NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1488
COMMONWEALTH
vs.
ANTONIO R. MARIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of carrying a firearm without a license, G. L.
c. 269, § 10 (a), possession of ammunition without a firearm
identification (FID) card, G. L. c. 269, § 10 (h) (1), and
discharging a firearm within 500 feet of a building, G. L.
c. 269, § 12E. He raises four issues on appeal. We affirm.
Background. In the early evening of July 4, 2020, a police
officer received a radio dispatch from members of the fire
department, who reported that a man had walked into the
firehouse to report nearby gunfire. On arrival at the scene,
the police officer spoke to a witness who had recorded a video
on his cell phone showing a man in a yellow polo shirt racking the slide of a gun and firing the gun into the air. The witness
said that the man in the video footage was his neighbor. After
watching the video recording and making a copy using his own
cell phone, the officer saw a man walking down a driveway with
his hands up. That man, the defendant, was wearing the same
clothing as the man in the video recording. Officers arrested
the defendant and handcuffed him. As the situation progressed,
at least seven police officers were present.
After the defendant's arrest, a Spanish-speaking police
officer asked the defendant if he was willing to speak.1 The
defendant said yes, and the Spanish-speaking officer read him a
Miranda warning in Spanish. The defendant told the officers, as
translated by the Spanish-speaking officer, something to the
effect of "the firearm is going to be in the backyard near the
tire." A lieutenant searched the tire of the defendant's
camping trailer and found a handgun and a loaded magazine.
Officers found what appeared to be a bullet hole in a house
across the street, as well as several live and spent rounds of
ammunition on the ground near where the video footage was
recorded. After the defendant was booked at the jail, officers
found two live .25 caliber bullets in his pocket. The
1 The defendant spoke only Spanish.
2 ammunition matched the caliber of the gun found on the tire of
the trailer.
Discussion. 1. Rule 36. The defendant argues that the
judge erred in denying his motion to dismiss under Mass. R.
Crim. P. 36 (b), 378 Mass. 909 (1979) (rule 36). Under rule 36,
"a criminal defendant who is not brought to trial within one
year of the date of arraignment is presumptively entitled to
dismissal of the charges unless the Commonwealth justifies the
delay." Commonwealth v. Dirico, 480 Mass. 491, 497 (2018),
quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).
If a defendant has not been brought to trial within one year of
arraignment, he has established a prima facie violation of rule
36. Commonwealth v. Graham, 480 Mass. 516, 522-523 (2018). The
burden then shifts to the Commonwealth to justify the delay.
Id. The Commonwealth can meet that burden in two ways. First,
it can show that the time falls under an excluded period under
rule 36 (b) (2). Id. at 517. Second, it can show that "the
defendant acquiesced in, was responsible for, or benefited from
the delay." Id., quoting Spaulding, supra.
Since 1,156 days elapsed between the defendant's
arraignment on July 6, 2020, and the start of his trial on
September 5, 2023, the Commonwealth bears the burden to justify
at least 791 days to avoid dismissal. On appeal, we accept the
judge's findings of fact absent clear error where those findings
3 rest on the judge's evaluation of witness credibility and the
judge's recollection of the proceedings. Dirico, 480 Mass. at
496. Where the judge's findings depend solely on the docket,
the clerk's minutes, and record evidence, "[w]e are in as good a
position as the judge below to decide whether the time limits
imposed by the rule have run." Id., quoting Commonwealth v.
Denehy, 466 Mass. 723, 730 (2014).
a. July 7, 2020, to October 5, 2021. The Commonwealth
argues that 456 days from this period are excluded due to the
Supreme Judicial Court's emergency orders on the Covid-19
pandemic. See Supreme Judicial Court, Seventh Updated Order
Regarding Court Operations Under the Exigent Circumstances
Created by the Covid-19 (Coronavirus) Pandemic, No. OE-144 (July
12, 2021), rescinded by Supreme Judicial Court, Order In Re:
Covid-19 (Coronavirus) Pandemic, No. OE-144 (Nov. 1, 2023). We
agree. All time until October 5, 2021, was excludable from
speedy trial calculations under rule 36 due to the Supreme
Judicial Court's orders. See Commonwealth v. Lougee, 485 Mass.
70, 77-78 (2020).
The defendant argues that the trial judge was bound by the
bail hearing judge's ruling that only twenty-one days prior to
November 2, 2020, were excludable. We disagree for two reasons.
