Opinion
10-P-661
03-27-2012
COMMONWEALTH v. DWAYNE JOHNSON.
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
After a jury trial, the defendant was convicted of trafficking in cocaine, two charges of unlawful possession of a firearm, and possession of ammunition. His motion for a new trial was allowed as to the charges of trafficking in cocaine and unlawful possession of two firearms, because drug and ballistics certificates were admitted in evidence without an opportunity for the defendant to cross-examine either expert analyst. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). He now appeals from the order denying his motion for a new trial only on the charge of possession of ammunition. He also argues that he was wrongfully denied a hearing on his motion to suppress and that the charges of possession of firearms and ammunition without a license violated his rights under the Second Amendment to the United States Constitution.
At oral argument, the Commonwealth conceded that the erroneous admission of the ballistics certificate on the charge of unlawful possession of ammunition was not harmless beyond a reasonable doubt. See Melendez-Diaz v. Massachusetts, supra; Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010). In addition, the prosecutor asked that, if we agreed and the conviction were to be reversed, we also remand the matter for a hearing on the defendant's motion to suppress.
A hearing is now pending on the defendant's motion to suppress the guns and drugs that were seized at the same time as the ammunition at issue before us; as noted, the defendant's motion for a new trial was allowed by the trial judge as to the guns and the drugs. We commend the Commonwealth and this prosecutor for her forthright acknowledgment of error and appropriate suggestion about the fairest and most efficient way to proceed.
After careful review, we agree that the error in admitting the ballistics certificate was not harmless beyond a reasonable doubt. There was no direct evidence, apart from the certificates, that the exhibit was ammunition. In addition, no witness testified that the ammunition at issue was loaded into a firearm when it was recovered from the defendant; nor was the defendant charged with possession of a loaded firearm. A photograph was admitted in evidence, showing ammunition in a clip; however, that photograph was neither linked to the defendant nor to the apartment where the guns and ammunition were seized.
As to the motion to suppress, the motion judge originally denied the defendant's request for an evidentiary hearing, ruling that he had not established a reasonable expectation of privacy in the premises where the evidence was seized. A different judge tried the case and later ruled on the defendant's motion for a new trial. That judge agreed that the defendant 'had automatic standing to contest the search and he should have been granted a hearing,' citing Commonwealth v. Mubdi, 456 Mass. 385, 392-395 (2010). However, based upon the evidence admitted at trial, the judge thought it 'not likely that the defendant would be successful on his motion to suppress,' and denied the motion for a new trial on the ammunition charge. As noted, supra, the Commonwealth now concedes, in light of Mubdi, that a hearing should have been held on the motion to suppress and does not object to having that matter remanded as well. We agree.
We also note that, in his motion for a new trial, the defendant proffered evidence that, if credited by the judge in the hearing on the motion to suppress, might cast doubt on the credibility of the police officers who conducted the search.
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Finally, the defendant argues that 'the Commonwealth's prosecution of the defendant for possession of . . . ammunition without a license was in violation of his rights under the Second Amendment [to the United States Constitution].' Because we resolve the matter before us in the defendant's favor, we do not reach this claim. See Commonwealth v. Paasche, 391 Mass. 18, 21 (1984) ('We do not decide constitutional questions unless they must necessarily be reached').
The order denying the defendant's motion for a new trial is reversed, the judgment is reversed, the verdict is set aside, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Graham, Grainger & Hanlon, JJ.),