Commonwealth v. Drapaniotis

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14-P-754 Appeals Court

COMMONWEALTH vs. ALEXANDRIA DRAPANIOTIS.

No. 14-P-754.

Middlesex. December 30, 2015. - April 1, 2016.

Present: Kafker, C.J., Cypher, Berry, Green, & Blake, JJ.1

Firearms. Evidence, Firearm, Hearsay.

Indictments found and returned in the Superior Court
Department on September 28, 2010.

The cases were tried before Thomas A. Billings, J., and
following a mistrial, the remaining cases were tried before
Bruce R. Henry, J.

David J. Rotondo for the defendant.
Emily Kathleen Walsh, Assistant District Attorney, for the
Commonwealth.

BERRY, J. Presented in this appeal are the defendant's

three convictions arising out of her stealing firearms owned by

1
This case was initially heard by a panel comprised of
Justices Berry, Green, and Blake. After circulation of a
majority and dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Kafker and Justice Cypher. Following the expansion of the
panel, the court ordered a rehearing of the case before the
expanded panel. See Sciaba Constr. Corp. v. Boston, 35 Mass.
App. Ct. 181, 181 n.2 (1993).
 2

her father,2 and then selling or trading the firearms for drugs.

There were five indictments, involving three different firearms.

There were two trials. The first trial resulted in one

conviction, one verdict of not guilty, and a mistrial by jury

deadlock on the three other indictments. In the second trial,

convictions entered on those three remaining indictments, and

those convictions are pending in this appeal.3

The three convictions on appeal and the two particular

firearms at issue are as follows: (a) on one indictment (count

3), the defendant was convicted under G. L. c. 266, § 30(1), of

larceny of a Smith and Wesson .45 caliber pistol (hereinafter

the .45); (b) on another indictment (count 1), the defendant was

convicted under G. L. c. 266, § 30(1), of larceny of a .38

caliber handgun (hereinafter the .38); and (c) on yet another

2
Because the defendant and her father share a surname, we
will refer hereafter to Alexandria Drapaniotis as the defendant,
and to her father, John Drapaniotis, as Drapaniotis.
3
Even though the conviction from the first trial is not
before us, given the lack of specification concerning the
particular firearm in most of the five indictments, it is
helpful to align each firearm with the respective indictment
count and its disposition first or second trial. In the first
trial, the defendant was convicted of larceny of a .40 caliber
firearm under G. L. c. 266, § 30(1). That conviction was not
appealed, and the .40 caliber firearm is not one of the two guns
that underlie the convictions in this appeal.

Further, in the first trial, the defendant was found not
guilty of possession of a loaded firearm, a Smith and Wesson .45
caliber firearm, under G. L. c. 269, § 10(n). That .45 caliber
firearm is at issue in two of the convictions in this appeal --
all as further described in this opinion.
 3

indictment (count 4), the defendant was convicted under G. L.

c. 269, § 10(a), of unlawful possession of the .45 without a

license, whether said firearm was loaded or unloaded.

Each applicable firearm statute -- G. L. c. 266, § 30(1),

and G. L. c. 269, § 10(a) -- requires proof that the subject

firearm was operable, i.e., that it was a firearm "from which a

shot or bullet can be discharged."4

4
The larceny statute, G. L. c. 266, § 30(1), inserted by
St. 1968, c. 737, § 10, requires, in pertinent part, the
Commonwealth to prove the firearm is as defined in G. L. c. 140,
§ 121:

"Whoever steals . . . the property of another as defined by
this section . . . shall be guilty of larceny, and shall,
if the property stolen is a firearm, as defined in section
one hundred and twenty-one of chapter one hundred and
forty, . . . be punished . . ."

(emphasis added). In turn, G. L. c. 140, § 121, as amended by
St. 1998, c. 180, § 8, incorporated in the larceny statute,
defines an operable firearm as

"a pistol, revolver or other weapon of any description,
loaded or unloaded, from which a shot or bullet can be
discharged and of which the length of the barrel or barrels
is less than 16 inches or 18 inches in the case of a
shotgun as originally manufactured . . ."