First, the bail hearing occurred in the context of G. L. c. 276,
§ 58A, under which the Commonwealth moved to detain the
4 defendant pretrial based on dangerousness. The statute requires
that detention by the District Court not exceed 120 days,
"excluding any period of delay as defined in [rule 36 (b) (2)]."
G. L. c. 276, § 58A (3). It is apparent from the transcript
that the hearing judge's calculations were made for the purposes
of § 58A, not rule 36.
Second, regardless of whether the hearing judge's rulings
pertained to § 58A or rule 36, the trial judge retained the
authority to revise those rulings and correct errors.
"Massachusetts courts have recognized that 'it is within the
inherent authority of a trial judge to "reconsider decisions
made on the road to final judgment."'" Commonwealth v. Charles,
466 Mass. 63, 83 (2013), quoting Herbert A. Sullivan, Inc. v.
Utica Mut. Ins. Co., 439 Mass. 387, 401 (2003). See also
Peterson v. Hopson, 306 Mass. 597, 601-602 (1940) (although
judge not obligated "to reconsider a case, an issue, or a
question of fact or law, once decided, the power to do so
remains in the court until final judgment or decree"). This
applies in the context of rule 36. See Commonwealth v. Moore,
20 Mass. App. Ct. 1, 3 n.4 (1985) (assuming judge had power to
revise motion judge's rule 36 calculations where erroneous).
The defendant relies on the "law of the case" doctrine to argue
that the trial judge should have deferred to the hearing judge's
5 ruling.2 The law of the case doctrine reflects a reluctance to
reconsider issues already decided in the same case. See King v.
Driscoll, 424 Mass. 1, 7-8 (1996). But see Goulet v. Whitin
Mach. Works, Inc., 399 Mass. 547, 554 (1987) (trial judge able
to revise pretrial judge's ruling). The law of the case
doctrine is a permissive, not a mandatory, doctrine. Potter v.
John Bean Div. of Food Mach. & Chem. Corp., 344 Mass. 420, 427
(1962); Vittands v. Sudduth, 49 Mass. App. Ct. 401, 413 n.19
(2000). The trial judge did not abuse her discretion in
declining to apply the doctrine and correcting an erroneous
ruling. See King, supra at 8, quoting United States v. Rivera-
Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S.
862 (1991) ("[a]n issue 'once decided, should not be reopened
"unless . . . the decision was clearly erroneous and would work
a manifest injustice"'"). We agree that the Commonwealth has
met its burden of justifying these 456 days. This means that
2 The defendant refers interchangeably to the law of the case doctrine and direct estoppel. These are distinct doctrines. See Commonwealth v. Clayton, 63 Mass. App. Ct. 608, 610-611 (2005) (prior decision did not work direct estoppel but did become law of case). We note briefly that direct estoppel is inapplicable on these facts because direct estoppel requires a final judgment of conviction. Id. at 610. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (in criminal context, direct estoppel requires that issue was actually litigated and determined, determination was essential to defendant's conviction, and defendant had opportunity to obtain review of determination).
6 the Commonwealth must justify an additional 335 days to avoid
dismissal.
b. October 6, 2021, to February 9, 2022. The parties
disagree as to how much of this time period is excludable. The
defendant argues that only twelve days should be excluded due to
the Commonwealth's failure to comply with automatic discovery.
Namely, the defendant argues that the Commonwealth failed to
turn over evidence that an investigating officer used drugs.
The Commonwealth argues that ninety-eight days are excluded
because it complied with its discovery obligations and because
the defendant acquiesced to the delay by failing to file motions
and press his case. On this record, we agree with the
Commonwealth.
At a hearing on October 5, 2021, the defendant asked for a
new hearing date for his motion for discovery pursuant to Mass.
R. Crim. P. 14, as appearing in 442 Mass. 1519 (2004) (rule 14).3
The defendant sought discovery related to an investigating
officer's alleged use of unprofessional language and drugs.
After a hearing on November 5, 2021, the judge took no action on
the motion. She reasoned that the discovery sought was not rule
3 Although the hearing took place on October 5, the record is ambiguous when the defendant filed his motion. The motion is dated and was served on September 29, 2021, and the docket entry reads October 11, 2021.
