Opinion
No. 23-P-1460.
11-05-2024
COMMONWEALTH v. JOSE ENCARNACION.
James P. McKenna for the defendant. Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth.
Present:
COMPLAINT received and sworn to in the Springfield Division of the District Court Department on January 9, 2020.
The case was tried before Patrick S. Sabbs, J., and a motion for a new trial was heard by him.
James P. McKenna for the defendant.
Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth.
D'ANGELO, J. In this appeal, we are asked to decide whether a witness from the Department of Criminal Justice Information Services (CJIS) may testify about the results of a search of its firearm registry records conducted by a nontestifying CJIS employee. We hold that such testimony is inadmissible hearsay and violates the confrontation clause of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. In the context of this case, we further conclude that, as to the conviction of carrying a firearm without a license, the CJIS employee's testimony was harmless beyond a reasonable doubt because at the time of the defendant's arrest he admit
ted that he did not have a license to carry a firearm (LTC). However, without the CJIS employee's inadmissible testimony, there was no evidence that the defendant did not have a valid firearms identification card (FID) and therefore we vacate his conviction of unlawful possession of ammunition.
The jury convicted the defendant of carrying a firearm without a license, G. L. c. 269, § 10 (a); possession of a loaded firearm, G. L. c. 269, § 10 (n); and possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h) (1). The defendant was acquitted of operating a motor vehicle with his license suspended, G. L. c. 90, § 23.
The defendant also argues that the jury instructions were erroneous. As discussed infra, we find no merit to that argument. In addition, this appeal has been consolidated with the denial of the defendant's motion for new trial. Therein, he argued that the trial judge erred in denying his motion for new trial because his lawyer was ineffective for not moving to suppress his incriminating admission that he did not have an LTC. We also address this argument infra, and find no error in the denial of the defendant's motion for new trial.
Background. The defendant's car was stopped on January 8, 2020, because he had a defective brake light. During the stop, officers learned that the defendant had a suspended driver's license and arrested him. The officer placed the defendant in handcuffs and found a firearm between the driver's seat and the center console. The officer approached the defendant and “demanded his [LTC].” In response, the defendant informed the officer that “he did not have [an LTC].” Officers searched the defendant's vehicle and found a sock containing six rounds of loose ammunition and a firearm magazine containing seven rounds of ammunition.
CJIS Deputy Commissioner Michaela Dunne (Dunne) testified that a CJIS system available to law enforcement contains a record of people who have applied for a firearm license and whether the applicants were denied or granted a license. To search the CJIS database, Dunne explained,
“you just type in the person's name and date of birth, and it brings up either a firearms license history if they've ever applied for or been issued a firearm, or it brings up a No Record, essentially saying that based on this name and date of birth, this person does not have a firearms license.”
Dunne did not personally conduct the CJIS query regarding the defendant. Defense counsel objected and argued that Dunne's testimony constituted two levels of hearsay and also violated the defendant's right to confront his accuser. The judge overruled the
objection and allowed Dunne's testimony. Dunne testified that the manager of the CJIS firearms records bureau, Scott Ciccone, conducted the computer search and the result of the query was “there was no record of that name and date of birth in the system” and “that would indicate that the individual does not have a firearms license in Massachusetts and never had a firearms license in Massachusetts” which includes “an LTC or [FID] card.” Dunne learned this information from a printout that she had received by an e-mail message from Ciccone. She did not have it with her in court.
The printout is not in the record before us.
The Commonwealth also attempted to introduce an affidavit of Dunne describing a query conducted by an attorney at CJIS, Amy Conway, that also purportedly resulted in no record being found of an LTC or FID card issued to the defendant. The judge excluded the affidavit. Defense counsel objected to Dunne's testimony about Conway's query. In response, the prosecutor argued that the absence of a record in the CJIS database should be admissible as a business record, referring the judge to Commonwealth v. Guardado, 491 Mass. 666, 700 (2023) (Lowy, J., concurring), S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024). The prosecutor commented, “Alternatively, we could ask for a stay of the trial and satisfy [defense counsel] by calling in a bunch of other witnesses. … Or we could get a computer with some Internet access and have Ms. Dunne run a CJIS query right now. Either way, the end result is the same: there is no record.” The Commonwealth did not offer the evidence by either of those methods. Instead, the judge permitted Dunne to testify, over objection, that the defendant did not have an LTC or an FID.