(emphasis added). Under G. L. c. 269, § 10(a), as amended by
St. 1990, c. 511, § 2, it is a criminal offense to possess a
firearm without a license. The statute provides that

"[w]hoever, except as provided or exempted by statute,
knowingly has in his possession; or knowingly has under his
control in a vehicle; a firearm, loaded or unloaded, as
defined in section one hundred and twenty-one of chapter
one hundred and forty"
 4

In this case, the sole issue on appeal is directed to

whether the Commonwealth met its burden of proof on operability

of the .45 and the .38 by sufficient and competent evidence.

Because the two firearms were never recovered following the

defendant's selling or trading of them, there was no ballistics

analysis. Nor, of course, was either the .38 or the .45

introduced in evidence as an exhibit. Thus, proof of

operability rested on Drapaniotis's trial testimony.5 Having

reviewed that trial testimony, we conclude that the defendant's

convictions of larceny of the .45 and unlawful possession of the

.45 without a license were supported by sufficient competent

evidence, including as to operability. This follows in

particular because Drapaniotis testified that he fired the .45.

There is no such evidence concerning the .38. Indeed,

reduced to the evidentiary core, only two words in Drapaniotis's

testimony are directed to the precise issue of proof of this

element of operability, that is, whether the .38 was capable of

discharging a bullet. The prosecutor questioned: "Who said it

worked?" Drapaniotis answered: "The dealer." (The short

context in which this question and answer fell in a five

shall be guilty of this offense unless one of several exemptions
apply, including an exemption for having obtained a license to
possess said firearm.
5
See Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985);
Commonwealth v. Muniz, 456 Mass. 166, 171 (2010).
 5

question/five answer sequence is quoted in full, infra). This

testimony, including even the five-question, five-answer

context, does not constitute either competent evidence or

sufficient evidence of proof of an essential element of the

firearm criminal statutes. Further, as discussed herein, the

salesman statement came into evidence only because defense

counsel failed to object to what was clearly objectionable: its

double hearsay nature and lack of foundation. Therefore, no one

knows (and there is no proof of) how or whether the salesman had

any basis in personal knowledge or any other basis in fact to

serve as a separate foundation (such as a manufacturer's test

report or certification) to support that of which he randomly

spoke.

Discussion. Although the prosecutorial burden to prove

that a firearm is operable and capable of discharging a bullet

and thus is a "firearm" as defined in the criminal statutes may

not be a heavy one, significantly, it is a burden that rests on

"competent evidence." Commonwealth v. Loadholt, 456 Mass. 411,

430-431 (2010), S.C., 460 Mass. 723 (2011). The case law is

clear: to meet the burden of proof of operability, "the

Commonwealth [must] present some competent evidence from which

the jury reasonably can draw inferences that the weapon will

fire." Ibid., quoting from Commonwealth v. Nieves, 43 Mass.

App. Ct. 1, 2 (1997). See Commonwealth v. Barbosa, 461 Mass.
 6

431, 435 (2012) ("The Commonwealth was required to prove as an

essential element of its case that the weapon recovered was a

working or operable firearm; that is, that the gun was capable

of discharging a shot or bullet"); Nieves, supra (Commonwealth's

burden of proof is to "present some competent evidence from

which the jury reasonably can draw inferences that the weapon

will fire"). See also Commonwealth v. Housewright, 470 Mass.

665, 680 (2015) (despite fact that gun was not recovered, there

was sufficient and competent evidence to establish operability

based on witnesses' testimony that witnesses saw "the defendant

loaded and then fired a weapon that looked like a gun, sounded

like a gun, and flashed like a gun").

Competent evidence is a sine qua non of proof of the

operability element of the firearm offense and is also

intertwined with the sufficiency of the evidence standard set

forth in Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

Embedded in Latimore is the axiomatic standard of review in

determining sufficiency that is continually, indeed is

relentlessly, relied upon, and quoted from, in our criminal

cases. We repeat here, on the one side of the balance, that

Latimore holds that evidence is to be viewed in the light most

favorable to the prosecution to determine whether "any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Ibid., quoting from Jackson
 7

v. Virginia, 443 U.S. 307, 318-319 (1979). However, also

embedded in Latimore is the counterbalancing standard of review,

equally axiomatic, that "it is not enough for the appellate

court to find that there was some record evidence, however

slight, to support each essential element of the offense; it

must find that there was enough evidence that could have

satisfied a rational trier of fact of each such element beyond a

reasonable doubt." Id. at 677-678.

