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
22-P-1248
COMMONWEALTH
vs.
CHARLES DENNING.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant, Charles
Denning, of two counts of assault by means of a dangerous
weapon, one count of possession of a firearm while committing or
attempting to commit a felony, and one count of possession of
ammunition without a firearms identification (FID) card. On
appeal, the defendant claims the motion judge erred in denying
his motion to suppress the revolver, air rifle, and ammunition
that police seized during a warrantless search. In addition,
the defendant asserts there was insufficient evidence to support
the conviction of possession of ammunition, and therefore that
conviction should be reversed. We affirm the motion judge's denial of the defendant's
motion to suppress, as well as the convictions of assault by
means of a dangerous weapon and possession of a firearm while
committing or attempting to commit a felony. However, the
conviction of unlawful possession of ammunition is reversed,
and the verdict is set aside.
Background. Holyoke police officer John Flynn, Detective
David Seidel, and William Lloyd, the homeowner, testified at the
evidentiary hearing on the defendant's motion to suppress. We
summarize the motion judge's findings of fact, supplemented by
undisputed facts that are consistent with her rulings. See
Commonwealth v. Jones–Pannell, 472 Mass. 429, 431 (2015).
On the evening of November 3, 2020, the victim, a pizza
delivery driver, reported to Holyoke police that while
delivering a pizza to the defendant and his fiancée, the
defendant engaged in a verbal altercation with him and pointed a
long-barreled revolver at him. When the victim was delivering
another pizza to a residence across the street, the defendant
also pointed what appeared to be an assault rifle at him.
When Detective David Seidel responded to the first address,
the defendant was standing in front of what appeared to be an
"assault-style rifle," resting against the front inside
2 staircase about five or six feet from the glass front door.1 The
defendant came out of the house and onto the front porch and
asked the police if their presence was related to the pizza
delivery driver. In response, officers placed the defendant in
handcuffs, and Detective Seidel entered the house without a
warrant or the defendant's permission to secure the rifle.
After picking up the rifle, Detective Seidel realized it was a
CO2-powered BB rifle (air rifle) rather than an assault weapon.
When Detective Seidel first observed the air rifle, there was
nothing observable about it that distinguished it from an
assault-styled weapon.
Moments after Detective Seidel entered the home to secure
the air rifle, William Lloyd, the homeowner and the grandfather
of the defendant's fiancée, appeared in the front hallway. In
response to questions from Detective Seidel, Lloyd stated that
both he and his granddaughter possessed firearms, as well as
"active firearm licenses." Lloyd added that he kept a gun in a
safe in his bedroom, and that his granddaughter kept her gun in
her bedroom. Lloyd also said that the defendant lived in the
house with him and his granddaughter.
1 Detective Seidel, a fifteen-year veteran of the Holyoke police, had been a department firearm instructor since 2016. Seidel also had experience with firearms as a member of the Bureau of Alcohol, Tobacco, and Firearms (ATF) task force.
3 When Detective Seidel told Lloyd that he wanted to see
Lloyd's gun, Lloyd led Seidel and two other officers to his
bedroom, where they found the safe containing his gun. After an
unsuccessful attempt by Lloyd to open the safe, Lloyd provided
the combination to Detective Seidel, who then opened the safe.
Inside the safe was a long-barreled revolver loaded with five
rounds of ammunition. The police seized the loaded revolver as
well as ammunition they observed on a dresser in Lloyd's
bedroom.
Lloyd's testimony differed from Detective Seidel's
regarding the nature of his conversation with the police, the
events that led officers up to Lloyd's bedroom, and the nature
in which the safe was opened and rifle seized. However, the
motion judge found Seidel's account "more convincing" than
Lloyd's, and we can infer from her findings that the judge did
not credit portions of Lloyd's account.
Discussion. 1. Motion to suppress. When reviewing a
motion judge's denial of a motion to suppress, we "conduct an
independent review" of that judge's "ultimate findings and
conclusions of law." Commonwealth v. Hart, 493 Mass. 130, 135
(2023), quoting Commonwealth v. Tremblay, 480 Mass. 645, 652
(2018). Because the judge's findings of fact are "drawn partly
or wholly from testimonial evidence," they are "accorded
4 deference and are not set aside unless clearly erroneous."
