Commw. v. Jordan, P-632
| Decision Date | 25 September 2000 |
| Docket Number | P-632 |
| Citation | 50 Mass. App. Ct. 369,737 N.E.2d 511 |
| Parties | (Mass.App.Ct. 2000) COMMONWEALTH vs. ANTHONY JORDAN 99- Suffolk County Argued: |
| Court | Appeals Court of Massachusetts |
Evidence, Firearm, Authentication. Firearms
Complaint received and sworn to in the Dorchester Division of the District Court Department on April 14, 1997.
The case was tried before Sarah B. Singer, J.
Neil V. Golden for the defendant.
Dean A. Mazzone, Assistant District Attorney, for the Commonwealth.
On February 12, 1997, around 10 P.M. in response to reports of repeated gunfire, Boston police responded to an address on Fuller Street in Dorchester and found the defendant lying on the ground with a gunshot wound to his chest. His hands were beneath him, under his back. He could not remove them, and when emergency medical technicians rolled him over to put him on a stretcher, they found a .22 caliber revolver under the small of his back, with three spent cartridges and two live cartridges. (One chamber was empty.) When interviewed by police at Boston Medical Center two weeks later, on being told that they were planning to charge him with unlawful possession of a firearm, the defendant gave this version of events on the night of the shooting. He had been accosted by a stranger who had pulled out a gun and demanded the defendant's jewelry and money. The defendant resisted, grabbing for the assailant's gun. In the ensuing struggle, the defendant was shot but he managed nonetheless to wrest the gun from the assailant. The latter fled, and the defendant fired two shots at him but failed to stop his flight.
The defendant, convicted of unlawful possession of a firearm and unlawful possession of ammunition, appeals, raising one issue: that it was error to admit in evidence a .32 caliber bullet purportedly removed surgically from the defendant's chest, for want of proper authentication. No objection was taken to its admission; the defendant argues, however, that the evidence substantially demolished his story that the bullet removed from his chest had been fired from the .22 caliber revolver with whose possession he was charged, and that, under the standard laid down in Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), its erroneous admission led to a miscarriage of justice.
The authentication claim arises from there having been no medical testimony to the effect that the bullet handed over to Detective Houston by a nurse on the operating floor, and then submitted by him to ballistics, was the bullet that the medical records substantiate was removed from the defendant's chest the day before. The medical record states that the operation was elective surgery to remove a bullet that had lodged in the defendant's chest six months earlier (the operation was on August 29, 1997) and that a bullet described as .38 caliber was retrieved. Detective Houston testified that he received a call to respond to Boston Medical Center, went there, and met on the operating floor with a nurse who turned over to him a bullet that he marked and sent to ballistics for testing. It turned out to be .32 caliber. On defense counsel's objection, the judge struck an answer in which Detective Houston claimed that he knew the bullet came from the defendant, and counsel argued in closing that it was speculation to assume the bullet had come from the defendant's chest in the absence of medical evidence to that effect.
It is clear, therefore, that defense counsel was well...
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