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12-P-1922 Appeals Court
COMMONWEALTH vs. STEPHEN M. INDRISANO.
No. 12-P-1922.
Essex. October 1, 2014. - August 4, 2015.
Present: Berry, Hanlon, & Carhart, JJ.
Firearms. Evidence, Firearm, Presumptions and burden of proof,
Rebuttal, Argument by prosecutor, Prior inconsistent
statement, Consciousness of guilt. License. Practice,
Criminal, Presumptions and burden of proof, Affirmative
defense, Instructions to jury, Affidavit, Admissions and
confessions, Argument by prosecutor.
Complaint received and sworn to in the Lynn Division of the
District Court Department on March 19, 2009.
The case tried before Stacey Fortes-White, J., and a motion
for a new trial was heard by her.
Mark G. Miliotis for the defendant.
Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
HANLON, J. After a jury trial, the defendant was convicted
of possession of a firearm and possession of a loaded firearm,
2
both without a license.1 His motion for a new trial was denied.2
On appeal, his chief arguments are the following: (1) the judge
improperly shifted the burden of proof with respect to his
affirmative defense of "licensure"; (2) it was error for the
judge to give a consciousness of guilt instruction; (3) it was
error to allow the Commonwealth to offer rebuttal evidence; (4)
the prosecutor's cross-examination of the defendant with his
prior inconsistent statements was improper, as was the
prosecutor's summation referring to that evidence; and (5) the
judge erroneously denied the defendant's motion for new trial.
We affirm.
Background. On March 18, 2009, Sergeant Richard Ball of
the Massachusetts State Police stopped the defendant in his GMC
pickup truck near the intersection of Route 107 and Route 60 in
Saugus.3 When Ball activated the lights and siren on his
unmarked police cruiser, the defendant immediately slowed and
pulled over to the right shoulder. However, he then traveled
another five hundred feet before coming to a complete stop. As
the truck slowed, Ball was driving immediately behind it; he
1
On the first day of trial, the charge of possession of
ammunition without a firearm identification card was dismissed
at the request of the Commonwealth.
2
Both appeals were combined in the one docket number.
3
The defendant was stopped for a civil motor vehicle
infraction -- changing lanes and making a left turn without
signaling.
3
observed, through the large window in the back of the truck cab,
the defendant reach his arm behind the "split bucket" passenger
seat. The defendant's arm and shoulder were moving up and down,
and he appeared to be "covering something up" that was in back
of the seat.
Approaching the passenger's side of the defendant's truck,
Ball said to the defendant, "[S]how me your hands"; the
defendant complied. When Ball asked whether the defendant had
any weapons, the defendant replied that he had a knife in his
pocket. Ball asked the defendant to get out of the truck so
that Ball could "pat him down and check for weapons for [Ball's]
safety." Ball then recited to the defendant his Miranda rights.
After acknowledging that he understood his Miranda rights,
the defendant told Ball that there was a gun in the tool bag
behind the seat of the trunk. Ball found the loaded gun where
the defendant said it would be, covered by a T-shirt. The
defendant also stated that "it was his son's gun," and that he
needed it for "transport[ing] a lot of money." Ball arrested
the defendant, secured the loaded gun, and took it back to the
State police barracks in Revere.4
Prior to trial, the defendant moved to dismiss the firearms
charges, arguing that his constitutional rights were violated by
4
Afterwards, the gun was transported to the ballistics lab
for testing, where it was test fired and proved to be a firearm
loaded with five rounds of ammunition. See G. L. c. 140, § 121.
4
the Massachusetts statutes regulating possession of firearms and
by the Massachusetts firearms licensing statutes. In support of
the motion to dismiss and the motions to reconsider the judge's
denial of his motion to dismiss, the defendant filed at least
two affidavits in which he recited that, in 1998, when he sought
to renew his expired license to carry a firearm, the chief of
police in Winthrop told him that his license would not be
renewed.
The Commonwealth filed a motion in limine, seeking to
preclude the defendant's affirmative defense of license. In
response, the defendant and his attorney represented in
affidavits that the defendant's earlier affidavits were
mistaken. The defendant's new position was that, when he went
to the Winthrop police station to renew his license, the
information he received meant only that there was no need to
apply at that time, not that his application was denied. The
judge denied the Commonwealth's motion in limine. Thereafter,
the defendant testified at trial that he was surprised when Ball
arrested him because he had a license to carry a firearm,
5
although he knew at the time that the license had expired.5 He
was convicted of both counts.6
Discussion. 1. Affirmative defense.7 The defendant argues
that the judge improperly shifted the burden of proof with
regard to his affirmative defense of license. He contends that
providing his expired license was sufficient to raise the
affirmative defense and that the burden then shifted to the
Commonwealth to disprove the defense beyond a reasonable doubt.
