Opinion
13-P-1459
11-26-2014
COMMONWEALTH v. FELIX PIERRE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury of illegal possession of a firearm, G. L. c. 269, § 10(a), and of being an armed career criminal, G. L. c. 269, § 10G(a). He has filed this appeal challenging both the order denying his motion to suppress evidence and his convictions.
As to the defendant's motion to suppress, he argued below only that there was insufficient evidence within the four corners of the search warrant affidavit to demonstrate probable cause that a firearm that was possessed illegally or had been used in the commission of a crime would be found in the Danvers motel room in which the firearm at issue in this case was seized pursuant to the warrant. Even if there was insufficient evidence in the affidavit to support a conclusion that an illegally possessed firearm or one used in the commission of a crime would be found in the motel room, nonetheless, it is uncontested that the warrant affidavit contained sufficient evidence to support a search of the motel room for illegal narcotics as was also authorized by the warrant. Thus, regardless of the propriety of the issuance of the search warrant to the extent it permitted an entry of the motel room and a search therein for guns, the affidavit clearly sufficed to permit issuance of the warrant to the extent that it authorized, as it did, entry of the motel room and a search therein for narcotics. The defendant did not address this aspect of the warrant below, nor did the defendant argue below that, even if the warrant properly issued allowing a search for narcotics, the seizure of the gun was not a valid plain view seizure. That argument, raised for the first time on appeal, therefore was waived. See, e.g., Lykus v. Commonwealth, 432 Mass. 160, 164 (2000). The judge did not err in denying the motion to suppress.
The defendant next argues that both his convictions must be reversed because of testimony at trial by the Commonwealth's expert that "there was a sufficient quantity and quality of individual microscopic markings [matching a test-fired bullet] . . . to state that [the revolver recovered from the Danvers motel room] was the weapon that in fact fired the five . . . projectiles" earlier recovered at a crime scene.
Following the defendant's trial on the illegal possession of a firearm charge, the Supreme Judicial Court decided Commonwealth v. Pytou Heang, 458 Mass. 827 (2011). There, the court indicated that when an expert witness offers an opinion that is empirically based but subjective in nature, such as whether a cartridge or casing was fired from a particular firearm, the witness may not imply that the opinion has a statistical or mathematical basis. "Phrases that could give the jury an impression of greater certainty, such as 'practical impossibility' and 'absolute certainty' should be avoided. The phrase 'reasonable degree of scientific certainty' should also be avoided because it suggests that forensic ballistics is a science where it is clearly as much an art as a science." Id. at 849 (internal citations and footnote omitted). The court stated that an expert may, on the contrary, testify only to a "reasonable degree of ballistic certainty." Id. at 848-849.
The defendant did not object to the expert's statement in this case. Reading the expert's testimony as a whole, we conclude that, even if the statement that the gun "was" the one used in the prior crime, was error, it could not have created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The witness provided a detailed explanation of his work, and, in light of that, we think there is no likelihood that the jury were misled into thinking that there was a mathematical certainty that the gun at issue here was the same as the one that had been fired previously.
The defendant argues finally that there was insufficient evidence that he illegally possessed a firearm in violation of G. L. c. 269, § 10(a). First, although such a finding was not compelled, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that the defendant actually possessed the gun at issue. There was evidence from which the jury could infer beyond a reasonable doubt that the gun found in the motel room was the same one that had been fired in a violent altercation involving both the defendant and his codefendant, Guttierez, the month prior. There was also evidence that the defendant -- at the time of that prior altercation --handed a gun to someone who then handed it to his codefendant, who then fired the gun. The jury could have inferred that the gun found in the motel was the same as the one fired in the altercation.
As to whether it was a working firearm, there was not only a firearm certificate, properly admitted, which attested to the test firing of the gun, there was the evidence that it had in fact been fired immediately after the point at which the jury could have found the defendant personally possessed it. Finally, as to whether the barrel of the gun was greater than sixteen inches, among other things the gun itself was placed in evidence. The jury were able to determine, therefore, whether the gun was longer than sixteen inches. The defendant makes no argument to the contrary.
Judgments affirmed.
By the Court (Trainor, Rubin & Sullivan, JJ.),
Panel members appear in order of seniority.
Clerk Entered: November 26, 2014.