The affidavit was not marked for identification and is not in the record before us.
After the close of evidence, the judge instructed the jury as to the Commonwealth's burden of proof regarding whether the defendant was licensed to carry a firearm. The judge explained, “[t]here was no evidence in this case that the defendant had [an LTC]. … For that reason, the issue of [an LTC or FID] … is not relevant to your deliberations in this case, and therefore you … must put it completely out of your mind.” After a sidebar conversation during which both the prosecutor and the defense counsel suggested that the judge should have informed the jury of
the Commonwealth's burden to prove that the defendant was not licensed to carry a firearm, the judge reinstructed the jury: “the Commonwealth has to prove that the defendant did not have a valid license to carry a firearm outside of their home or business and did not have a right to carry a loaded firearm outside their home or business.”
The defendant was convicted of all the firearm related offenses and he filed a timely notice of appeal. The defendant submitted a motion for a new trial arguing that his trial lawyer was ineffective for not moving to suppress his incriminating admission that he did not have an LTC. The judge issued an order denying the motion. The defendant's appeal from his convictions and his appeal from the judge's order denying his motion for new trial were consolidated.
Discussion. 1. Firearm license evidence. The defendant submits that the judge erred by allowing Dunne's testimony that searches of the CJIS database did not show that the defendant had an LTC or FID. The defendant argues that the testimony violated the rule against hearsay and his right to confrontation under the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights.
“Out-of-court statements offered for the truth of the matter asserted by a declarant who does not testify at trial must pass two ‘distinct but symbiotic’ tests to be admitted.” Commonwealth v. Rand, 487 Mass. 811, 815 (2021), quoting United States v. Brito, 427 F.3d 53, 60 (1st Cir. 2005), cert. denied, 548 U.S. 926 (2006). “First, the statement must be admissible under our common-law rules of evidence as an exception [or exemption] to the hearsay rule. … Second, the statement must be nontestimonial for purposes of the confrontation clause of the Sixth Amendment.” Rand, supra, quoting Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011).
“The confrontation clause bars the admission of testimonial hearsay by a declarant who does not appear at trial, unless the declarant is unavailable to testify as a matter of law and the defendant had an earlier opportunity to cross-examine him or her.” Commonwealth v. McGann, 484 Mass. 312, 316 (2020). Where, as here, a defendant objects to evidence that was admitted in violation of his or her constitutional rights, we review “to determine whether it was harmless beyond a reasonable doubt” (citation omitted). Commonwealth v. Wardsworth, 482 Mass. 454, 458 (2019).
a. Hearsay. “Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27 (2000). See Mass. G. Evid. § 801(c) (2024). The judge allowed Dunne to testify that she had reviewed information from both Ciccone and Conway showing that the defendant did not have and never had an LTC or FID. The first question for this court is whether the information from Ciccone and Conway was hearsay and, if so, whether any exception allowed for Dunne to testify to it.
Because we hold that Dunne's testimony relying on the information from Ciccone and Conway is hearsay, we need not reach the issue whether the CJIS computer information is also hearsay. See Guardado, 491 Mass. at 698 (Lowy, J., concurring) (“insofar as the witness testifies as to the contents of computer-stored records, those records may constitute hearsay). See also Commonwealth v. Royal, 89 Mass. App. Ct. 168, 169-173 (2016) (State police trooper's testimony that he checked motor vehicle registry database and defendant's license was listed as suspended was inadmissible hearsay because such records were computer-stored …”).
Although neither the printout that Ciccone created of his search results nor Dunne's affidavit describing Conway's search is in the record before us, see notes 3 and 4, supra, it is apparent from Dunne's testimony that she was relying on the information gleaned from those searches, which was being offered for its truth, i.e. that there was “no record” of the defendant having an LTC or FID. Thus, Dunne's testimony about the results of the searches by Ciccone and Conway was hearsay.
