Opinion
No. 11–P–1789.
2012-10-24
COMMONWEALTH v. Edwin DePEIZA.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Under the Supreme Judicial Court's decision in Commonwealth v. Muniz, 456 Mass. 166 (2010), the introduction of the gun certificate in this case without the opportunity for the defendant to cross-examine the affiant violated the confrontation clause of the Sixth Amendment to the United States Constitution. The judgments of conviction therefore must be reversed.
Defense counsel's statement that he had no objection to the admission of the certificate without the appearance of the affiant merely reflects the post-Verde ( Commonwealth v. Verde, 444 Mass. 279, 284 [2005] ), pre-Melendez-Diaz ( Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310–311 [2009] ) state of the law and does not amount to a waiver of the defendant's Sixth Amendment right. See Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). As the Commonwealth acknowledges, this was not a stipulation that the gun was operable. Cf. Commonwealth v. Muniz, supra at 173 & n. 7 (stipulation by parties relieves Commonwealth of burden of proving a particular element and renders erroneous admission harmless beyond a reasonable doubt as to that issue). While the evidentiary landscape may change should there be a retrial of this case, we briefly address two of the issues raised by the defendant because they may recur.
First, even if the question for the defendant's father about his knowledge of the defendant's brother's gun conviction might otherwise properly have been used to impeach the father, the minimal probative value of any admissible evidence to which it might have led is far outweighed by its prejudicial effect. The same is true with respect to the question asked of the defendant.
Second, we see no error in the judge's declining to give a necessity instruction. We may assume, as the defendant argues, that a reasonable fear of retaliation for being seen cooperating with the police would entitle a person charged with possession, such as the defendant, who had taken possession of a gun found on his property and was in the process of delivering it to the police (rather than, for example, simply calling the police to come to his home to retrieve the gun), to a necessity instruction. The defendant posits that this hypothetical describes the facts of this case.
We do not, however, conclude that it would have been error to give the instruction.
The defendant, however, concedes that he failed to report the gun he was allegedly en route to deliver to the police to the police officers who pulled him over. Because the defendant thus admittedly failed to give the gun to the police when he had the opportunity to do so, he was not entitled to a necessity instruction.
Judgments reversed.
Verdicts set aside.