Hart, supra, quoting Tremblay, supra at 655. A finding is
"clearly erroneous" when the reviewing court is "'left with the
definite and firm conviction that a mistake has been committed'
after review of all the evidence" (citation omitted). Hart,
supra.
a. Probable cause and exigent circumstances. The
defendant first argues that the motion judge erred in finding
that there was probable cause and exigency justifying Detective
Seidel's warrantless entry into Lloyd's home, and therefore the
physical evidence seized from the residence should have been
suppressed.
A "warrantless government search of a home is presumptively
unreasonable under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights." Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012),
cert. denied, 568 U.S. 1129 (2013). "Warrantless searches may
be justifiable, however, if the circumstances of the search fall
within an established exception to the warrant requirement"
(quotation and citation omitted). Commonwealth v. Arias, 481
Mass. 604, 610 (2019). One of these established exceptions is
(1) when a search is based on probable cause and (2) "exigent
5 circumstances [] make obtaining a warrant impracticable." See
Commonwealth v. Ferreira, 481 Mass. 641, 655 (2019).
The test for probable cause is objective, see Commonwealth
v. Franco, 419 Mass. 635, 639 (1995), and it "exists where the
facts and circumstances in the arresting officer's knowledge and
of which he or she has reasonably trustworthy information are
sufficient to warrant a person of reasonable caution in
believing that an offense has been or is being committed."
Commonwealth v. Williams, 422 Mass. 111, 119 n.11 (1996).
Exigent circumstances are established when "the delay in
[obtaining a warrant] would pose a significant risk that
[either] [(1)] the suspect may flee, [(2)] evidence may be
destroyed, or [(3)] the safety of the police or others may be
endangered." Commonwealth v. Figueroa, 468 Mass. 204, 213
(2014).
Here, the officers had probable cause to enter the
defendant's home and seize the air rifle that looked like an
assault weapon because there was ample evidence "sufficient to
warrant a person of reasonable caution in believing" that a
crime occurred, and that evidence of the crime would be found
inside the residence. See Williams, 422 Mass. at 119 n.11. The
responding police received a call from an identified individual,
who reported being threatened by a man with a long-barreled
6 revolver and an assault weapon. See Arias, 481 Mass. at 618,
quoting Commonwealth v. Cavitt, 460 Mass. 617, 628-629 (2011)
("[w]hen assessing the reliability of [private individuals] who
report apparent violations of the law, we accord more weight to
the reliability of those who are identified . . . by name and
address"). This allegation was bolstered when police arrived at
the residence, as the defendant showed awareness of the incident
by asking Detective Seidel, without being prompted, if their
arrival had to do with the delivery driver. In addition, the
police observed what appeared to be an assault weapon inside the
front door of the house and "[w]ithin arm's reach" from the
defendant. These circumstances amounted to probable cause that
the defendant had recently threatened the victim with an assault
weapon that was inside the home. See, e.g., Richardson v.
Boston, 53 Mass. App. Ct. 201, 206-208 (2001) (concluding named
victim's report of assault corroborated by other facts
sufficient to establish probable cause).
In addition to probable cause, the motion judge did not err
in determining that exigent circumstances were also present.
Detective Seidel entered the home to seize the apparent assault
weapon when it was unsecured, and the police had no knowledge of
who was in the house and may have had access to it to
potentially use or conceal it. Detective Seidel's entry into
7 the residence and seizure of what he believed2 to be an assault
weapon were reasonable and proportionate to the circumstances
and justified as being in the interest of the police and public
safety. See, e.g., Commonwealth v. Moore, 54 Mass. App. Ct.
334, 338, 340 (2002) (officer's search of duffle bag
proportionate and justified by exigent circumstances including
evidence of "shots fired" and potential for unknown individuals
to access bag). Cf. Commonwealth v. Dejesus, 70 Mass. App. Ct.
114, 120 (2007) (finding that where "police had an objective
concern for their safety . . . rooted in the articulable facts"
of situation, protective sweep following arrest was justified).
The defendant argues that, should exigency have existed
during Detective Seidel's initial entry into the home, any
exigency dissipated when Seidel realized that what appeared to
be an assault weapon was only an air rifle. We are not
persuaded. The motion judge found that "Lloyd came into the
front hall moments after Seidel entered" to seize the air rifle,
and Detective Seidel's conversation with Lloyd began shortly
after. Evaluating the scene "as it could appear to the officers
at the time," Detective Seidel's continued presence in the foyer
2 The motion judge credited Seidel's testimony that he believed the air rifle to be "an assault-style rifle," finding that "[n]othing observable to police suggested that the rifle was an air gun rather than a firearm."
