Opinion
14-P-854
06-03-2015
COMMONWEALTH v. DAVID YARDE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David Yarde, appeals from his conviction of unlawful possession of a firearm under G. L. c. 269, § 10(a). He contends that the motion judge improperly denied his motion to exclude the firearm and all testimony regarding ballistics testing. We affirm.
The defendant argues that the Commonwealth may have altered exculpatory evidence when, in violation of an alleged oral discovery order, the Commonwealth's ballistics expert tested the firearm outside the presence of the defendant's ballistics expert and without prior notice to the defendant's counsel. "A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden to . . . establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [lost or destroyed] evidence would have produced evidence favorable to his cause." Commonwealth v. Williams, 455 Mass. 706, 716-717 (2010), quoting from Commonwealth v. Citron, 438 Mass. 779, 784 (2003). If the defendant fails to meet his initial burden he "may nevertheless be independently entitled to a remedy if he can establish that the loss or destruction of the evidence was committed by the Commonwealth 'in bad faith or recklessly.'" Commonwealth v. Sanford, 460 Mass. 441, 450 (2011), quoting from Williams, supra at 718.
The defendant does not explain why the Commonwealth's ballistics expert's testing of the firearm results in a loss or destruction of exculpatory evidence. He instead asserts it as a matter of fact.
Our review of the record indicates that the defendant did not establish a reasonable and evidence-based possibility that the lost opportunity to observe the Commonwealth's ballistics expert test the firearm was exculpatory. See Commonwealth v. Dinkins, 440 Mass. 715, 718 (2004), quoting from Citron, supra ("It is not enough for a defendant merely to argue . . . that, with access to the evidence, his expert 'could have made potentially exculpatory findings.' [This] . . . is merely an introduction to speculation and is not a substitute for 'concrete evidence'"). The defendant's assertion to the contrary "is based on surmise and speculation." Sanford, supra at 448, quoting from Williams, supra at 720. We also discern no prejudice where the defendant's expert subsequently tested the firearm and found it to be operable, albeit not as originally designed. See Commonwealth v. Hunter, 426 Mass. 715, 718 (1998); Commonwealth v. DiBenedetto, 427 Mass. 414, 419 (1998); Commonwealth v. Greenberg, 34 Mass. App. Ct. 197, 203-204 (1993).
The defendant also fails to establish that the Commonwealth acted in bad faith or recklessly. At a minimum, there was no written order. The motion judge, in response to the defendant's motion to exclude, ordered the matter to be sent back before the arraignment judge to determine whether an order had been entered. At the remand hearing, the arraignment judge denied the motion without prejudice. His ruling contained no findings or suggestion of bad faith or recklessness on the part of the Commonwealth. This was not a case of blatant disregard of court orders. Cf. Sanford, 460 Mass. at 450-451 (recognizing violation of discovery orders as misconduct). Thus, the defendant's motion to suppress evidence regarding ballistics testing was properly denied.
Judgment affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 3, 2015.