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Appeals Court of Massachusetts.



Decided: April 13, 2021

By the Court (Sullivan, Massing & Englander, JJ.1)


The defendant was charged with crimes in relation to two separate events. The first event was a shooting that occurred in South Boston on August 15, 2016; the second event was the recovery of narcotics and two firearms during the execution of a search warrant at a South Boston apartment on September 22, 2016. Investigation revealed that one of the firearms found during the September 22 search was the weapon used in the August 15 shooting. After a jury trial, the defendant was acquitted of all charges stemming from the August shooting, but convicted of possession charges stemming from the execution of the warrant, including possession with intent to distribute a class B substance, subsequent offense, G. L. c. 94C, § 32A (c), and possession of the two firearms, subsequent offense, and ammunition, G. L. c. 269, § 10 (h), (g).

The defendant appeals, arguing (1) that the evidence that he constructively possessed both the firearms and some of the drugs was insufficient; (2) that the testimony of the Commonwealth's expert ballistician lacked the required foundation, and that the judge was required to give a jury instruction regarding the expert's use of the phrase “to a reasonable degree of ballistic certainty”; and (3) that the prosecutor misstated the evidence in closing. We affirm.

Background. On August 15, 2016, a person was shot in a car parked in the Mary Ellen McCormack development in South Boston. Boston Police officers responded to the scene and were unable to locate the perpetrators, but recovered several spent shell casings, as well as one bullet fragment from the car the victim had been sitting in.

One eyewitness, who had observed the aftermath of the shooting from the window of his home, reported to the officers that he had seen two men fleeing the scene of the shooting, and that the one of the men had been holding a pistol. About one month later, the eyewitness encountered the man he had seen holding the pistol, whom he later identified as the defendant, walking with another man, Michael Lamontagne, on a nearby street in the same neighborhood. Several days later the eyewitness again spotted the defendant, this time standing in the hallway outside of a third-floor apartment near where the witness lived. These encounters prompted the eyewitness to go to the police on September 18, 2016, to make a more detailed report of what he had seen.

Separately, officers had been watching the same third-floor apartment where the witness saw the defendant, as a result of suspected drug activity. The investigation had included five controlled buys, wherein a confidential informant would call the defendant and would arrange to meet with one of the defendant's associates to purchase “crack” cocaine. As a result of this investigation, officers applied for a “no-knock” search warrant for the apartment (and the defendant's person), which was executed in the early morning on September 22, 2016. Lamontagne, who lived in the apartment, was seated in the living room. The defendant was located in the lone bedroom of the apartment, together with another individual. A search of the defendant's person yielded nineteen small bags of crack cocaine and twenty-four small bags of fentanyl. Two loaded firearms were found in the bedroom, hidden between a mattress and box spring a short distance from where the defendant was sitting. The bedroom closet contained an additional sixteen bags of crack cocaine.

The defendant moved to suppress the evidence gained from the search warrants, arguing among other things that the warrant affidavit did not justify the no knock provision. The motion was denied. At trial, the Commonwealth presented several witnesses, including the eyewitness and a ballistics expert who had compared the firearms recovered from the apartment to the casings and the bullet found at the scene of the August shooting. The expert opined, to a “reasonable degree of ballistic certainty,” that the nine millimeter pistol recovered from under the mattress was the same gun that had ejected the shell casings and bullet found at the shooting in August. Defense counsel cross-examined the expert vigorously on this point, eliciting a concession that the ballistician could not define what “reasonable degree of ballistic certainty” meant, and that it was merely a “buzz word” that she was trained to say on the witness stand.

In closing, the defendant highlighted various inconsistencies in the eyewitness's testimony. The defense also argued that it was Lamontagne, not the defendant, who was the lessee of the apartment, and that the Commonwealth had failed to establish the defendant's constructive possession of the firearms found under the mattress, or of the drugs in the closet. The jury found the defendant guilty of possession of a class B substance with intent to distribute, and possession of the loaded firearms and ammunition, but acquitted the defendant of all charges stemming from the August shooting.

Discussion. 1. Sufficiency of the evidence. The defendant first contends that the evidence was insufficient to establish that he constructively possessed the firearms and ammunition found under the mattress and the drugs found in the closet.