8 to speak with Lloyd about his knowledge of potentially
accessible firearms was proportionate to the circumstances.
Commonwealth v. Young, 382 Mass. 448, 456 (1981).
b. Consent to search. The defendant next argues that the
presence of armed officers, including Detective Seidel, created
a "police-dominated" and "coercive atmosphere" that caused Lloyd
to acquiesce to their authority rather than voluntarily consent
to the search of his safe. This argument is unavailing.
"When the police rely on consent to justify a warrantless
entry, under both the Fourth Amendment and art. 14, the
prosecution 'has the burden of proving that the consent was, in
fact, freely and voluntarily given.'" Commonwealth v. Rogers,
444 Mass. 234, 237 (2005), quoting Bumper v. North Carolina, 391
U.S. 543, 548 (1968). "[F]reely and voluntarily given" means
"consent unfettered by coercion, express or implied, and also
something more than mere 'acquiescence to a claim of lawful
authority.'" Commonwealth v. Walker, 370 Mass. 548, 555 (1976),
quoting Bumper, supra at 549. "Whether consent is free and
voluntary is to be determined from all of the circumstances"
(citation and quotation omitted). Commonwealth v. Soto-Suazo,
100 Mass. App. Ct. 460, 467 (2021).
"While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age,
9 intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given."
Commonwealth v. Carr, 458 Mass. 295, 302 (2010).
Here, the motion judge properly found many factors
supporting the validity of Lloyd's consent, including his
education and military history, the nonthreatening tone of the
interaction between Lloyd and the police, that Lloyd had not
been arrested at the time of the search, and Lloyd's affirmative
response to the request from Detective Seidel to see his gun,
which included leading the officers to his bedroom and providing
them with the combination to the safe. See, e.g., Commonwealth
v. Alleyne, 474 Mass. 771, 783 (2016) (defendant's "calm,
cooperative" demeanor and affirmative responses to requests
suggested "there was no evidence of coercion"); Commonwealth v.
Sanna, 424 Mass. 92, 97–99 (1997) (concluding that "the police
had properly entered the defendant's home on the consent given
by the [defendant's] father"); Commonwealth v. Aguiar, 370 Mass.
490, 497 (1976) (defendant's "active assistance" in producing
package containing cocaine contributed to finding of
voluntariness).
The defendant unpersuasively relies on Commonwealth v.
Harmond, 376 Mass. 557 (1978), to argue lack of consent. In
that case, the defendant had already been arrested by the time
10 of the warrantless search, was in custody being guarded by "one
or more police officers," and appeared "arguably unaware of his
right to refuse consent" due to alcohol consumption prior to his
arrest and "limited intelligence." Id. at 559-562. Here,
however, Lloyd had not been arrested at the time of the search,
there was no evidence that he was impaired by alcohol
consumption, and he was not identified as being of lower-than-
average intelligence. Moreover, the presence of armed and
uniformed police officers alone is not enough to indicate either
express or implied coercion. See Harmond, supra at 561-562.
Although the police did not produce a written "Consent to
Search" form for Lloyd's review, this did not render Lloyd's
consent involuntary.3 The motion judge found significant that,
during their interaction with Lloyd, the police were "non-
threatening," even cordial as they discussed matters including
Lloyd's model airplane collection.
Finally, after review of the motion judge's findings,
rulings, and the record, we are not persuaded by the defendant's
3 Although one of the many factors to consider in the analysis, "knowledge of a right to refuse is not a prerequisite of a voluntary consent." Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973). See Sanna, 424 Mass. at 97 n.10 ("The fact that a person is not informed by the police that he has a right to refuse to consent to an entry or search is a factor to be considered on the issue of voluntariness, but is not determinative of the issue").
11 argument that the motion judge made any erroneous findings. To
the contrary, the motion judge's subsidiary findings amply
"support [her] general findings [and] conclusions based
thereon." Jones-Pannell, 472 Mass. at 432, quoting Commonwealth
v. Murphy, 362 Mass. 542, 547 (1972).
2. Sufficiency of the evidence. The defendant argues, and
the Commonwealth concedes, that the Commonwealth did not provide
sufficient evidence to support the defendant's conviction for
possession of ammunition.4 We agree.
