Opinion
14-P-1001
09-23-2015
COMMONWEALTH v. DAVID MARTINEZ.
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
Following a jury trial in the District Court, the defendant, David Martinez, was convicted of carrying a firearm without a license, receiving a firearm with a defaced serial number, disorderly conduct, and carrying a loaded firearm without a license. On appeal, he claims that the evidence to convict on the firearms charges was insufficient. He also claims error in certain pretrial orders and in the judge's denial of motions concerning lost or destroyed evidence. We affirm.
The jury found the defendant not guilty of resisting arrest.
1. Sufficiency of the evidence. The defendant first challenges the evidence of possession. A conviction of unlawful possession of a firearm requires the Commonwealth to "prove beyond a reasonable doubt that the defendant 'actually or constructively possessed the firearm,' . . . and that he did so knowingly." Commonwealth v. Romero, 464 Mass. 648, 652 (2013). Constructive possession requires proof that the defendant had knowledge of the weapon and the ability and intention to exercise dominion and control over it. Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 210-211 (2002).
The police observed the defendant among a group of individuals after report of an altercation outside of a mall. Upon seeing the police, the defendant fled. Cambridge police Officer Steven Allen apprehended him following a pursuit. When Allen first observed the defendant, he took note of the manner in which the defendant held his arm ("outstretched"), and that something appeared to be in the defendant's hand. When ordered to stop, the defendant continued to run, giving rise to a reasonable inference that he was trying to discard contraband. See Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012). Police discovered the weapon at issue in the wheel well of a parked motor vehicle, where Allen had seen the defendant crouched during the pursuit, and had "witnessed him kind of extend his arm" and "plac[e] something or do[] something to the vehicle." The motor vehicle was the only one in the area. Finally, the defendant's statement to Allen asking him to "help me out" displayed consciousness of guilt. See ibid. See also Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 386 (2003). Viewed as a whole, in the light most favorable to the Commonwealth, the circumstantial evidence of possession was sufficient to support the defendant's conviction. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979); Commonwealth v. Woods, 466 Mass. 707, 712-713 (2014).
The evidence was also sufficient to prove that neither the defendant's brother, nor some other unidentified person, discarded the gun. See Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 439-440 (2002).
The Commonwealth also met its burden to prove that the gun met the legal definition of a firearm. "Proving this element beyond a reasonable doubt requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire." Commonwealth v. Ramsey, 466 Mass. 489, 497 (2013) (citation omitted). At a viewing of the firearm by defense ballistics expert Greg Danas, three pieces of the gun became dislodged after the evidence officer removed the slide and pulled the trigger, as requested by Danas. The officer terminated the viewing and later reassembled the gun with the aid of an online diagram. Upon later testing at the State police ballistics laboratory, the gun successfully fired. The adjustments made to the gun did not alter its character as a firearm. They were minor and were completed in less than fifteen minutes, without the need for tools or an expert. See Commonwealth v. Jefferson, 461 Mass. at 828, and cases cited. Contrast Commonwealth v. Rhodes, 21 Mass. App. Ct. 968, 969-970 (1986).
The cam, the sear assembly, and the sear spring.
2. Pretrial orders. The defendant contends the motion judge abused her discretion in reversing her order allowing Danas to be present during test firing of the gun. After she initially allowed the motion, the Commonwealth moved to reconsider, citing a section of the Massachusetts State police crime laboratory system administrative manual, and an affidavit from the commanding officer of the State police ballistics laboratory. In his opposition to the Commonwealth's motion, the defendant attached a competing affidavit by Danas. Following a conference on the issue and a review of both submissions, the judge allowed the Commonwealth's motion. The judge was free to reject Danas's affidavit. See Commonwealth v. O'Brien, 423 Mass. 841, 854 (1996). As such, her decision does not fall "outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Section 2.2(2) states: "It is the laboratory's policy that when there is a sufficient sample, defendant's legal counsel or scientific representative will not be allowed into the Crime Laboratory to observe testing."
Danas averred that firearm examination and test firing "is by its very nature a destructive process . . . [that] invites the potential for the destruction of evidence." The Commonwealth's affidavit from the State police directly refuted this point.
3. Destruction of evidence. The defendant contends that he is entitled to a reversal of his convictions because the Commonwealth destroyed material evidence of the weapon's condition, citing the accidental breakdown of the gun during the evidence viewing and its later reassembly. The defendant has not met his burden of demonstrating that the three dislodged pieces amounted to a loss or a destruction of evidence. As we have noted, minor repairs to a gun before testing are permissible. Commonwealth v. Jefferson, supra. The gun parts were not altered and new pieces were not added. The only basis for concluding otherwise was set forth in Danas's affidavit, which, as we have already stated, the judge was free to reject.
Nor has the defendant met his burden to demonstrate that Danas's access to the gun would have yielded exculpatory evidence. See Commonwealth v. Cintron, 438 Mass. 779, 784 (2003). The defendant's assertion that Danas had no access to the gun is unsupported by the record, as is the defendant's suggestion that the gun may have been inoperable when it was found in the wheel well. Moreover, the Commonwealth bears no responsibility for the dislodging of the three parts of the gun during the evidence viewing. To the contrary, all actions taken were done so at the direction of Danas. There was no error.
The defendant likewise suffered no prejudice as a result of the judge's order to reassemble the gun. Danas was permitted to examine the gun after it was test fired; he elected not to do so. Moreover, the police officers were extensively examined at trial about the condition of the gun when it was recovered, the circumstances surrounding the evidence viewing, the gun's reassembly, and the test firing.
Judgments affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 23, 2015.