Opinion
10-P-1806
03-15-2012
COMMONWEALTH v. ROBERTO SANTIAGO.
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 assault by means of a dangerous weapon and unlawfully carrying a firearm. On appeal, the defendant claims it was error to admit a ballistics certificate in evidence, and that the judge incorrectly defined constructive possession. We affirm in part and reverse in part.
1. Ballistics certificate. The defendant claims that it was not harmless beyond a reasonable doubt to admit a ballistics certificate without testimony from the person who performed the test. We agree. This case is controlled in all material respects by Commonwealth v. Barbosa, 461 Mass. 431, 435-437 (2012). We are constrained, therefore, to reverse the defendant's conviction of unlawfully carrying a firearm.
Operability is not an element of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b), so the confrontation clause problem with the ballistics certificate has no effect on this conviction.
2. Constructive possession. The defendant next claims that the judge incorrectly defined constructive possession. The judge defined constructive possession to the jury as follows: the defendant 'knew where the item was located, and had both the ability and intention to determine what happened to that item.' Constructive possession is generally defined as 'knowledge coupled with the ability and intention to exercise dominion and control.' Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). While it would have been better for the judge to have used the model instructions to define constructive possession, the defendant did not object, and we review only to determine if there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 54 (2011).
To the extent the jury instruction claim affects the defendant's conviction of assault by means of a dangerous weapon, we address it, even though the jury more likely concluded that the defendant actually possessed the gun for the purpose of this crime.
--------
We consider the charge as a whole and look 'for the interpretation a reasonable juror would place on the judge's words.' Commonwealth v. Filopoulos, 451 Mass. 234, 242 (2008), quoting from Commonwealth v. Harbin, 435 Mass. 654, 658 (2002). The language was not as confusing as the defendant maintains. He claims that the jury would have understood the phrase 'determine what happened' only to mean that the defendant could 'figure out where the item might have gone and what might have occurred to it.' We disagree. Our reading of the record and the judge's instruction leads us to conclude that it is more likely that the jury would have understood the word 'determine' to mean 'control,' just as it was probably so understood by defense counsel, who did not object. This is also more reasonable because the judge already had told the jury that the defendant had to know 'where the item was located.' Even if the instruction was error, it did not create a substantial risk of a miscarriage of justice. The judge's instruction was not so 'fatally deficient,' as the defendant asserts, that there was 'a substantial risk that [he] has been convicted for a course of conduct that is not criminal at all.' Commonwealth v. Amirault, 424 Mass. 618, 647 n.21 (1997).
On the indictment charging unlawfully carrying a firearm, the judgment is reversed, and the verdict is set aside. On the indictment charging assault by means of a dangerous weapon, the judgment is affirmed.
So ordered.
By the Court (Katzmann, Vuono & Meade, JJ.),