The intertwining between competent evidence on the

operability element of proof set forth in Loadholt, supra,

Barbosa, supra, and Nieves, supra (and cases that follow in

their wake), and the Latimore evidence sufficiency standard is

quite well illustrated in the Nieves case:6

"[I]n the absence of some evidence of capacity to discharge
a bullet, such as that the gun was fired, the manner it was
used, the ammunition inside, the testimony of persons who
handled the gun, testimony of persons familiar with guns,
or a ballistics certificate, the evidence is insufficient
to put to the jury the question of fact, on proper
instruction, whether the gun in question is capable of
discharging a bullet. To require less would strip of
meaning the Legislature's careful definition of a firearm

6
Indeed, it was in Nieves that this court (Kass, J.) first
stated the principle that, although the prosecutorial burden of
proof that the weapon is a firearm in the statutory sense is not
a heavy one, that burden clearly requires that there be
"competent evidence from which the jury reasonably can draw
inferences that the weapon will fire" (emphasis added). Nieves,
43 Mass. App. Ct. at 2. This principle of competent evidence
articulated in Nieves was adopted by the Supreme Judicial Court
in Loadholt, supra, and Barbosa, supra, and both cases cite and
quote from Nieves regarding competent evidence.
 8

as a weapon which, whether loaded or unloaded, is one from
which a shot or bullet can be discharged."

43 Mass. App. Ct. at 3-4.

In cases such as this one -- no firearm available as a

trial exhibit, no ballistics evidence -- the necessary element

of operability may be proved by witness testimony and related

circumstantial and corroborative evidence. See Commonwealth v.

Tuitt, 393 Mass. 801, 810 (1985); Commonwealth v. Muniz, 456

Mass. 166, 171 (2010). However, where proof of operability

rests on such witness testimony and other related circumstantial

evidence, the testimony and other evidence itself must be

competent and sufficient. We turn then to the testimony

relating to operability underlying the subject convictions.

Drapaniotis testified that he worked for a security company

and was licensed to carry a firearm. In 1999, Drapaniotis

bought the .45 (which was a used firearm). In 2000 or 2001

Drapaniotis bought the .38 (which was a new firearm).

On or about May 17, 2006, Drapaniotis discovered that the

.38 was missing. Then, on or about December 19, 2008,

Drapaniotis discovered that the .45 was missing. At both times,

he reported the theft of the respective guns to the Medford

police department. Drapaniotis testified that the defendant had

been present in the family home around the dates that each gun
 9

went missing. He further testified in detail about the

defendant's struggle with heroin addiction.

After reporting the .45 missing to the police in December,

2008, Drapaniotis told the defendant that she needed to speak

with the police or she would not be allowed to return to the

home. On December 22, 2008, the defendant then spoke with

Officer David Rooney at the Medford police station, where she

admitted to stealing each of Drapaniotis's guns. The defendant

further stated that she had sold two of the guns to her drug

dealer, and she traded the third gun for heroin.

a. The .45. We begin with the Drapaniotis's testimony

relating to the .45 because for this particular firearm, the

issue of operability is more quickly and definitely resolved

under established case law, since Drapaniotis testified that he

test fired the .45:

Prosecutor: "Okay. And that 45 caliber gun, when you
purchased that in 1999, how long did you have that gun
for?"

Drapaniotis: "Right until I think 2008."

Prosecutor: "And between 1999 and 2008, did you ever
fire that gun?"

Drapaniotis: "I believe I did."

Prosecutor: "Do you remember when you did?"

Drapaniotis: "I think right after we bought it."

Prosecutor: "And when you fired it, where was it?"
 10

Drapaniotis: "At a range."

Prosecutor: "Do you remember where that range was?"

Drapaniotis: "Tewksbury."

Prosecutor: "And when you fired it, did it fire
correctly?"

Drapaniotis: "Yes."

