Opinion
No. 10–P–1711.
2013-01-30
COMMONWEALTH v. Juan MARTINEZ.
By the Court (GRASSO, KAFKER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Juan Martinez, appeals from his firearms convictions and the denial of his motion for a new trial. He raises numerous issues, including the application of an armed career criminal sentence enhancement based on a juvenile adjudication, the admission of a ballistician's certificate, and the denial of his motion to suppress. We affirm.
Sentence enhancement. The defendant was sentenced under G.L.c. 269, § 10G( b ), which requires prior convictions of two violent crimes. He concedes one prior violent crime conviction, but contends that the evidence of the second was insufficient before both the grand jury and the trial judge.
For a juvenile adjudication to be a violent crime for purposes of G.L.c. 269, § 10G, it must involve “the use or possession of a deadly weapon.” G.L.c. 140, § 121. See G.L.c. 269, § 10G( e ); Commonwealth v. Anderson, 461 Mass. 616, 631–632, cert. denied, 133 S.Ct. 433 (2012) ( Anderson ). The “less exacting” standard for the sufficiency of evidence at the grand jury requires only a showing of “probable cause to arrest” the defendant. Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). “Probable cause [to arrest] does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Commonwealth v. Gallant, 453 Mass. 535, 541 (2009), quoting from Smith, Criminal Practice and Procedure § 3.51, at 126–127 (3d ed.2007). The grand jury heard, with reference to this offense, that the defendant had been found delinquent of assault by means of a dangerous weapon. The Supreme Judicial Court has indicated that conviction of a crime involving a dangerous weapon as a juvenile would be a valid predicate for the sentence enhancement. See Anderson, supra at 632. The evidence before the grand jury therefore established probable cause. See Commonwealth v. Bell, 83 Mass.App.Ct. 82, 84–85 (2013).
At trial, documents admitted without objection, including criminal complaints and police reports, stated that the juvenile adjudication was based on the defendant's use of a handgun. In the light most favorable to the Commonwealth, the evidence sufficed to establish the second predicate conviction. See Commonwealth v. Colon, 81 Mass.App.Ct. 8, 24 (2011), citing Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). Compare Anderson, supra at 628 n. 13, 632.
Ballistics certificate. The Commonwealth argues that the erroneous admission of the ballistician's certificate without his live testimony was harmless error beyond a reasonable doubt. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009); Commonwealth v. Vasquez, 456 Mass. 350, 355–360 (2010). Officer Cerullo testified, before the certificate was introduced, that the revolver contained two live rounds and two spent rounds of ammunition when it was recovered. He further stated without objection that, after it was sent for testing, he received one live round and three spent casings because one round had been used for test firing. Unlike Commonwealth v. Barbosa, 461 Mass. 431 (2012), spent projectiles were found in the weapon, and Cerullo's testimony was grounded in his own personal knowledge. See and compare id. at 436–437. Although Cerullo did read the certificate aloud, the prosecutor did not emphasize its importance or even mention it in closing. Compare Commonwealth v. Pittman, 76 Mass.App.Ct. 905, 907 (2010), with Commonwealth v. Ware, 76 Mass.App.Ct. 53, 57–58 (2009). The defendant also solicited on cross-examination that the 911 caller had reported a man with clothing matching the defendant's firing a gun, bolstering the “compelling inference” that the revolver had been fired. Commonwealth v. Depina, 456 Mass. 238, 250 (2010). We conclude that the admission of the certificate was harmless beyond a reasonable doubt. See id. at 249–251.
On the contrary, the prosecutor's argument on this issue was based on Cerullo's testimony: “That gun is loaded and not only is that gun loaded, it has two spent shell casings, spent shell casings meaning it was fired.”
Motion to suppress. We review the motion judge's findings of fact for clear error, and discern none. See id. at 241. To the extent he relied upon the recording of the 911 call, which is in the record before us, we need not defer to his findings. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). However, after listening to the recording, we agree with the motion judge that the content of the call and the demeanor of the caller indicate that he was a firsthand observer of what he described as a “delinquent” shooting a gun. Contrast Commonwealth v. Mubdi, 456 Mass. 385, 396 (2010). The caller was informed that he was being recorded, which weighs somewhat in favor of his reliability, but he was not told that his phone number had been captured. Compare Commonwealth v. Costa, 448 Mass. 510, 515–517 (2007). We concur with the analysis of the motion judge that the Commonwealth established the caller's reliability through “independent corroboration by police observation or investigation of the details of the information provided by the caller.” Anderson, supra at 623. The caller described the number, gender, and location of individuals at the scene, the clothing worn by the defendant, and the distinctive fact that the gun was hidden inside a towel. When Cerullo arrived three minutes later, the caller's statements were corroborated, including the towel around the defendant's neck. This confirmation entitled Cerullo to rely on the 911 call. See Commonwealth v. Depina, supra at 245. The report that the defendant was shooting a firearm in a residential area provided reasonable suspicion justifying Cerullo in stopping him. See Commonwealth v. Perez, 80 Mass.App.Ct. 271, 278–279 (2011). The motion to suppress was therefore properly denied.
The defendant's remaining arguments are unmeritorious for substantially the reasons stated in pages 33–50 of the Commonwealth's brief.
Judgments affirmed.
Order denying motion for new trial affirmed.