Commonwealth v. Romero

• Decision Date: 14 November 2011
• Docket Number: No. 09–P–1926.,09–P–1926.
• Citation: 80 Mass.App.Ct. 791,956 N.E.2d 1250
• Parties: COMMONWEALTHv.Eric ROMERO.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 791

956 N.E.2d 1250

COMMONWEALTH

v.Eric ROMERO.

No. 09–P–1926.

Appeals Court of Massachusetts, Middlesex.

Argued Oct. 20, 2010.Decided Nov. 14, 2011.

Devon Dietz Hincapie, Boston, for the defendant.Ceara C. Mahoney, Assistant District Attorney, for the Commonwealth.Present: RAPOZA, C.J., CYPHER, TRAINOR, MEADE, & SIKORA, JJ.¹MEADE, J.

After a jury trial, the defendant was convicted of carrying a firearm without a license, in violation of G.L. c. 269, § 10( a ). On appeal, he claims that (1) there was insufficient evidence to support his conviction, (2) the admission of a ballistics certificate in evidence violated his confrontation rights, and (3) his statements to the police were improperly admitted in evidence. We affirm.

1. Background. a. The Commonwealth's case. On April 23, 2008, at approximately 1:30 a.m., Sergeant Dennis M. Deveney, Jr., of the Waltham police department was on patrol in the area of Moody Street. Deveney's attention was drawn to a small, black BMW two-door sports coupe parked on Chestnut Street, which intersects with Moody Street. The car held four individuals. When Deveney drove past the car, he could only see the tops of their heads, and they were all slouched down low in their seats. Although Moody Street was well lit during the early morning, Chestnut Street was much darker.

Deveney also saw that the car's interior dome light was on, but as he drove past the car in his marked police cruiser, the light was extinguished. Within a couple of minutes, Deveney turned around and drove back to Chestnut Street and parked thirty feet behind the car to further observe the car and its occupants. Without activating his blue lights, Deveney got out of his cruiser and walked toward the car. He approached the car on the passenger side. When he reached the vehicle, he stood about three to five feet away and looked inside at the occupants. The front passenger's window was cracked open about two inches and Deveney could hear music playing. From his observation point, Deveney could see the rear driver's-side passenger reach toward the front of the car through the middle of the two front seats. While this occurred, Deveney saw the defendant, who was the owner and operator of the car, looking from side to side and watching the front seat passenger, Eduardo Alvarez, examining an object in his hand. The defendant was seated between twelve and eighteen inches away from Alvarez.

At this point, Deveney shined his flashlight into the vehicle's interior and said something to the effect of, “Hey, what's going on guys?” Alvarez turned toward Deveney with a panicked look on his face and dropped the object he was holding into his lap. When Deveney trained the light on the object, he could see it was a black handgun. Deveney opened the car door, drew his service weapon, pointed it at Alvarez, and called for backup. When backup arrived, the occupants were removed from the car.

Deveney removed the defendant to an area about thirty feet away from the car. The defendant claimed that he had no knowledge that there was a firearm in his car, nor did he know that it was being passed around. The defendant did admit that he knew that, in general, Alvarez had a gun, but he did not know that Alvarez had it in the car that night. The defendant also admitted that he had been at Alvarez's Chestnut Street home earlier that afternoon around 4:00 p.m. He told Deveney Alvarez had handed him a gun outside the home, which the defendant held for ten to fifteen seconds before he returned it to Alvarez. The defendant was then arrested.