The defendant also asserts that the judge improperly instructed
the jury on his affirmative defense, causing confusion about the
burden of proof.
It is "an offense to 'knowingly' possess a firearm outside
of one's residence or place of business without also having a
license to carry a firearm that has been issued under the
5
Trial exhibit two was the defendant's license to carry a
firearm; it expired in 1993. Trial exhibit three was his
renewed license that expired in 1998.
6
There are no issues before this court relating to the
stop, the seizure of the gun, or whether the gun was a firearm,
as defined by the statute. See G. L. c. 140, § 121.
7
As a preliminary matter, we reject the Commonwealth's
argument that the defendant "never complied with the procedural
rules to raise an affirmative defense." In advance of trial, at
least by the time of the hearing on the Commonwealth's motion in
limine, the Commonwealth was on notice that the defendant would
argue that he was subject only to civil penalties because he had
an expired license and he had never filed an application that
was denied. The defendant's first affidavit to that effect was
filed in court on January 27, 2012. The trial began on February
15, 2012, and it does not appear from the record before us that
the Commonwealth sought additional time to rebut the defense.
6
licensing provisions of G. L. c. 140, § 131." Commonwealth v.
Powell, 459 Mass. 572, 588 (2011), cert. denied, 132 S. Ct. 1739
(2012). See G. L. c. 269, § 10(a). "[A] defendant charged with
a possessory firearms offense [under G. L. c. 269, § 10,] can
raise the defendant’s own license as a defense." Commonwealth
v. Humphries, 465 Mass. 762, 767 (2013). "Such a defendant
must, prior to trial, provide notice of intent to raise the
defense of license, . . . and must produce 'some evidence' of
license at trial before the burden shifts to the Commonwealth to
prove the absence of the defendant's license beyond a reasonable
doubt." Ibid. See Commonwealth v. Gouse, 461 Mass. 787, 806
(2012); Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518
(2004).8 A limited exemption is available under G. L. c. 140,
8
In Humphries, the defendant was charged as a joint
venturer with a codefendant who possessed (and fired) the
firearm at issue. Id. at 763. In that circumstance, the court
concluded: "[T]he reasons that support allocating to a defendant
the burden to produce evidence of a firearms license, where the
defendant is charged with actual possession of a firearm without
a license, do not support allocating this burden to a defendant
charged as a joint venturer of unlicensed possession of a
firearm, where the firearm is actually possessed by a third
party. '[I]imposing the burden of production on a joint venturer
in these circumstances might be unfair because he would be in no
better position than the prosecutor to ascertain whether an FID
card [or license] had been issued to the person who allegedly
possessed the ammunition [or carried the firearm].'" Id. at
770, quoting from Gouse, supra at 807 n.20. Because the
existence of a license establishing a third party's lawful
authority to carry a firearm does not fall 'peculiarly within
the knowledge of the defendant on which he can fairly be
required to adduce supporting evidence,' Commonwealth v. Vives,
[447 Mass. 537, 540-541 (2006)], quoting Commonwealth v. Cabral,
7
§ 131(m), which "offers a safe harbor from potential criminal
sanctions to certain gun owners whose licenses have expired."
Commonwealth v. Farley, 64 Mass. App. Ct. 854, 857 (2005).
Under G. L. c. 140, § 131(i), as amended through St. 2004,
c. 150, § 11, "[a] license to carry or possess firearms shall be
valid, unless revoked or suspended, for a period of not more
than 6 years from the date of issue . . . except that if the
licensee applied for renewal before the license expired, the
license shall remain valid for a period of 90 days beyond the
stated expiration date on the license, unless the application
for renewal is denied [or other exceptions not here relevant
apply]". However, under G. L. c. 140, § 131(m), inserted by St.
1998, c. 180, § 41, once the ninety-day "safe harbor" period
expires, the former licensee still is subject only to a civil
fine "and the provisions of section 10 of chapter 269 shall not
[443 Mass. 171, 179 (2005)], it does not constitute an
affirmative defense to joint venture possession of a firearm.
See generally Commonwealth v. Cabral, supra at 180.
Consequently, the affirmative defense of license provided by
G. L. c. 278, § 7, is inapplicable in the circumstances of this
case." Humphries, supra at 770.
