the

top of the firearm's slide to indicate the firearm was loaded.

Thus, absent direct evidence the defendant saw this chamber bar

or otherwise knew the firearm was loaded, the Commonwealth's

theory of proof was dependent upon circumstantial evidence that

the defendant had the opportunity to view the indicator bar to

conclude the firearm was loaded. The evidence in this case was

insufficient to support an inference that the defendant had ever

handled or closely examined the firearm. When discovered by the

police, the firearm was wedged next to the vehicle's battery

such that only its butt end was visible. Notably the telltale

indicator bar on the slide was not apparent. This very limited

view of the firearm is established through the Commonwealth's

photographic exhibits of the firearm depicting it as it was

found under the hood. Furthermore, that the officer who found

the firearm testified he only learned "after the fact" from

investigating detectives that the firearm was loaded, suggests

that it was not evident to him that the gun was loaded when he

first discovered it.

The Commonwealth failed to present direct evidence and

sufficient circumstantial evidence to establish the defendant

ever handled or closely examined the firearm to permit a

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rational jury to find beyond a reasonable doubt that the

defendant knew the firearm was loaded. See Ashford, 486 Mass.

at 455; see also Brown, 479 Mass. at 608. Contrast Commonwealth

v. Resende, 94 Mass. App. Ct. 194, 200 (2018) (recovery of

firearm from defendant's waistband supported inference defendant

handled firearm and would have checked to see if it were

loaded). Evidence that the defendant fled, without more, is

insufficient to establish that he knew the firearm was loaded.

See, e.g., Ashford, 486 Mass. at 451 (evidence including

defendant's flight from police established that defendant

constructively possessed firearm but was insufficient to

establish his knowledge it was loaded).

Accordingly, we reverse the convictions for possession of a

loaded firearm and possession of ammunition.

2. Opening statement and closing argument. The defendant

alleges three errors in the prosecutor's opening statement and

closing argument. He asserts that the prosecutor misstated the

applicable law, incorrectly argued that the defense witness was

biased, and made a speculative and inflammatory claim when he

said that the firearm was positioned to enable the defendant to

"grab and go." As the defendant did not object to any of the

prosecutor's comments, we review for a substantial risk of

miscarriage of justice. Commonwealth v. Silvelo, 96 Mass. App.

Ct. 85, 91 (2019).

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In both his opening statement and closing argument, the

prosecutor stated that the Commonwealth was going to "prove two

things to [the jury]." The prosecutor then emphasized that he

would first show that the defendant "knew exactly what was

underneath the hood of that car," and that he would then show

that the object found under the hood "met the legal definition

of a firearm." The defendant argues that, in doing so, the

prosecutor misstated the elements of the crime by omitting that

it is also necessary to prove that the defendant had the ability

and intent to control the firearm. See Summers, 93 Mass. App.

Ct. at 262.

We need not decide whether the prosecutor's emphasis of

only two elements of the crime was error, because even if it

was, it did not create a substantial risk of miscarriage of

justice. The judge properly instructed the jury on the elements

of the crime immediately before the prosecutor's closing

argument, and we assume that the jury followed these

instructions. See Commonwealth v. Berry, 466 Mass. 763, 770

(2014). We further note that the prosecutor mentioned in his

closing that the evidence showed that the defendant "exercised

control" over or "intended to control" the firearm.

Additionally, defense counsel's closing argument referenced the

requirement that the Commonwealth prove the defendant's ability

or intent to exercise control. We are satisfied, under these

15
circumstances, that the judge's instructions mitigated any risk

of a substantial miscarriage of justice.

The defendant also asserts the prosecutor erred in arguing

that the passenger, who testified for the defense, was the "only

witness who actually has a dog in this fight" and by stating

that "[the defendant] is his boy, that's his buddy." 4 We discern

no error in the prosecutor's comments. Given the evidence of

their friendship, it was reasonable to infer that the passenger

was biased in favor of the defendant. The prosecutor's

comments, which were based on that inference, did not exceed the

bounds of fair argument. See Commonwealth v. Roy, 464 Mass.

818, 833 (2013).