On review of a claim of insufficient evidence, we examine the evidence in the light most favorable to the Commonwealth, to determine whether any rational trier of fact could have found the defendant guilty. Commonwealth v. Javier, 481 Mass. 268, 279 (2019) (“we draw all reasonable inferences in favor of the Commonwealth ․ Inferences need only be reasonable and possible and need not be necessary or inescapable.” [Quotations and citations omitted]). To establish a defendant's constructive possession of an item not found on his person, the Commonwealth must show that the defendant had “knowledge of the contraband and the ability and intention to exercise dominion and control” over that item.2 Commonwealth v. Ortega, 441 Mass. 170, 174 (2004). Mere presence in a location where contraband is found is not sufficient; rather, to prove constructive possession the Commonwealth must show something in addition, a so-called “plus factor,” which serves to support the inference that the defendant had the requisite knowledge, dominion, and control over the items. Id. at 174-175.

The evidence, in the light most favorable to the Commonwealth, was sufficient to establish that the defendant constructively possessed the firearms. The firearms were found in the same bedroom as the defendant, a short distance from where he was seated. Ballistics tests on the firearms showed that one of them was the source of the shell casings and bullet found at the August shooting. The defendant was also identified as being seen at the scene of the August shooting, holding a pistol. A reasonable inference can be drawn that the pistol the defendant was holding at the scene in August was the same pistol found under the mattress, and that the defendant both knew of the presence of the firearms in the bedroom and had the ability to exercise control over them if he so chose. The evidence indicating that the defendant was in actual possession of a pistol at the time of the August shooting provides the plus factor to establish his constructive possession of the firearms under the mattress.3 See Ortega, 441 Mass. at 174-175.

The defendant leans heavily on Commonwealth v. Fancy, 349 Mass. 196, 198-201 (1965), for the proposition that his mere “double presence” at both the scene of the August shooting, with pistol in hand, and later presence in a bedroom where there was a firearm that fired rounds during that shooting, was insufficient to establish his constructive possession of the weapon. The defendant's reliance on Fancy is misplaced, as the facts here are readily distinguishable. Unlike in Fancy, where “it was never established that Fancy ever had any of the [stolen] Cutty Sark whiskey in his possession,” the jury could reasonably infer that here the defendant had been previously observed holding one of these firearms.4 See Fancy, supra at 200.

2. The ballistics expert. The defendant next argues that the Commonwealth's ballistics expert did not conform her testimony to the standards described in Commonwealth v. Pytou Heang, 458 Mass. 827 (2011). In particular, he argues that the expert failed to discuss “subclass” toolmarks on projectiles and casings, rendering her testimony inadmissible. The defendant also argues that the judge should have provided, sua sponte, a jury instruction distinguishing a “reasonable degree of ballistic certainty” from a “reasonable degree of scientific certainty,” and instructing the jury that “ballistic certainty” is less than “scientific certainty.” Once again, we are not persuaded.

In Pytou Heang, the Supreme Judicial Court stated:

“[B]efore an opinion is offered at trial, a forensic ballistics expert should explain to the jury the theories and methodologies underlying the field of forensic ballistics. This testimony should include, but is not limited to, explanation of how toolmarks are imparted onto projectiles and cartridge casings; the differences between class, subclass, and individual characteristics of firearms․ Such testimony should also clearly articulate the differences between class and subclass characteristic toolmarks, which can narrow down the group of weapons that may have fired a particular projectile, and individual characteristic toolmarks, which potentially may permit an opinion that a particular firearm fired a projectile.”

458 Mass. at 847. Before she offered her opinion, the expert explained at some length the difference between “class” characteristics and “individual” characteristics found on casings and bullets. She explained those differences in much the same way that they are explained in Pytou Heang. She then went on to opine, based upon the similarities in both class characteristics and observed individual characteristics, that the nine millimeter cartridge casings and the bullet found at the August shooting scene “were fired from” the nine millimeter Ruger found under the bedroom mattress.