Because neither Ciccone's printout nor the affidavit setting forth the results of Conway's search is in the record, we do not reach the questions whether either of those documents would have been admissible as business or official records. However, we note that the Commonwealth's argument at trial that the printout and the affidavit should be admissible as business records misreads Justice Lowy's concurrence in Guardado. Justice Lowy cautioned that for a witness to testify about the absence of an official record, a foundation first must be laid showing the witness's “sufficient familiarity with how the record was created, maintained, and accessed,” and testimony “to the contents of computer-stored records … may constitute hearsay” unless the records are “properly certified.” Guardado, 491 Mass. at 698 (Lowy, J. concurring), quoting Royal, 89 Mass. App. Ct. at 169-173 (2016). See also Mass. G. Evid. §§ 803(10), 902(b) (2024). On appeal, the Commonwealth does not argue that any such foundation was laid here.
We conclude that the information gleaned from the CJIS searches by Ciccone and Conway was hearsay and no exception
allowed for Dunne to testify to that information.
To meet the requirements of admissibility, the Commonwealth must present nonhearsay evidence or evidence within an exception to the hearsay rule. “[T]he admission of properly authenticated copies of preexisting firearms licensing records that were made and kept in the ordinary course of business … are not testimonial. Such records might be used, for example to show that a defendant's name did not appear in the record … . It is also conceivable, depending on how the records are compiled, or may be compiled in the future in response to this court's decision today, that a copy of an excerpted alphabetical list of firearms licenses might reveal the absence of a license held by a defendant.” Guardado, 491 Mass. at 703 (Lowy, J., concurring).
b. Confrontation clause. Even if the results of Ciccone's and Conway's searches were admissible under some exception to the hearsay rule, testimony about their contents would violate the defendant's right to confrontation pursuant to the Sixth Amendment and art. 12. A criminal defendant has the right to confront the government's witnesses. See Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009). See also Commonwealth v. Nardi, 452 Mass. 379, 388 n.10 (2008) (“the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment” [citation omitted]).
The confrontation clause of the Sixth Amendment guarantees a defendant the opportunity to confront the declarant of “testimonial” statements used against the defendant at trial, and to do so by the “crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004). These constitutional provisions “prohibit[ ] the admission of testimonial statements unless the declarant testifies at trial or is formally unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant.” Commonwealth v. Durand, 457 Mass. 574, 584 (2010). See Melendez-Diaz v. Massachusetts, 557 U.S. at 309.
“[T]o meet the requirements of the confrontation clause, the Commonwealth would likely have to present a witness who actually undertook a search of the firearms licensing records and determined that the defendant lacked a license.” Guardado, 491 Mass. at 702 (Lowy, J., concurring). This witness would of course need to show that the search was conducted using the defendant's correct name and date of birth. For example, without proof that the search was for “Encarnacion” rather than “Encarnation,” it would not be relevant.
In his concurrence in Guardado, 491 Mass. at 701, Justice Lowy cited State v. Carrion, 249 N.J. 253, 272 (2021), for the proposition that “although the underlying firearm license database was not itself testimonial in character, the creation of a document attesting to a search of that database for the purpose of
prosecuting the defendant was.” In Carrion, supra, the court explained, “it is the creation of a document attesting to an interpretation or search of that data — for the sole purpose of prosecuting a defendant — that is testimonial.” Other jurisdictions have reached similar conclusions. See State v. Jasper, 174 Wash. 2d 96, 113 (2012) (“A substantial majority of courts have held since Melendez-Diaz v. Massachusetts, [557 U.S. at 311,] that clerk certifications attesting to the nonexistence of a public record are testimonial statements”).
We agree with the holding in Carrion. The information from Ciccone and Conway that Dunne relied on for her testimony in this case was not the raw data of the firearm registry, but search results created for the purpose of prosecuting the defendant. See Commonwealth v. Parenteau, 460 Mass. 1, 8 (2011) (where document is subsequently created by agency to establish fact at trial, it is testimonial and violates confrontation clause even though document is based on preexisting agency records). Where the Commonwealth seeks to introduce the testimonial results of a database search or analysis, it must, at a minimum, offer testimony of the person who searched the database. See Commonwealth v. Sullivan, 478 Mass. 369, 376-377 (2017). Because Dunne was not the person who conducted the searches, she could not testify about the results of the searches or the information contained in the printout. See id. (testimony regarding deoxyribonucleic acid extraction and that profile matched person in national database improperly admitted hearsay because those responsible for testing did not testify and were not subject to cross-examination). See also Carrion, 249 N.J. at 272 (testimony improper because defendant “could not explore whether the officer used the correct date of birth, name, or other identifying information such as a social security number in order to generate a correct search of the database, and what information that search produced”).