That Drapaniotis fired the .45 meets the standard of proof

of operability under the controlling case law. See Commonwealth

v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993) (testimony that

defendant used handgun to fire four or five shots was sufficient

to show that weapon was operable). Cf. Commonwealth v. Mendes,

75 Mass. App. Ct. 390, 397 (2009) ("independent evidence [that]

included testimony of three audible shots, the three empty

casings, and the smell of gunpowder" was sufficient to render

harmless admission of ballistics certificate). Contrast

Commonwealth v. Brown, 75 Mass. App. Ct. 361, 363 (2009)

(conviction of unlawful possession of firearm without license

not sustainable where there was not "any evidence that the gun

had been fired at any time, much less at the time of the

offense").

b. The .38. The .38 presents a far more sketchy picture.

All that the prosecution offered to meet the essential element

of operability was the following snippet in Drapaniotis's

testimony.
 11

Prosecutor: "And did you have an understanding as to
whether [the .38] worked?"

Drapaniotis: "Yes."

Prosecutor: "And what was your understanding?"

Drapaniotis: "That they sold [sic] it when I bought it
they said it worked."

Prosecutor: "Who said it worked?"

Drapaniotis: "The dealer."

Prosecutor: "And did you take their word for it?"

Drapaniotis: "Yes."

Prosecutor: "Okay. And you never had to fire -- you
never fired that weapon at a range?"

Drapaniotis: "No, no."

As the foregoing testimony demonstrates, Drapaniotis

himself never test fired or discharged a bullet from the .38,

which he purchased in 2000 or 2001. Moreover, there was nothing

in Drapaniotis's testimony that he ever even inspected the

firing mechanism to confirm whether the .38 actually "worked,"

that is, could actually fire a shot or bullet. Drapaniotis even

expressed uncertainty about his having even loaded ammunition

into the gun: "That I can't remember. Sometimes yes, sometimes

no, so I . . . ."7

7
Even had Drapaniotis been clear about whether he put
ammunition in the .38 at times, that does not, standing alone,
prove operability. "The presence of ammunition, without direct
evidence that a weapon's firing mechanism is functioning, is
insufficient [to prove operability]." Commonwealth v. McCollum,
 12

In sum, Drapaniotis's testimony acknowledging that he did

not fire, did not test, and did not check the firing mechanism,

and that he had absolutely no personal knowledge of whether the

.38 could discharge a bullet, and the salesman's comment, which

also was not predicated on any personal knowledge or testing

reflected in the trial record, and so too lacked any foundation

whatsoever, leaves an evidentiary void on operability as to the

.38.8 "[I]n the absence of some evidence of capacity to

discharge a bullet, such as that the gun was fired, the manner

it was used, the ammunition inside, the testimony of persons who

handled the gun, [or] testimony of persons familiar with guns,

. . . the evidence is insufficient to put to the jury . . .

whether the gun in question is capable of discharging a bullet."

Nieves, 43 Mass. App. Ct. at 3-4.

There being no personal knowledge or foundation to meet the

operability element of proof, what the dissent relies on most

tellingly is Drapaniotis's ten year old recollection (in the

unobjected-to hearsay) that the salesmen said the .38 "worked."

79 Mass. App. Ct. 239, 249 (2011). See Commonwealth v.
Hollister, 75 Mass. App. Ct. 729, 733 (2009) (gun may be loaded
and at same time inoperable due to malfunction in firing
mechanism).
8
The fact that Drapaniotis testified he bought the .38 for
his job and carried it with him during his security work does
not prove the gun was operable. Drapaniotis could have been
carrying a broken, nonrepairable firearm that never could have
been fired or discharge a bullet.
 13

The dissent invokes the oft-stated colloquialism that a

statement once admitted, without objection, is admitted for all

purposes. On that point, the dissent is premised on the theme

that "[h]earsay, once admitted, may be weighed with the other

evidence, and given any evidentiary value which it may possess"

(emphasis added). Commonwealth v. Carmona, 428 Mass. 268, 271

(1998), quoting from Commonwealth v. Keevan, 400 Mass. 557, 562

(1987).