"In reviewing a claim of insufficient evidence, we ask
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"
(quotation and citation omitted). Commonwealth v. Brown, 479
Mass. 600, 608 (2018). "To convict the defendant of unlawful
possession of ammunition, the Commonwealth was required to prove
that the defendant knowingly possessed ammunition that met the
legal definition of ammunition." Commonwealth v. Johnson, 461
Mass. 44, 53 (2011). "[K]nowledge can be inferred from
circumstantial evidence, including any external indications
signaling the nature of the weapon" such as the ability to
4 Despite the Commonwealth's concession, we must independently examine the error confessed. See Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010).
12 "discern merely by observation whether [a firearm] . . . was
loaded" (quotation and citation omitted). Brown,479 Mass. at
608.
Because the defendant did not object to the sufficiency of
evidence for the unlawful possession of ammunition conviction,
we review for whether any potential error resulted in a
"substantial risk of a miscarriage of justice." Commonwealth v.
Azar, 435 Mass. 675, 685 (2002). An error creates a substantial
risk of a miscarriage of justice if, after review, we determine
there is "a serious doubt whether the result of the trial might
have been different had the error not been made." Commonwealth
v. Desiderio, 491 Mass. 809, 810 (2023). "[C]onvictions based
on insufficient evidence are inherently serious enough to create
a substantial risk of a miscarriage of justice" (quotation and
citation omitted). Commonwealth v. Heywood, 484 Mass. 43, 49
n.7 (2020).
At trial, the victim testified, in summary, that the
defendant pointed a "long-barreled revolver" and what looked
like an assault weapon at him. In addition, police witnesses
testified that they recovered a "long barreled revolver," as
well as five rounds of ammunition from inside the revolver's
13 cylinder, from a safe in Lloyd's bedroom.5 While this evidence
supports the defendant's convictions for assaults with dangerous
weapons (a handgun and "BB gun" as charged in the indictments)
and possessing a firearm while committing a felony, the
Commonwealth did not prove that the defendant knew the revolver
was loaded when he possessed it. Notably, neither of the police
witnesses who testified to taking part in recovering the
revolver testified as to whether the ammunition was visible
while inside the revolver's cylinder, or opined whether a person
would have been able to determine if the revolver was loaded
merely by holding the revolver. Nor did the victim testify that
he could discern the revolver was loaded.
Additionally, as conceded by the Commonwealth, the
photographic exhibits of the revolver introduced to the jury do
not reveal whether one could have seen the absence or presence
of ammunition while handling the revolver without opening the
cylinder.6
5 The Commonwealth's theory at trial was that the ammunition the defendant possessed was what was inside the revolver. In those circumstances, we confine our analysis to that ammunition.
6 Only one photographic exhibit (Trial Exhibit 7) of the revolver was sufficiently clear for our review in the record on appeal. This exhibit is not illustrative of whether ammunition would have been visible to one holding the revolver.
14 Therefore, the Commonwealth did not present sufficient
evidence from which a juror could infer, beyond a reasonable
doubt, that the defendant was aware that the revolver was
loaded. See Commonwealth v. Brown, 91 Mass. App. Ct. 286, 287,
293 (2017) (vacating defendant's conviction where there "was no
basis on which a rational juror could conclude beyond a
reasonable doubt that the defendant knew the gun was loaded").
See also Commonwealth v. Ashford, 486 Mass. 450, 455 (2020) (in
concluding evidence was insufficient to establish defendant knew
firearm was loaded, court emphasized facts that "the gun was not
discovered on the defendant's person, and one cannot tell
whether the firearm was loaded simply by looking at it");
Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 748 (2018)
(concluding evidence not sufficient to support conviction of
unlawful possession of loaded firearm because one could not
discern from looking at firearm that it was loaded).
Accordingly, the conviction for possession of ammunition without
a firearms identification card must be reversed and the verdict
set aside.7
7 Because we conclude that the defendant's conviction of possession of ammunition without an FID card must be reversed due to insufficient evidence, we need not reach the remaining claims raised on appeal for this charge.
15 Conclusion. The order denying the defendant's motion to
suppress is affirmed. The judgment as to the defendant's
conviction of unlawful possession of ammunition is reversed; the
verdict is set aside; and the judgment on this count shall enter
for the defendant. The judgments as to the convictions of two
counts of assault by means of a dangerous weapon and one count
of possession of a firearm while committing or attempting to
commit a felony are affirmed. The matter is remanded for any
further proceedings consistent with the decision.
So ordered.
By the Court (Shin, Grant & Smyth, JJ.8),
Clerk
Entered: September 8, 2025.
8 The panelists are listed in order of seniority.