Dunne was not offering her own independent interpretation of raw data produced by either Ciccone or Conway; instead, Dunne served as a conduit through which the Commonwealth sought to convey to the jury Ciccone's and Conway's statements regarding the results of their CJIS queries. And because the Commonwealth did not establish that either Ciccone or Conway was unavailable nor provide the defendant an opportunity to cross-examine either
witness, the defendant's right to confront his accuser was violated. See Commonwealth v. Trotto, 487 Mass. 708, 731-732 (2021).
In fact, on cross examination Dunne testified that Ciccone was still employed by CJIS but he was not in the office on the day of trial.
2. Harmless error. a. Firearm offenses. Where a defendant objects to a constitutional error, “we evaluate the admission of constitutionally proscribed evidence to determine whether it was harmless beyond a reasonable doubt.” Rand, 487 Mass. at 814-815, quoting Wardsworth, 482 Mass. at 458. Dunne's testimony was not the only evidence the Commonwealth relied on to prove that the defendant lacked a firearm license. The jury also heard that the defendant admitted that “he did not have [an LTC].” However, “the constitutional harmless error standard that governs a confrontation clause violation is not satisfied simply because the erroneously admitted evidence is cumulative of other properly admitted evidence.” Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 432 (2018). Indeed, “it is not enough for the Commonwealth to demonstrate that its other, properly admitted evidence was ‘sufficient’ to convict the defendant or that the inadmissible evidence was ‘consistent’ with the admissible evidence.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting Commonwealth v. Dagraca, 447 Mass. 546, 554-555 (2006). When evaluating whether an error is harmless, we must decide “on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, whether we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdicts” (citation omitted). Commonwealth v. Gumkowski, 487 Mass. 314, 322 (2021). To assess the strength of the properly admitted evidence against the effect of the erroneously admitted evidence,
“we examine various factors, including the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.”
Dagraca, supra at 553.
As indicated, in addition to Dunne's testimony to establish the element of a lack of a firearm license, the Commonwealth also presented testimony from the arresting officer that the defendant admitted he did not have an LTC. Although the officer's explanation of the defendant's admission comprised only a single line of testimony, it directly established that the defendant lacked an LTC. Lengthier testimony would not necessarily have yielded stronger evidence. The defendant, moreover, did not dispute the accuracy of the officer's testimony nor suggest that the officer lacked credibility. See Commonwealth v. Bookman, 492 Mass. 396, 401 (2023). Lastly, the prosecutor in his closing argument highlighted for the jury that the defendant admitted to the arresting officer that he did not have an LTC.
We accordingly conclude that the constitutional error of admitting hearsay regarding the lack of an LTC was harmless beyond a reasonable doubt.
b. Ammunition charge. The defendant was also charged with possession of ammunition without an FID in violation of G. L. c. 269, § 10 (h). “To convict a defendant of unlicensed possession of ammunition, the Commonwealth must show that the defendant (1) possessed, (2) ammunition designed for use in any firearm, and (3) without complying with the FID card requirements as provided by the applicable statute.” Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 245 (2011).
Because the officer's demand and the defendant's admission concerned only an LTC, Dunne's testimony was the only evidence from which the jury could have found that the defendant lacked an FID. Without Dunne's testimony, the Commonwealth could not establish the elements necessary to convict the defendant of unlawful possession of ammunition. The prejudicial impact of Dunne's testimony that the defendant lacked an FID was “too strong to be considered harmless.” Commonwealth v. Howard, 469 Mass. 721, 737 (2014), S.C., 479 Mass. 52 (2018). Accordingly, the defendant's conviction of possession of ammunition must be vacated, and the verdict set aside. See Commonwealth v. Vasquez, 456 Mass. 350, 368 (2010) (remedy for confrontation clause error is vacating conviction with option to retry, not entry of judgment for defendant). See also Commonwealth v. Wooden, 103 Mass. App. Ct. 677, 684 (2024) (conviction of carrying firearm without license vacated with “Commonwealth remaining free to retry the defendant if it so chooses”).