7 14 discovery, and she held that the defendant would have to file
a motion under a different procedural rule if he wanted to
proceed. Ultimately, at a hearing on January 11, 2022, the
Commonwealth divulged that the officer in question was serving a
suspension in connection with drug use. A different judge again
took no action on the defendant's discovery motions pending the
Commonwealth providing the necessary disclosures. The parties
agree that the days between January 11, 2022, and February 9,
2022, are included. Their disagreement pertains to the ninety-
eight days between October 5, 2021, and January 11, 2022.
The defendant argues that he cannot be made to choose
between vindicating his rule 36 speedy trial right and obtaining
exculpatory evidence. We disagree that the defendant faced this
dilemma. The defendant could have preserved both rights by
filing a motion to compel discovery or a motion for sanctions.
See Commonwealth v. Taylor, 469 Mass. 516, 526 (2014) (to toll
speedy trial clock, defendant must combat rule 14 violation by
filing motion for sanctions or motion to compel). He did
neither. See Commonwealth v. Bourdon, 71 Mass. App. Ct. 420,
426 (2008), quoting Commonwealth v. Fling, 67 Mass. App. Ct.
232, 236 (2006) ("[a] defendant cannot sit by passively, but
must make sure tha[t] an objection to a specific continuance is
8 timely noted").4 We agree that ninety-eight days should be
excluded. This leaves the Commonwealth with the burden to
justify 237 additional days.
c. February 9, 2022, to September 5, 2023. On February 9,
2022, the defendant withdrew his discovery motion after the
Commonwealth provided him with the discovery he requested. The
parties agreed on a date of May 12, 2022, for a hearing on the
defendant's motion to suppress. On April 12, however, the
defendant agreed to the Commonwealth's request to continue the
hearing until May 25. That the defendant acquiesced to the
delay means that the preceding period of 105 days is excluded
from rule 36 calculations. See Graham, 480 Mass. at 529 ("a
defendant is not entitled to dismissal if he or she acquiesced
in, was responsible for, or benefited from the delay").
The defendant argues that it was incumbent on the judge to
make findings as to whether the speedy trial clock was tolled,
and that absent such findings, the time should be included. In
fact, it was incumbent on the defendant to object to the
continuance if he wanted to press his right to a speedy trial.
See Commonwealth v. Lauria, 411 Mass. 63, 68 (1991), quoting
Barry v. Commonwealth, 390 Mass. 285, 297 (1983) ("defendants
4 Of course, the Commonwealth also has a duty to move a case along expeditiously. See Graham, 480 Mass. at 530 ("rule 36 imposes obligations on all parties").
9 have a responsibility to 'press their case through the criminal
justice system'").
On August 18, 2022, the defendant's request for a
continuance was allowed, and the motion to suppress was
continued until October 27, 2022. These seventy days are
excluded. See Dirico, 480 Mass. at 498-499. On October 27,
2022, the defendant was granted a continuance until December 9,
2022. On December 8, 2022, the court administratively allowed
an assented-to motion to advance and continue until February 17,
2023. As the defendant requested or agreed to these delays, the
ensuing 113 days are properly excluded.
This period of time adds 288 excluded days to the
calculation. In total, the Commonwealth has justified more than
the 791 days. We conclude that the motion judge did not err
because the Commonwealth met its burden to justify the delay,
and we need not review the remainder of the time that the
parties dispute.
2. Motion to suppress. The defendant argues that the
motion judge erred in denying his motion to suppress the gun,
ammunition, and his statements regarding the gun. He argues
that the defendant's statement telling officers where they would
find the gun did not unambiguously convey consent to search.
Alternatively, he argues that the defendant's consent was not
voluntarily given.
10 As a threshold issue, we must determine the applicable
standard of review. In support of his motion below, the
defendant argued that he did not unambiguously consent to the
search. On appeal, the defendant raises the additional issue of
the voluntariness of his consent, in the context of coercion and
intoxication. Since the defendant did not raise the
voluntariness issue below, that issue is waived. Commonwealth
v. Dew, 478 Mass. 304, 309 (2017). We nonetheless review the
voluntariness issue for a substantial risk of a miscarriage of
justice. Id. at 309-310. See Commonwealth v. Santos, 95 Mass.
App. Ct. 791, 796-798 (2019) (when defendant raises claim for
first time on appeal that should have been included in motion to
suppress, most common approach appellate court takes is to
review issue for substantial risk of miscarriage of justice as
long as record is sufficient).
a. Consent. For a consent search to be valid absent a
warrant, the consent must be voluntarily given without coercion.
Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). The
Commonwealth bears the burden of proving that consent was
voluntarily given. Commonwealth v. Alleyne, 474 Mass. 771, 783
(2016). The voluntariness of consent is a question of fact.
Id. "In reviewing a ruling on a motion to suppress, 'we accept
the judge's subsidiary findings of fact absent clear error but
conduct an independent review of [the judge's] ultimate findings
11 and conclusions of law.'" Commonwealth v. Sweeting-Bailey, 488
Mass. 741, 745 (2021), quoting Commonwealth v. Tremblay, 480
Mass. 645, 652 (2018).
We agree with the Commonwealth and the motion judge that
when the defendant told officers where they will find the gun
near the tire of the trailer, which was an area accessible to
others who approached the trailer, he consented to the search.
See Commonwealth v. Rousseau, 61 Mass. App. Ct. 144, 153-154
(2004) (suspect who directed officer to car compartment
containing burglarious tools impliedly gave officer consent to
search compartment). The defendant volunteered this statement;
he was not responding to any question or prompt from officers.
Even the phrasing of the statement points to consent. The
defendant's references to the future -- "the firearm is going to
be in the backyard near the tire" -- contemplate that officers
will search near the tire for the gun.
b. Voluntariness. The defendant points to several factors
that he argues created an inherently coercive situation.
Namely, the defendant was handcuffed and sitting in the back of
a police van -- a situation the motion judge referred to as
"clearly constitut[ing] a custodial interrogation."5 Moreover,
5 The Spanish-speaking officer read the defendant a Miranda warning before he made his statement. The defendant argues that reading a Miranda warning does not render consent voluntary. We agree with this proposition, although for reasons explained
12 the defendant highlights that he was intoxicated at the time and
was surrounded by at least seven police officers. Additionally,
there was a language barrier, as the defendant only spoke
Spanish. Lastly, he argues that an officer's remark that if he
was cooperative, that cooperation would be documented, rendered
the defendant's statement involuntary.
Under these circumstances, the defendant's consent was
voluntary. The first two factors the defendant highlights are
of little weight. See Commonwealth v. Harmond, 376 Mass. 557,
561-562 (1978) ("Although the presence of several uniformed
officers or the impairment of the defendant's understanding by
reason of drinking may suggest the absence of consent, neither
fact alone necessarily compels such a finding"). One officer
testified that the defendant's eyes were glassy, his gait
unsteady, and his speech slurred. This testimony by itself does
not render the motion judge's findings clearly erroneous. Cf.
Alleyne, 474 Mass. at 783 (defendant's consent voluntary where
he was "somewhat intoxicated, calm, cooperative," and was able
to respond to and understand questions). The defendant's
language barrier is also of little weight, given that he could
communicate with the Spanish-speaking officer.
infra, under the circumstances in this case, the defendant's consent to search was voluntarily given.
13 The defendant relies on Rogers, 444 Mass. at 239-240, but
Rogers is distinguishable, as that case involved police officers
asking questions to learn where a defendant was hiding. Here,
the defendant did not respond to any questions regarding the gun
but volunteered his statement unprompted. Absent any
questioning, the inherently coercive situation described in
Rogers did not exist here. Lastly, we note that the officer's
statement that cooperation would be noted was not improper.
"An officer may suggest broadly that it would be 'better' for a suspect to tell the truth, may indicate that the person's cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past."
Commonwealth v. Meehan, 377 Mass. 552, 564 (1979). There was no
promise of reward or leniency. See id. ("What is prohibited, if
a confession is to stand, is an assurance, express or implied,
that it will aid the defense or result in a lesser sentence").
We do not discern a substantial risk of a miscarriage of
justice.
3. Authentication of the video recording. The defendant
contends that the trial judge erred in admitting the video
recording on the ground that the video was not properly
authenticated. We disagree.
"To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
14 evidence sufficient to support a finding that the item is what
the proponent claims it is." Commonwealth v. Davis, 487 Mass.
448, 465 (2021), quoting Mass. G. Evid. § 901(a) (2021). A
video recording is typically authenticated by one of two means -
- "having an eyewitness testify that the video is a fair and
accurate representation of what he saw on the day in question,
or having someone testify about the surveillance procedures and
the methods used to store and reproduce the video material."
