Opinion
No. 09–P–2230.
2012-10-4
COMMONWEALTH . Jamarle HILL.
By the Court (GREEN, TRAINOR & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of unlawful possession of a firearm; unlawful possession of ammunition without a firearms identification (FID) card; unlawful possession of a loaded firearm; assault by means of a dangerous weapon; and resisting arrest. The defendant appealed his convictions, arguing that (1) the introduction in evidence of a ballistics certificate violated his confrontation rights; and (2) his motion to suppress improperly was denied. On April 22, 2011, we affirmed the judgments in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Hill, 79 Mass.App.Ct. 1112 (2011). The defendant sought further appellate review, and the Supreme Judicial Court denied the application without prejudice, remanding the case to this court for reconsideration in light of Commonwealth v. Barbosa, 461 Mass. 431 (2012).
Upon reconsideration, we reverse the defendant's convictions of unlawful possession of a firearm and unlawful possession of a loaded firearm, but affirm the remaining convictions. Regarding the firearm possession convictions, we are not “satisfied, beyond a reasonable doubt, that the erroneously admitted certificate[ ] of analysis had little or no effect on [those] verdicts.” Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010). See generally Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009). Our analysis is governed by the recent Barbosa decision. In that case, a ballistics certificate erroneously was admitted, and the court was left to decide whether the error was harmless beyond a reasonable doubt. Barbosa, supra at 432. The firearm in question had been submitted, along with live rounds, to the State police laboratory for testing, and the weapon had been returned with one spent casing. Id. at 433. A police officer who stated that he was “not a firearms expert” testified that the weapon was loaded when seized, but was less definite about the significance of the spent casing, stating only that it “appear[ed]” that the ballistician had fired a test round. Id. at 435, 437. When the officer attempted to definitively state that the gun had been test-fired, the judge sustained an objection from defense counsel on the grounds that the officer lacked personal knowledge of what tests, if any, had been done. Id. at 433. In Barbosa, the officer's testimony was found not to overwhelm the erroneous admission of the certificate, and the conviction was reversed. Id. at 437. The Supreme Judicial Court emphasized that the law “require[s] additional evidence about whether a weapon is operable apart from the fact that live rounds sent for examination were returned as spent projectiles in the absence of the testimony of the person who performed the examination and test firing.” Ibid., citing Commonwealth v. Depina, 456 Mass. 238, 250–251 (2010) (evidence that spent casing was found in weapon, together with fact that live ammunition found in weapon was returned from laboratory as spent casing, overwhelmed erroneous admission of ballistics certificate).
Contrast Commonwealth v. Pittman, 76 Mass.App.Ct. 905, 907 (2010).
The Commonwealth concedes that there was no such additional evidence in this case. No spent casing was found in the weapon when it was seized. The officer who seized the weapon, Officer Sullivan, simply testified that he “believe[d]” the weapon was taken to the State police crime laboratory for testing. Sullivan identified the spent bullet returned from the laboratory as the one used to test-fire the weapon, but did so only after reading the ballistics certificate to the jury. Additionally, from the record it appears that Sullivan's knowledge of the operability of the firearm was based solely on the inadmissible ballistics certificate. Moreover, as in Barbosa, here there was no overwhelming evidence of the gun's operability apart from Sullivan's reading of the ballistics certificate. Therefore, the defendant's confrontation rights were violated, and the Commonwealth properly has conceded that admission of the certificate was not harmless beyond a reasonable doubt. The defendant, however, may be retried on both firearm possession charges. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995) (“If the evidence admitted at the trial was sufficient to send the case to the jury, but is insufficient to send the case to the jury if all improperly admitted evidence is disregarded, double jeopardy principles nevertheless do not bar a retrial”).
With respect to the unlawful possession of ammunition conviction, “there is no requirement of current functionality [of the ammunition]. The Commonwealth need not prove that ‘particular ammunition is capable of being fired’; it only must show that ‘the putative ammunition is designed for that purpose.’ “ Commonwealth v. Loadholt, 456 Mass. 411, 431 (2010), quoting from Commonwealth v. Mendes, 44 Mass.App.Ct. 903, 904 (1997). See G.L. c. 140, § 121 (definition of ammunition). Here, the bullets themselves, which were admitted in evidence, as well as the testimony from Officer Sullivan that the weapon was loaded with a magazine when seized, and that the magazine was loaded with bullets, provided overwhelming evidence that the bullets met the statutory definition of ammunition. See Commonwealth v. Muniz, 456 Mass. 166, 172–173 (2010); Commonwealth v. Velez, 82 Mass.App.Ct. 12, 18 (2012). The erroneous submission of the ballistics certificate was therefore harmless error as to this conviction.
The defendant filed a supplemental brief in this court after seeking further appellate review in which he additionally argued that the conviction of unlawful possession of ammunition was duplicative of the conviction of possession of a loaded firearm. Because the defendant failed to raise the issue at trial or on direct appeal, it has not been properly preserved for appellate review. See Commonwealth v. Munoz, 461 Mass. 126, 130 (2011). Despite this, we must still grant relief when the error creates a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002). Normally, in cases where the only evidence of ammunition allegedly possessed by a defendant was found in the weapon, possession of ammunition is a lesser included offense of possession of a loaded firearm, and therefore is duplicative. See Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). However, we conclude that our reversal of the loaded firearm possession conviction eliminates the substantial risk of a miscarriage of justice that otherwise would arise from the duplicative conviction.
The assault by means of a dangerous weapon and resisting arrest convictions also must stand, substantially for the reasons stated in the Commonwealth's brief at pages 19 through 21.
Our conclusion that the defendant's second argument is without merit is entirely unrelated to the holding in Barbosa, and remains unchanged. We still conclude that it was well within the motion judge's discretion to credit Officer C. Toledo's version of events over the version of the nightclub bouncer. See Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990); Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). The defendant's motion to suppress properly was denied.
The judgments on the charges of unlawful possession of a firearm and unlawful possession of a loaded firearm are reversed and the verdicts are set aside. The remaining judgments are affirmed.
So ordered.