The defendant, quoting from Cabral, supra at 180, argues
that we should extend this reasoning to his situation, on the
ground that "the existence of an expired firearms license and
the applicability of the exemption is not something 'peculiarly
within the knowledge of the defendant.'" We are not persuaded
that the analogy applies. As the Commonwealth argues, the
circumstances of the 1998 expiration were within the defendant's
knowledge -- he not only filed affidavits about it, he produced
the expired licenses, and he was in the best position to say
whether he had applied to renew his license and been denied.
8
apply." On the other hand, the statute provides an exception to
that provision if:
"(i) such license has been revoked or suspended, unless
such revocation or suspension was caused by failure to give
notice of change of address as required under this section;
(ii) revocation or suspension of such license is pending,
unless such revocation or suspension was caused by failure
to give notice of a change of address as required under
this section; or (iii) an application for renewal of such
license has been denied" (emphasis supplied).
Ibid.
The first issue here is who had the burden of production
under all of the circumstances of this case, and what that
burden entailed. During the Commonwealth's case-in-chief, the
defendant, while cross-examining Ball, introduced evidence of,
inter alia, the defendant's firearm license history
"indicat[ing] that he had a license to carry a firearm that was
issued in 1993 and expired in 1998." There was no evidence that
the defendant had applied for a license and been denied. At the
close of the Commonwealth's case, the defendant apparently filed
a motion for a directed verdict of not guilty. The record does
not indicate what the judge heard from the defendant in support
of his motion.9
9
The trial transcript indicates only that defense counsel
told the judge that he had "a motion," that the parties were
heard "at sidebar," and that the "[e]ntire discussion at sidebar
[was] completely inaudible . . ., sidebar microphone not turned
on."
9
If it were the defendant's burden to produce some evidence
that he qualified for the G. L. c. 140, § 131(m), civil
sanction, rather than the penalties provided by G. L. c. 269,
§ 10, he did not meet it. On the other hand, if, as the
defendant argues, production of his expired license satisfied
his burden of production and shifted the burden of proof to the
Commonwealth, the motion for a required finding should have been
allowed. We are satisfied that this court's holding in
Commonwealth v. Farley, supra at 862, provides the answer: "the
burden was on the defendant to present sufficient evidence to
contest the presumed fact that he had no justification for his
lack of license" (emphasis supplied). The expired license
itself, without some evidence that the defendant had never been
denied a new license, was therefore insufficient.
During the defendant's case, the defendant testified not
only that he had an expired license but also that he had never
applied to renew the license; that he had never "receive[d]
notice of a denial of an application"; and that his license had
"[n]ever" "been revoked or suspended at any point in time."
This evidence satisfied the defendant's burden of production.
See id. at 863. ("Viewed favorably to the defendant, this
evidence was sufficient to raise the affirmative defense and
thereby to shift to the Commonwealth the burden of establishing
beyond a reasonable doubt that the defense did not exist").
10
On cross-examination, the prosecutor read from the
defendant's earlier affidavit, filed in support of his motion to
dismiss, which stated that the defendant was "qualified to be
licensed to carry a firearm and [had] previously been issued
licenses up to November 14th '98 when the chief of the Winthrop
Police Department unlawfully and arbitrarily denied the renewal
of [his] license."10 The defendant agreed that he had signed the
affidavits and that they represented his understanding at the
time that he signed them, but he went on to say that "there was
a misunderstanding of [his] interpretation of what was told to
[him]."
Nevertheless, at that point, the defendant had agreed that
he had filed affidavits swearing that his application for a
renewal of his firearms license had been denied. As a result,
those prior affidavits properly were considered as substantive
evidence, admissible as prior admissions of an opposing party.11
10
The prosecutor also read from a second affidavit, wherein
the defendant stated, "I am qualified to be licensed to carry a
firearm and was also eligible on November 14th '98 when the
chief of the Winthrop Police Department utilized unlawful and
arbitrary criteria in denying the renewal of my license."
11
Defense counsel objected when the prosecutor first
mentioned the affidavits, but did not explain to the judge the
basis for his objection. See Mass. G. Evid. § 103(a)(1) (2014).
Nor did he object further to the use of the affidavits, except
once, when the prosecutor asked the defendant whether his trial
testimony was different from the affidavits, and defense counsel
stated, "I'd object to the characterization, Judge. It speaks
for itself." It does not appear from the record before this
11
See Smith v. Palmer, 60 Mass. 513, 520-521 (1850) ("The
admissions of a party are not open to the same objection which
belongs to parole evidence from other sources. A party's own
statements and admissions are, in all cases, admissible in
evidence against him, though such statements and admissions may
involve what must necessarily be contained in some writing");
Mass. G. Evid. §§ 801(d)(2)(A), 1007 (2014). Despite the
defendant's efforts to explain the contradictory affidavits, the
issue thereafter was one for the jury.12 We see no error.