3. Jury instructions. The defendant argues that the judge's instructions regarding the Commonwealth's burden of proving
lack of licensure were erroneous and warrant reversal of the defendant's conviction. “Trial judges are accorded considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.” Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002). “We evaluate jury instructions ‘as a whole, looking for the interpretation a reasonable juror would place on the judge's words’ ” (citation omitted). Commonwealth v. Harris, 464 Mass. 425, 434 (2013).
After the judge's first instruction, the prosecutor and defense counsel approached the judge at sidebar and agreed that the instruction regarding the Commonwealth's burden to prove lack of licensure did not comport with Guardado, 491 Mass. at 690-691, which was decided about a month before the trial in this case. After the sidebar, the judge provided a corrected instruction that accurately described the Commonwealth's burden of proof. The defendant now argues that because the judge provided an incorrect instruction before correcting himself and then accurately instructing the jury, the instructions as a whole were “ambiguous, confusing, and contradictory.” Commonwealth v. Allen, 474 Mass. 162, 166-167 (2016). We do not agree. The judge's instructions more closely resemble those in Commonwealth v. Silva, 455 Mass. 503, 524-525 (2009), where “[t]here was no repetitive oscillation between correct and incorrect instructions, but a steady progression toward a correct and thorough instruction.” The judge here also repeatedly “emphasized that the Commonwealth bears the burden of proof beyond a reasonable doubt on all the elements of the crime charged.” Commonwealth v. Lynch, 439 Mass. 532, 544, cert. denied, 540 U.S. 1059 (2003). The judge's revised instruction adequately corrected the error in his first instruction and properly conveyed to the jury the Commonwealth's burden of proving that the defendant did not have a firearm license. See Commonwealth v. Shelley, 411 Mass. 692, 697 n.4 (1992) (“if the challenged portions of the instructions contained any error, the judge's final charge cured the error”).
4. Motion for new trial. The defendant filed a motion for new trial which alleged that his trial counsel was ineffective for failing to file a motion to suppress his statement that he had no LTC. The defendant argues that the police officer's demand amounted to “a show of authority with which a reasonable person would feel compelled to comply” and that therefore the defendant's admission was involuntary. Commonwealth v. Murphy, 63 Mass. App. Ct. 11, 19 (2005). The motion for new trial was not supported by
any affidavit of the defendant averring that he felt compelled to comply with the officer's demand, nor by any affidavit of trial counsel explaining his reasons for not moving to suppress the defendant's statement. “When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source.” Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
“To prevail on a motion for a new trial claiming ineffective assistance of counsel, a defendant must show that there has been a ‘serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,’ and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “In order to show that counsel was ineffective for failing to file a motion to suppress evidence, the defendant must show such a motion likely would have succeeded.” Commonwealth v. Buckman, 461 Mass. 24, 40 (2011), cert. denied, 567 U.S. 920 (2012). “In reviewing the denial or grant of a new trial motion, we ‘examine the motion judge's conclusions only to determine whether there has been a significant error of law or other abuses of discretion.’ ” Commonwealth v. Weichell, 446 Mass. 785, 798 (2006), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986).
We note that an ordinary, fallible lawyer might have chosen not to move to suppress the defendant's statement, because doing so would likely have focused the prosecutor's attention on the need to lay a proper foundation for the searches of the CJIS database, as discussed above. See Commonwealth v. Serino, 436 Mass. 408, 413 (2002) (trial counsel strategically chose not to move to suppress statements or seek voir dire on their voluntariness, where doing so would have given police witnesses “opportunity to rehearse” testimony). We need not pause to consider that issue, because we agree with the motion judge, who was also the trial judge, that such a motion would not have been successful.
A statement is presumed voluntary until a defendant produces evidence showing otherwise. Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). The only evidence the defendant produced at the motion for new trial is that the police officer “demanded” the defendant to produce an LTC. He argues that because of this request, the defendant's statement is involuntary. We do not agree.
