Nor has the fact that the weapon was loaded when discovered been found to establish harmlessness beyond a reasonable doubt; absent the presence of a spent casing in the weapon's chamber. Id. at 172, 921 N.E.2d 981, citing Commonwealth v. Ware, 76 Mass.App.Ct. 53, 57, 918 N.E.2d 861 (2009) (gun with round in chamber and loaded magazine admitted in evidence not sufficient for court to conclude that ballistics certificate did not contribute to jury's verdicts). See Commonwealth v. Depina, supra at 250, 922 N.E.2d 778 (“While it is conceivable that a revolver may contain a spent casing and still not be capable of discharging a bullet, the compelling inference from such testimony is that the spent casing found by [the officer] in the revolver remained after the discharge of a bullet from that revolver”).
However, these facts alone are not enough evidence to conclude that the jury did not rely on the certificate's compelling evidence of the gun's operability to determine whether the gun met the statutory definition of a firearm. See Commonwealth v. Ware, 76 Mass. App. Ct. 53, 57 (2009), citing Commonwealth v. Hollister, 75 Mass. App. Ct. 729, 734 (2009) (gun with round in chamber and loaded magazine admitted in evidence not sufficient for court to conclude that ballistics certificate did not contribute to jury's verdicts). The Commonwealth has not shown that the admission of the certificate was harmless beyond a reasonable doubt.
Officer Schmidt also noted that the defendant appeared to be between eighteen and twenty-two years old, and likely under age twenty-one, making it unlawful for the defendant to carry a firearm. See Commonwealth v. Ware , 76 Mass. App. Ct. 53, 55-56 (2009).--------
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.
Where the defendant was convicted of several firearm offenses, as well as offenses of armed kidnapping and armed robbery, the Commonwealth had the burden of proving that the defendant possessed a firearm, within the meaning of G.L. c. 140, § 121. “To constitute a firearm within the meaning of [the statute] ... the instrument in question must be (1) a weapon, (2) capable of discharging a shot or bullet, and (3) under a certain length.” Commonwealth v. Ware, 76 Mass.App.Ct. 53, 56 (2009) (quotations and citation omitted). The defendant contends that, without use of the certificates, the Commonwealth failed to prove the second prong of operability.
We note that the prosecutor did not refer to the certificates during his closing argument. Contrast Commonwealth v. Tyree, supra at 702; Commonwealth v. Ware, 76 Mass. App. Ct. 53, 57-58 (2009); Commonwealth v. Perez, 76 Mass. App. Ct. 439, 444 (2010). The evidence of the certificates as to the amount of cocaine, although a more difficult question, was also, in our view, harmless beyond a reasonable doubt.
But most importantly, you have the certificate from the State Police saying, yes; this is cocaine as it is defined, a controlled substance." Compare Commonwealth v. Ware, 76 Mass. App. Ct. 53, 57-58 (2009) (prosecutor's argument relying on ballistics certificate). We are not persuaded that the admission of the certificate was harmless beyond a reasonable doubt.