2. Rebuttal testimony. The defendant next argues that the
Commonwealth should not have been permitted to offer rebuttal
evidence. In the defendant's view, that evidence did not
respond to his evidence, but, instead, provided the Commonwealth
court that the defendant ever requested an instruction limiting
the use of the affidavits to impeachment. See id. at § 105.
12
In rebuttal, the Commonwealth called Jason Guida,
director of the Firearms Records Bureau. Guida testified that
the records of his agency showed only that the defendant had two
expired licenses, the most recent expiring in 1998. He also
stated that the records were incomplete, particularly regarding
events that occurred prior to 2004, when the Bureau undertook to
maintain licensing information indefinitely. Licensing
authorities, including police departments, were "only required
to maintain licensing information for six years." Guida also
testified that, while the Bureau attempts to update its records
when older, paper records are discovered, "it was a paper
process and there were times when files were not transmitted to
[his] office and entered into . . . [what he] call[ed] the
Legacy Database." Guida testified, "[I]n this case as you're
describing, if the chief or licensing officer told the
individual that he is denied but did not issue a denial letter
and send it to the Firearms Records Bureau, [the Bureau] would
not have a record of it."
12
with an opportunity to supplement what should have been
presented in its case-in-chief. This argument also fails. It
is premised on the defendant's earlier argument that it was the
Commonwealth's burden to produce evidence in its case-in-chief
that the defendant was not shielded from the criminal
consequences of G. L. c. 269, § 10, by the exception provided by
G. L. c. 140, § 131(m). As noted, we rejected that argument,
concluding that the defendant had the burden of producing
evidence that he faced only the civil penalties described in
§ 131(m). Once he did so, the Commonwealth properly was given
an opportunity to rebut that evidence. See Commonwealth v.
Howell, 49 Mass. App. Ct. 42, 50-51 (2000) ("The trial judge had
broad discretion to allow the Commonwealth to introduce evidence
that rebutted the defendant’s theory of defense").
3. Closing argument; prosecutor's use of inconsistent
statements. The defendant also challenges the prosecutor's use
during closing argument of his prior inconsistent statements.
We see no error. "The rule of evidence is well settled that if
a witness either upon his direct or cross-examination testifies
to a fact which is relevant to the issue on trial the adverse
party, for the purpose of impeaching his testimony, may show
that the witness has made previous inconsistent or conflicting
statements, either by eliciting such statements upon cross-
examination of the witness himself, or proving them by other
13
witnesses." Commonwealth v. Parent, 465 Mass. 395, 399-400
(2013), quoting from Robinson v. Old Colony St. Ry., 189 Mass.
594, 596 (1905). See Mass. G. Evid. § 613(a)(2). In addition,
as discussed supra, once the defendant adopted during his cross-
examination his statements made in earlier affidavits, they
became admissible substantively as admissions of a party
opponent.
4. Jury instructions. The defendant also argues that the
judge improperly instructed the jury on the defendant’s
affirmative defense of licensure and that giving a consciousness
of guilt instruction was inappropriate. "We review jury
instructions with regard to the Commonwealth's burden of proof
in a criminal case to determine whether the instructions, taken
as a whole, make clear the Commonwealth's burden to prove each
element of the crime beyond a reasonable doubt." Commonwealth
v. Hoose, 467 Mass. 395, 412 (2014).
a. Affirmative defense instruction. As to the affirmative
defense, the judge instructed the jury:
"The statute exempts a defendant from criminal
punishment who had, in effect, a license to carry a firearm
issued at the time of his arrest. Section 131(m) of
Chapter 140 exempts a defendant from criminal penalties and
instead imposes a civil penalty when certain conditions are
met. This exemption is intended to exempt from the
imposition of criminal sanctions, those who[se] licenses
became invalid inadvertently but who would otherwise not be
disqualified from holding a valid license.
14
"The defendant is entitled to the criminal exemption
if his license to carry was expired and he had not sought
renewal of the license and he had not been notified of any
revocation or suspension of the license or denial of a
renewal application. As fact finders, you must determine
from all of the credible evidence . . . whether the
defendant had, in effect, a license to carry firearms under
General Laws 140 and if he did, whether the Commonwealth --
and this is the additional element that they must prove
with regard to the two offense[s] before the Court, whether
the Commonwealth has disproved beyond a reasonable doubt
that this exemption applies to the defendant. Once
sufficient evidence of the defense is presented, it is the
Commonwealth's burden to establish beyond a reasonable
doubt that the defense does not exist."