Davis, supra at 465-466, quoting Commonwealth v. Connolly, 91
Mass. App. Ct. 580, 586 (2017). Additionally, as here,
"[e]vidence may be authenticated by circumstantial evidence
alone, including its '[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics.'"
Davis, supra at 466, quoting Commonwealth v. Siny Van Tran, 460
Mass. 535, 546 (2011). We review the trial judge's evidentiary
rulings for an abuse of discretion. Commonwealth v. Gibson, 489
Mass. 37, 45 (2022).
Here, the witness who filmed the video footage could not be
summoned to testify at trial. The Commonwealth laid a
foundation for the video footage through the officer who
recorded a copy of the witness's cell phone video. The officer
testified that the witness had shown him a video recording the
witness had taken that captured the gunfire. Circumstantial
evidence offered strong support that the video footage was
15 authentic. The video recording, which is part of the record on
appeal, shows a man wearing a yellow polo shirt, a brown belt,
and black pants rack the slide of a small handgun and fire it
into the air. The officer testified that at the time of the
defendant's arrest, he was wearing the same clothing shown on
the video footage. The officer responded "three to four"
minutes after dispatch and watched the video recording with the
witness upon arrival. Police recovered spent and unspent
ammunition on the ground near where the defendant was firing the
gun on the video recording. The officer also found "a bullet
hole in the house across the street." Police found ammunition
in the defendant's pockets that matched the caliber of the
firearm that was recovered. This circumstantial evidence amply
authenticated the video recording and showed that the video was
taken shortly before the police arrived.
The defendant argues that the lack of a timestamp on the
video recording is fatal to authentication. But a timestamp is
not needed to authenticate a video recording where other
circumstantial evidence of authenticity exists. See Davis, 487
Mass. at 466, 467 n.23. In Davis, supra at 450, as here, an
officer made a cell phone recording of another video recording.
The recording lacked a time stamp for most of its duration, and
when the time stamp was visible, it was inaccurate. Id. at 467
n.23. Nonetheless, as here, circumstantial evidence
16 authenticated the video. Id. at 466 (witness testimony and
physical evidence that corroborated contents of video recording
constituted circumstantial evidence of video's authenticity).
Moreover, the officer in Davis, supra at 467, as here, viewed
the surveillance video recording immediately after the crime,
which alleviated any concern that the video could have been
altered. The judge did not abuse her discretion.
4. Sufficiency of the evidence. The defendant challenges
the legal sufficiency of the evidence supporting his convictions
of carrying a firearm without a license and possession of
ammunition without an FID card. Specifically, he argues that
the evidence at trial was insufficient to establish that he
lacked a firearms license at the time of the offenses. We
review the legal sufficiency of the evidence under the Latimore
standard, namely, "whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt" (citation omitted). Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979).
To prove that the defendant carried a firearm without a
license, the Commonwealth bears the burden of proving beyond a
reasonable doubt that the defendant lacked a firearms license at
the time of the offense. Commonwealth v. Guardado, 491 Mass.
666, 690, S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct.
17 2683 (2024). At trial, an employee of the Department of
Criminal Justice Information Services (DCJIS) testified that
when a Massachusetts resident applies for a firearms license,
the applicant interviews with a firearms licensing officer, who
enters the application into the Massachusetts instant record
check system (MIRCS). The employee explained that another
database, known as the criminal justice information system
(CJIS), draws all its information from MIRCS. She testified
that in September 2023, she searched the defendant's name in
MIRCS, which produced a "No Record" result. She agreed with the
prosecutor that a "No Record" result means that "there was no
record of [the defendant] possessing a license to carry a
firearm in Massachusetts." She further explained that "[t]here
was no license history for that name and date of birth."
In the light most favorable to the Commonwealth, this
testimony was sufficient to establish that the defendant lacked
a firearms license at the time of the offenses in July 2020.
The defendant argues that the employee's testimony only
establishes that the defendant lacked a firearms license as of
September 2023. The Commonwealth's witness testified that there
was "no record of [the defendant] possessing a license to carry
a firearm in Massachusetts," and that, critically, "[t]here was
no license history" (emphasis added). This testimony sufficed
to establish that the defendant could not have possessed a
18 license in July 2020 if there was no license history in the CJIS
database as of September 2023.
Judgments affirmed.
By the Court (Henry, Sacks & Singh, JJ.6),
Clerk
Entered: May 16, 2025.
6 The panelists are listed in order of seniority.