Officer Kevin Sullivan took custody of the gun at the scene and determined that it was unloaded. Deveney returned with an evidence bag, and Sullivan placed the gun in the bag. Deveney took control of the weapon at that time. At the police station later that morning, Sullivan had an opportunity to look at the gun again. He saw that the gun's serial number had been filed off and covered in black paint. After Sullivan saw this, Deveney secured the gun with a cable lock, put the gun back into the evidence bag, placed the bag in a gun box, and placed it into evidence storage at the Waltham police department. The gun was later sent to the State police crime laboratory to determine whether it was capable of discharging a live round of ammunition. When the gun was returned to the Waltham police department in the same evidence bag, it was accompanied by a small manila envelope containing a discharged round of ammunition. Also accompanying the gun was the State police ballistician's certificate, which indicated that the firearm had been test fired and that it was an operating firearm.

b. The defense. The defendant testified that he had left work around 4:30 p.m. on April 23, 2008, to take his girlfriend out to dinner. While waiting in his vehicle at the curb of his girlfriend's house, the defendant was approached by his girlfriend's brother, Eduardo Alvarez. Alvarez walked around to the driver's side window and showed the defendant a firearm. The defendant looked at the firearm, touched it, and returned it to Alvarez. The defendant then left with his girlfriend on their dinner date in Boston.

Around midnight, the defendant drove his girlfriend back to her home. When they arrived back at her house, her two brothers, including Alvarez, were waiting outside. Alvarez asked the defendant to take the two brothers for a ride in his new car, and the defendant agreed. A short time later, the defendant drove back to the house and pulled up to the curb where he had earlier parked. According to the defendant, the police arrived just as his girlfriend's brothers were preparing to exit the vehicle.

The defendant had seen the police drive by him on Moody Street, but he was unconcerned as he was not doing anything wrong. Within a few minutes, the defendant testified, Deveney was asking them what they were doing. He denied knowing the gun was in the car, and did not see it in the car. The defendant acknowledged that he told Deveney that he had seen the gun earlier that day.

2. Discussion. a. Sufficiency of the evidence. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152

[718 N.E.2d 398]

(1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 [99 S.Ct. 2781, 61 L.Ed.2d 560] (1979). See Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 475

[892 N.E.2d 805]

(2008). Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677

[393 N.E.2d 370]

(1979), quoting from Jackson v. Virginia, supra.” Commonwealth v. Pixley, 77 Mass.App.Ct. 624, 630, 933 N.E.2d 645 (2010).

Here, the Commonwealth's case against the defendant was presented on the theory of constructive possession. To prove constructive possession of a firearm, the Commonwealth must establish the defendant's “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Sespedes, 442 Mass. 95, 99, 810 N.E.2d 790 (2004), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). A defendant's “knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). In constructive possession cases, a defendant's presence alone is not enough to show knowledge, or the ability and intention to exercise control over the firearm, but “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir.1976).

The defendant first claims that there was insufficient evidence to support the inference that he had knowledge of the firearm. We disagree. In the light most favorable to the Commonwealth, Sergeant Deveney observed the firearm in the defendant's car, on the lap of his front seat passenger, while the defendant was sitting in the driver's seat a little more than a foot away. This was sufficient to establish the defendant's knowledge of the weapon. See Commonwealth v. Albano, supra at 135, 365 N.E.2d 808 (“Knowledge may be inferred when the prohibited item is found in open view in an area over which the defendant has control”). In addition, from Sergeant Deveney's testimony, a rational jury could infer that the gun was being passed around the interior of the vehicle. “Although not overwhelming, taken in the light most favorable to the Commonwealth, this evidence provided a sufficient basis for a juror to infer that the defendant knew about and had the ability to exercise dominion and control over [the firearm] ....” Commonwealth v. Frongillo, 66 Mass.App.Ct. 677, 681–682, 850 N.E.2d 1060 (2006).

The defendant next claims that there was insufficient evidence to establish that he had the ability and intent to exercise dominion and control over the firearm. Again, we disagree. In addition to the defendant's presence in the car and his knowledge of the gun, there was other incriminating evidence, i.e., “plus factors,” to warrant the inference that the defendant intended to exercise control over the firearm. See Commonwealth v. Brown, 34 Mass.App.Ct. 222, 226, 609 N.E.2d 100 (1993). Primary among the other incriminating evidence were two important plus factors: the defendant was the owner and operator of the car in which...