The defendant did not object to the substance of the
instruction.13 On appeal, he argues primarily that the
"instruction placed the determination as to the defendant's
meeting his burden of production, a legal issue already ruled
upon by the court, back in the jury's hands for its
consideration without any advice as to how to make that
determination." We disagree. While the burden of production
13
After the judge's instructions, the "[e]ntire discussion
at sidebar [was] inaudible . . ., sidebar microphone not turned
on." At the earlier charge conference, which was lengthy,
whatever objections the defendant had did not emerge, apart from
an objection to the use of the word "inadvertently." On appeal,
the defendant argues that "[t]he introduction of the term
'inadvertent' in the instructions without explanation also could
have confused the jury." The word "inadvertently," as the
Commonwealth notes, is taken from Farley, 64 Mass. App. Ct.
at 858 ("It is apparent from the language of G. L. c. 140,
§ 131(m), and the firearms licensing scheme as a whole,
particularly when considered in light of legislation that was
enacted within the same time frame, that the Legislature
intended to exempt from the imposition of criminal sanctions
those whose licenses became invalid inadvertently, but who would
otherwise not be disqualified from holding a valid license").
We see no error.
15
was, indeed, a legal issue for the judge, the question whether
the Commonwealth had met its burden of disproving the
defendant's affirmative defense was for the jury, as the judge
properly instructed.
In addition, use of the expression "[o]nce sufficient
evidence of the defense is presented" was not error. The words
did not imply that the evidence must come from the defendant, or
that it was his burden to produce evidence of his defense. Cf.
Commonwealth v. Colantonio, 31 Mass. App. Ct. 299, 308 (1991)
("[T]he charge as a whole conveyed to the jury that the burden
remained with the Commonwealth throughout to prove beyond a
reasonable doubt that the defendant did not [qualify for the
G. L. c. 140, § 131(m) exception]").
b. Consciousness of guilt instruction. The defendant also
challenges the consciousness of guilt instruction, as he did at
trial. The basis for the argument appears to be that there was
no evidence from which an inference of consciousness of guilt
could reasonably be drawn. A consciousness of guilt instruction
may be given where "there is an 'inference of guilt that may be
drawn from evidence of flight, concealment, or similar acts,'
such as false statements to the police, destruction or
concealment of evidence, or bribing or threatening a witness."
Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting
from Commonwealth v. Toney, 385 Mass. 575, 584 (1982). "To
16
determine whether a consciousness of guilt instruction is
warranted, a judge need only assess the relevancy of the
evidence." Commonwealth v. Morris, 465 Mass. 733, 738 (2013).
Here, Ball testified that, before he came to a complete
stop, the defendant slowly traveled another 500 feet while Ball
observed the defendant's arm and shoulder moving up and down in
an apparent attempt to cover something behind the passenger's
seat. In addition, in response to Ball's inquiry about whether
he had any weapons, the defendant said only that he had a knife,
and not that he had the gun he knew was in the tool bag behind
the seat. This evidence permitted the prosecutor to argue, as
she did, that the defendant knew when he was stopped that he was
not authorized to possess a firearm. There was no error.14
5. Motion for new trial. We review the denial of a motion
for new trial "only to determine whether there has been a
significant error of law or other abuse of discretion."
14
The defendant also argues that permitting Ball's
testimony relating to gang activity, his description of the
defendant's "furtive gestures," and also prior intelligence
regarding the defendant's firearm license status was prejudicial
error. These claims are without merit. With regard to "gang
activity," Ball testified only that he was assigned to the gang
unit as part of establishing his experience and training. He
said nothing about the defendant participating in any gang
activity. In addition, Ball never stated that the defendant
made furtive gestures prior to coming to a stop, but merely
testified as to his observations of the defendant's shoulder and
arm moving up and down in an effort to cover something behind
the seat. Finally, Ball's testimony that he knew that the
defendant did not have a valid firearm license was stricken and
the jurors were told to disregard it. There was no error.
17
Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See
Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). "A
motion for new trial 'is addressed to the sound discretion of
the trial judge, and . . . will not be reversed unless it is
manifestly unjust, or unless the trial was infected with
prejudicial constitutional error.'" Acevedo, supra, quoting
from Commonwealth v. Tennison, 440 Mass. 553, 566 (2003). "A
reviewing court extends special deference to the action of a
motion judge who was also the trial judge." Commonwealth v.
Rosario, 460 Mass. 181, 195 (2011), quoting from Grace, supra.
After review, we are satisfied that the trial judge did not
abuse her broad discretion in denying the defendant's motion for
a new trial.15
Judgment affirmed.
Order denying final corrected
motion for new trial
affirmed.
15
We have carefully considered the remaining issues raised
in the defendant's brief and find them to be without merit.