A voluntary statement is “the product of a rational intellect and a free will, and not induced by physical or psychological coercion” (quotations and citations omitted). Commonwealth v. Hammond, 477 Mass. 499, 502 (2017). More specifically, “[t]he test for voluntariness … is whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act” (quotations and citations omitted). Id. “Under this ‘totality of the circumstances’ test, we consider all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant” (citations omitted). Id. “Factors that can be relevant to the determination of voluntariness include the defendant's age, education, intelligence, emotional stability, experience with the criminal justice system. … However, the presence of one or more factors suggesting involuntariness does not necessarily make a statement involuntary” (citation omitted). Commonwealth v. Chilcoff, 103 Mass. App. Ct. 48, 53-54 (2023).
It is true that the defendant was handcuffed when the officer “demanded” his LTC, but that is not dispositive. See Commonwealth v. Rodrigues, 104 Mass. App. Ct. 410, 412-416 (2024). Here, there was no evidence that the defendant's faculties were diminished by drugs or alcohol, that he was fearful or distressed to the degree that he could not think clearly, that he had been detained for a significant period of time, or that he lacked mental or emotional maturity. See id.; Commonwealth v. Harris, 75 Mass. App. Ct. 696, 700 (2009). To the contrary, the defendant was handcuffed immediately after the officer stopped his car, he was “very cooperative” with officers, and an officer demanded the defendant's LTC within a few moments after he was handcuffed. None of these facts lends credence to the defendant's argument that his admission was involuntary. Contrast Rodrigues, supra (production of physical evidence involuntary where defendant was handcuffed and seated on curb of sidewalk for thirty to forty-five minutes and his “surrender of the [evidence] was the culmination of an increasingly skeptical and confrontational turn in the officer's questioning of him”).
The judge was correct to find that trial counsel was not ineffective for failing to move to suppress the defendant's admission that he did not have an LTC and therefore did not abuse his discretion in denying the defendant's motion for a new trial. See Commonwealth v. McWilliams, 473 Mass. 606, 619 (2016); Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 324 (2009).
In his written order denying the defendant's motion for a new trial, the judge stated that “Miranda warnings … protect the integrity of a suspect's privilege against self-incrimination.” He further stated that the privilege “does not permit a suspect to refuse to produce real or physical evidence (such as a license) when lawfully ordered to do so.” Consequently, the judge found that “it would not have been fruitful for [trial counsel] to litigate this issue.” On appeal, the defendant argues that the judge erred by discussing Miranda, which the defendant contends was not the basis for his argument in support of his motion for a new trial.
The evidence at trial did not establish whether the defendant had been advised of his Miranda rights during the stop.
While the judge mentioned Miranda in his order, his reasoning focused on the defendant's broader right against self-incrimination. This comports with the heart of the defendant's argument, which is based on the language from art. 12 stating that “No subject shall … be compelled to accuse, or furnish evidence against himself.” General Laws c. 140, § 129C, requires, in pertinent part, that a person found with a firearm “shall on demand of a police officer … exhibit his [LTC], or his [FID] or receipt for fee paid for such card, or … a valid hunting license.” We conclude that the judge was correct to consider Miranda as part of his analysis of whether the defendant's admission was voluntary. See Commonwealth v. Selby, 420 Mass. 656, 663 (1995) (“Relevant factors [to a voluntariness inquiry] include … the details of the interrogation, including the recitation of Miranda warnings”).
The defendant also argues that defense counsel was ineffective for failing to request a humane practice instruction. For voluntariness to be considered a “live issue,” to warrant a humane practice instruction, “substantial evidence of involuntariness [must be] produced.” Commonwealth v. Gallett, 481 Mass. 662, 686 (2019). There was no such evidence produced, and therefore no instruction was required and counsel was not ineffective for failing to request one.
Conclusion. The defendant's convictions of carrying a firearm without a license, G. L. c. 269, § 10 (a), and possession of a loaded firearm, G. L. c. 269, § 10 (n), are affirmed. The conviction of unlawful possession of ammunition is vacated, and the verdict is set aside.
So ordered.