COMMONWEALTH v. SAMUEL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from his convictions of unlawful possession of a firearm and possession of a loaded firearm, the defendant contends that the admission in evidence of testimonial hearsay statements from the first ballistician who examined and tested the firearm violated his confrontation right under the Sixth Amendment to the United States Constitution. We agree and, concluding as well that the error was not harmless beyond a reasonable doubt, vacate the judgments and set aside the verdicts.³

The ballistician who first examined the firearm, Boston Police Officer Gary Lewis, did not testify at trial. Instead, a second ballistician, Boston Police Detective Tyrone Camper, testified, over defense objection, about Officer Lewis's evaluation of the firearm, including Lewis's opinion that it was in working condition. The Commonwealth's direct examination of Detective Camper concluded with the following question and answer:

Q: “Okay. Does your ultimate findings [sic] comport with Officer Lewis' ultimate findings regarding whether or not that item is, in fact, a firearm?”

A: “Yes.”

That was error. See Commonwealth v. Jones, 472 Mass. 707, 711-715 (2015). In addition to relying on Lewis's notes for his testimony about the need for repairs to the firearm so that it could fire a round, see id. at 713, Camper, in the exchange quoted above, related Lewis's ultimate opinion.

The prosecutor exacerbated the error when, in his closing argument, he referred twice to certifications by both Lewis and Camper that the item was a firearm.⁴

The error was not harmless beyond a reasonable doubt. The Commonwealth's case rested on its ability to prove that the adjustments Lewis made to the firearm to allow it to discharge a round of ammunition were minor. But because Camper had no personal knowledge of what adjustments Lewis actually made before finding it operable, Camper's testimony that all that was required to make the firearm operable was a simple “partial [re]assembly” was speculative, hearsay-based, and not subject to meaningful cross-examination. Moreover, the prosecutor's dual references to certifications by both the ballistician who first examined the firearm and the ballistician who testified at trial added weight to Camper's opinion. Finally, the judge's curative instructions did not eliminate the risk of prejudice to the defendant for substantially the reasons summarized in the defendant's brief at pages forty-three to forty-five.

Judgments vacated.

Verdicts set aside.

FOOTNOTES

3.   In its brief, the Commonwealth mistakenly suggests that our review is for prejudicial error. Because the error is constitutional, we review for whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Sullivan, 478 Mass. 369, 378 (2017).

4.   We need not address the defendant's other claims of improper argument in the prosecutor's closing.