On appeal, the defendant seizes on the fact that the expert only discussed “class” characteristics, and did not also discuss and distinguish “subclass” characteristics. The argument is without merit. No such objection was raised at trial; indeed, there were no objections throughout the expert's testimony. In context, the expert made clear that there were different types of markings that she reviewed and relied on, and that the “individual” characteristics were the ones that were unique to a particular firearm. While Pytou Heang states that the expert should also have referenced subclass characteristics, nothing in that case suggests that such an omission is fatal to an expert opinion, particularly where the expert generally follows the teachings of the case. Moreover, here the expert was subjected to considerable cross-examination, which included references to several photographs from the microscope comparison analysis, and which required the expert to explain in detail how she had come to her conclusion using these images. At no point did defense counsel question the expert regarding subclass characteristic toolmarks. In short, we perceive no error here, and in any event, no substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

We also discern no merit to the defendant's contention that the judge should have instructed the jury, sua sponte, that ballistics is “not a science” and that a “reasonable degree of ballistic certainty” is “less than ‘scientific certainty.’ ” No such instruction is required by Pytou Heang, and indeed, we doubt that such an instruction would be helpful to the jury. In any event, “[a] judge need not give instructions on every subsidiary fact and possible inference,” and the extent of the jury charge is a matter within the judge's discretion. Commonwealth v. Phong Thu Ly, 19 Mass. App. Ct. 901, 902 (1984). Moreover, on cross-examination defense counsel brought out the subjective nature of the ballistic expert's opinion and elicited a concession -- that the witness could not articulate what the “reasonable degree of ballistic certainty” standard meant, and that she had merely been trained to say it when called as a witness. The instruction now proposed was not necessary.

3. The prosecutor's closing argument. Finally, the defendant argues that the prosecutor misstated the evidence in his closing argument when he said that the defendant had been found sitting on the bed (where the guns were found under the mattress), when in fact the evidence was that the defendant was found sitting near the bed. While the defendant is correct that this was a misstatement, it was a misstatement made by both counsel, repeatedly. Not surprisingly, then, the defendant did not object to the prosecutor's statement at trial.

“When a defendant raises a claim of error regarding a prosecutor's closing argument, we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions.” Commonwealth v. Taylor, 455 Mass. 372, 383-384 (2009), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). Here the mistake was not significant in the context of the trial as a whole. Whether the defendant was found on, or simply near, the bed concealing the two firearms, when both positions were proximate to the firearms, is unlikely to have made a difference in the jury's conclusions.5 Commonwealth v. Orton, 58 Mass. App. Ct. 209, 213-214 (2003).

Judgments affirmed.


2.   The defendant also argues on appeal that under G. L. c. 269, § 10 (h), the Commonwealth was required to prove that the defendant knew he possessed a weapon fitting the statutory language of a “firearm” as defined in G. L. c. 140, § 121. Since this appeal was taken, the Supreme Judicial Court decided Commonwealth v. Marrero, 484 Mass. 341, 346 (2020), holding that the Commonwealth need not prove a defendant's knowledge of what constitutes a “firearm” under the statute.

3.   The defendant was charged with several firearm offenses in relation to the August shooting, but was acquitted of each of those charges. Nevertheless, even if not proven beyond a reasonable doubt, the facts introduced regarding the August shooting remain relevant as a potential “plus factor” establishing the defendant's constructive possession of the firearms found in the apartment. See Ortega, 441 Mass. at 174, quoting Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 150 (1999) (circumstantial evidence of constructive possession need not be “inescapable,” but must permit “reasonable ․ inference”). See also Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 584 (1999).

4.   There was also sufficient evidence that the defendant possessed cocaine with intent to distribute. The defendant was found with $900 in cash and forty-three individual baggies of drugs on his person, including nineteen bags of crack cocaine, and twenty-four bags of fentanyl. Additionally, razor blades and plastic bags, common hallmarks of drug distribution, were found on a bureau in the bedroom, and no instrumentalities of actual drug use were found. See, e.g., Commonwealth v. DePina, 75 Mass. App. Ct. 842, 852-853 (2009). Under the circumstances, the evidence of intent to distribute was sufficient without also relying upon the drugs found in the bedroom closet.

5.   There is no merit to the defendant's argument that the judge erred in denying his motion to suppress. The defendant contends that the “no knock” nature of the warrant was inadequately supported, and that “the judge ignored the elephant-in-the-room fact that the affidavit contained nothing about a firearm being at the apartment or on [the defendant].” Both the defendant and another associate, also the subject of a search warrant, had prior convictions for firearm possession, however, and the associate had been convicted of discharging a firearm. See Commonwealth v. Jimenez, 438 Mass. 213, 220 (2002) (“history of weapons possession” of targets relevant consideration in issuing no-knock warrant). Additionally, drugs were being sold out of the apartment. See id. at 219-221; Commonwealth v. Perez, 87 Mass. App. Ct. 278, 281-282 (2015). There was no error.

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