Yet, therein lie the evidentiary rub and limitation,

because any unobjected-to statement admitted at trial is only

worth what it is worth. In this case, the random recollection

of puffing by the salesman was not competent evidence, lacked

any foundation to establish on what basis the salesman made this

comment, and thus had very little evidentiary worth. Put

another way, just because he said it does not make it so.

Indeed, the salesman might have added that the .38 not only

worked, that it fired, but also that when it was working, it lit

up with a fluorescent plume like a weapon from one of the "Star

Wars" movies.

This double hearsay recollection from one witness

(Drapaniotis) of a gun salesman -- "It works," spoken over a

decade ago -- does not meet the standard for competent evidence

under Loadholt, supra, Barbosa, supra, and Nieves, supra, or for

sufficient evidence under Latimore, supra. Drapaniotis's double
 14

hearsay recitation of the salesman's comment is not, by alchemy,

transformed into a competent and sufficient gem of evidence of

operability. There is "concern about affirming a conviction

. . . if the Commonwealth's evidence of the essential elements

of the offense consisted entirely of inadmissible hearsay."

Commonwealth v. Stovall, 22 Mass. App. Ct. 737, 740 (1986).

See, e.g., Commonwealth v. Paniaqua, 413 Mass. 796, 806 (1992)

(O'Connor, J., dissenting) ("The testimony concerning the police

officers' beliefs, uninformed by training or experience, was

without probative effect when it was offered, and it did not

acquire probative effect by having been admitted without

objection"). Particularly where hearsay is admitted in evidence

for its "full value" because trial counsel failed to object,

that "value" may be nonexistent. Cf. Agricultural Natl. Bank v.

Schwartz, 325 Mass. 443, 448 (1950) ("Even if some . . .

evidence may have been admitted without objection, it does not

thereby become entitled to any probative effect").

One of the leading cases on operability, Commonwealth v.

Barbosa, 461 Mass. at 435-437, is illustrative of the inherent

lack of evidentiary "worth" in the salesman's remark pulled

forward in time from some ten years ago. The court in Barbosa

analyzed what is, and what is not, competent evidence of

operability -- even if a particular statement or statements are

admitted in evidence concerning whether a firearm is operable.
 15

Ibid. In Barbosa, the Supreme Judicial Court dismissed as

"speculative," and neither sufficient nor competent evidence to

prove operability, a State trooper's hearsay statements about

operability which (as here) lacked foundation and personal

knowledge.

"Trooper Lima's testimony as to his general understanding
of the process followed by the ballistics department did
not speak to whether the revolver recovered in this case
was capable of discharging a shot or bullet. In fact, it
was made quite clear in the record that Trooper Lima had no
personal knowledge of the process that occurred in this
case [to test operability], and during his cross-
examination he specifically stated, 'I'm not a firearms
expert . . . .' Although Trooper Lima testified that out
of the six live rounds sent for analysis, five were
returned as well as a spent casing marked 'test,' and that
from that evidence it 'appear[ed]' that a ballistician had
fired a test round, this testimony was speculation, as not
based on personal knowledge."

(Emphases added.) Id. at 436-437. There was no way to know

why, how, or whether the salesman had test fired the .38,

whether the salesman had some manufacturer's report of test

firing, or whether the salesman was just assuming that a new gun

like the .38 "worked." Just as the trooper's testimony in

Barbosa of that of which he knew not on personal knowledge was

"speculation" and did not constitute "competent" or "sufficient"

evidence of operability (as opposed to "speculation"), so too

Drapaniotis's testimony that a salesman commented that the .38

"worked" had no basis in personal knowledge and was speculation

without evidentiary foundation.
 16

Conclusion. On counts 3 and 4, charging the defendant with

larceny of the .45 and unlawful possession of the .45 without a

license, the judgments are affirmed. On count 1, charging the

defendant with larceny of the .38, the judgment is reversed, the

verdict is set aside, and judgment shall enter for the

defendant.

So ordered.
 GREEN, J. (dissenting, with whom Blake, J., joins). In her

statement to police, the defendant admitted that she stole the

guns at issue from the victim (her father). I agree with the

majority that the evidence of operability of the .45 caliber

weapon, while not overwhelming, when viewed in a light most

favorable to the Commonwealth was sufficient to establish the

element of operability. See Commonwealth v. Latimore, 378 Mass.