The defendant next asserts that the prosecutor's reference

to the firearm being in a "grab and go situation" and his

statement that the defendant was "the only person that would be

in the position that could grab that gun" were improper and

misstated the evidence. We disagree. The phrase "grab and go

situation" was not inflammatory and did not stoke fears of

violence as the defendant suggests. Rather, in the context of

4 The defendant argues that the prosecutor's language here,
referring to the defendant as the witness's "boy," was racially
charged and therefore prejudiced the defendant. The
Commonwealth disagrees, arguing that the term "boy" is common
slang for a friend. Although we acknowledge that the
prosecutor's use of the term "boy" was better left unsaid, we
can discern no substantial risk of miscarriage of justice from
the comment.

16
the argument, the prosecutor appeared to be directing the jury's

attention to the fact that the firearm was situated under the

hood of the car with its handle sticking up, which allowed for

the inference that the defendant could have easily removed it.

Roy, 464 Mass. at 833. Additionally, the prosecutor did not

overstep the bounds of proper argument by emphasizing that the

defendant's position in the car, which placed him closest to the

hood latch, put him in the best position to open the hood and

retrieve the firearm. Id. ("prosecutor may argue forcefully

'for a conviction based on the evidence and on inferences that

may reasonably be drawn'" therefrom [citation omitted]). There

was no error.

3. Evidentiary claim. The defendant claims that Officer

O'Loughlin's testimony that he knew the defendant from "previous

encounters" and that he and the defendant "usually have pretty

calm conversations when we speak," was prejudicially suggestive

of prior bad act evidence. Because the defendant did not

preserve an objection 5 to either statement, we review first for

error, and if so, whether the error created a substantial risk

of a miscarriage of justice. Commonwealth v. Traylor, 472 Mass.

260, 267 (2015).

5 Although defense counsel initially objected to O'Loughlin's
testimony that O'Loughlin knew the defendant, counsel withdrew
his objection after a sidebar conference.

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We conclude that neither statement amounted to error.

O'Loughlin's familiarity with the defendant was relevant to the

nature of his initial interaction with and identification of the

defendant and was properly limited to avoid any reference to

prior bad acts. Furthermore, evidence that the defendant had

behaved calmly in previous encounters with O'Loughlin was

relevant to the jury's consideration of whether evidence of the

defendant's flight allowed for a consciousness-of-guilt

inference. 6 See, e.g., Summers, 93 Mass. App. Ct. at 261

(defendant's flight, after he greeted and conversed with officer

with whom he was familiar, demonstrated evidence of

consciousness of guilt).

4. Automobile exception to the warrant requirement. The

defendant also argues that we should reconsider the Supreme

Judicial Court's decision in Commonwealth v. Motta, 424 Mass.

117, 123 (1997), concluding that a vehicle's "inherent mobility"

allows for a warrantless search of that vehicle in circumstances

such as presented in the instant case. We decline the

defendant's request to review the precedent of the Supreme

Judicial Court. Commonwealth v. Vasquez, 456 Mass. 350, 356

(2010) (Supreme Judicial Court "is the highest appellate

6 Even if the admission of these statements amounted to error,
their admission would not have materially influenced the jury's
verdict in the context of the entire trial. Commonwealth v.
Randoph,438 Mass. 290, 299-300 (2002).

18
authority in the Commonwealth, and [its] decisions on all

questions of law are conclusive on all Massachusetts trial

courts and the Appeals Court"). See Commonwealth v. Dube, 59

Mass. App. Ct. 476, 485-486 (2003) (Appeals Court has "no power

to alter, overrule or decline to follow the holdings of cases"

decided by Supreme Judicial Court).

Conclusion. Because we conclude that the evidence was

sufficient to prove beyond a reasonable doubt that the defendant

unlawfully possessed a firearm, and that none of the alleged

errors in the trial warrant a reversal, we affirm the

defendant's conviction on that charge. However, we conclude

that the evidence was insufficient to prove that the defendant

unlawfully possessed a loaded firearm and that the defendant

unlawfully possessed ammunition; accordingly, we reverse and set

aside those convictions.

So ordered.

By the Court (Milkey,
Neyman & Smyth, JJ. 7),

Clerk

Entered: October 3, 2023.

7 The panelists are listed in order of seniority.

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