671, 676-677 (1978). I dissent, however, from the majority's

conclusion that the evidence was insufficient to allow a

rational jury to conclude that the .38 caliber weapon was also a

firearm.

The victim testified at trial that he purchased the .38

caliber weapon new from a gun dealer, who told him that it

worked. Though the dealer's statement that the gun worked at

the time of sale was hearsay, it was admitted without objection.

In the absence of an objection, hearsay testimony is properly

admitted, and the jury is "entitled to give [the statement] such

probative effect as they deem[] appropriate." Commonwealth v.

Julien, 59 Mass. App. Ct. 679, 687 (2003), quoting from

Commonwealth v. Paniaqua, 413 Mass. 796, 803 (1992).1 Put

1
The defendant has raised no claim of ineffective
assistance of counsel by reason of trial counsel's failure to
object to the hearsay. At oral argument on rehearing, the
defendant's appellate counsel expressly eschewed reliance on any
claim that the hearsay evidence might be reviewed "to ascertain
whether the jury's consideration of it may have created a
 2

another way, "our consideration [of the sufficiency of the

evidence] 'is to be measured upon that which was admitted in

evidence without regard to the propriety of the admission.'"

Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting from

Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).

The victim testified that he loaded the weapon with ammunition

on occasion. Though as the majority observes evidence that the

gun was loaded with ammunition is inadequate standing alone to

establish that the gun was operable, it constitutes some

evidence in support of that proposition. See Commonwealth v.

Hollister, 75 Mass. App. Ct. 729, 732 (2009).2 To prove

operability, the Commonwealth may rely on reasonable inferences

drawn from circumstantial evidence including, as in the present

case, an inference that a handgun purchased new, working at the

time of purchase, loaded with ammunition from time to time by

its owner (a security professional), and carried by him in the

regular course of his duties remained in operating condition at

substantial risk of a miscarriage of justice." Commonwealth v.
Silva, 431 Mass. 401, 405 (2000), quoting from Commonwealth v.
Collier, 427 Mass. 385, 390 n.5 (1998).
2
We note that in Commonwealth v. Hollister, 75 Mass. App.
Ct. at 731, the court examined the evidence of operability for
the purpose of assessing whether the evidence, stripped of a
ballistics certificate improperly admitted, was so strong as to
render the admission of the certificate harmless beyond a
reasonable doubt. For the same reason, the majority's reliance
on Commonwealth v. Barbosa, 461 Mass. 431, 435 (2012), is also
misplaced.
 3

the time of its theft, particularly in the absence of any

evidence that its condition had deteriorated or otherwise

changed during the intervening period.

The majority opinion discounts the value of the dealer's

statement to the victim by challenging its foundation. However,

in the absence of an objection, any deficiency in the foundation

for the dealer's statement, or any challenge to its veracity,

goes solely to the weight to be accorded that evidence, and

accordingly is within the province of the jury. See

Commonwealth v. Zitano, 23 Mass. App. Ct. 403, 407 (1987). In

assessing the sufficiency of the evidence of the defendant's

guilt, "[i]t makes no difference whether we . . . would as

jurors have voted to acquit [the defendant] or whether we

ourselves think that there is some reasonable doubt. The

question posed by Jackson [v. Virginia, 443 U.S. 307, 324

(1979),] is whether 'any' rational jury could on the evidence

presented think [the .38 caliber weapon was operable] so likely

as to exclude all reasonable doubts. . . . A rational jury

might well have acquitted without violating its oath; but,

drawing all reasonable inferences in favor of the prosecution, a

rational jury could also convict." Stewart v. Coalter, 48 F.3d

610, 616 (1st Cir.), cert. denied, 516 U.S. 853 (1995). In my

view, the fact that the dealer's representation was hearsay,

offered without explanation of the basis of his knowledge, and
 4

even self-serving, does not render irrational a jury's

conclusion adopting the unremarkable suggestion that a .38

caliber handgun, purchased as new and represented by the dealer

as being in working condition, was capable of firing a bullet.