NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
22-P-1011 Appeals Court
COMMONWEALTH vs. RICHARD LUGO.
No. 22-P-1011.
Suffolk. March 14, 2024. – June 20, 2024.
Present: Meade, Neyman, & Hand, JJ.
Indictments found and returned in the Superior Court Department on December 4, 2019.
The cases were tried before Janet L. Sanders, J.
Homicide. Firearms. Jury and Jurors. Constitutional Law, Jury, Right to bear arms, Harmless error. Due Process of Law, Elements of criminal offense. Evidence, Admission by silence, Consciousness of guilt, Firearm, Argument by prosecutor. Error, Harmless. Practice, Criminal, Jury and jurors, Argument by prosecutor, Instructions to jury, Harmless error.
William M. Driscoll for the defendant. Kyle E. Siconolfi, Assistant District Attorney, for the Commonwealth.
MEADE, J. After a jury trial on an indictment that charged
first-degree murder, the defendant was convicted of the lesser
included offense of voluntary manslaughter. He was also found 2
guilty of unlawful possession of a firearm and unlawful
possession of a loaded firearm.1 On appeal, he claims the judge
abused her discretion by allowing the Commonwealth's peremptory
challenge to a venire member, the judge abused her discretion by
admitting evidence of the defendant's prearrest silence, and the
judge erred in her jury instructions on the firearm offenses.
We affirm the conviction for voluntary manslaughter, and we
vacate his convictions for the firearm offenses.
Background. In 2019, the defendant shot and killed the
victim, Pascual Casiano, at the car repair shop where the
defendant was employed as a mechanic. The victim operated the
car dealership adjacent to the repair shop and worked in sales
with his nephew, Javier Fonseca.
On the day of the shooting, the defendant and the victim
had an argument that escalated into a physical altercation and
culminated in the defendant using a handgun to shoot the victim
in his abdomen. The defendant also fired the weapon at Fonseca,
who suffered a gunshot wound to his hand. The bullet that
struck the victim ultimately caused his death.
After the shooting, the defendant fled the Commonwealth,
where he had lived since 1986. In the process, he abandoned his
1 The jury acquitted the defendant of armed assault with intent to murder, assault and battery by means of a dangerous weapon, and larceny of a motor vehicle. 3
cell phone, his job, and several family members, including five
of his six children. Arriving in New York, where a son lived,
the defendant altered his appearance by cutting off his lengthy
dreadlocks, a hair style he had maintained for fifteen years.
The Commonwealth and the defendant offered different
theories on who initiated the conflict, who first brandished the
gun, whether the defendant had acted in self-defense, and the
existence of other mitigating factors in the shooting. The
Commonwealth's witnesses portrayed a mutual fist fight between
the defendant and the victim that Fonseca attempted to break up,
with only the defendant ever being in possession of a gun. The
defendant pushed Fonseca and the victim away and then shot them
both. Fonseca attempted to retrieve his cell phone from the
victim's car to call for help, but the defendant threatened to
kill him if he did not get out of the car.
The defendant, on the other hand, testified that it was he
who was attacked by the victim and Fonseca. He claimed the duo
struck him in the head with a gun as well as a bat and kicked
and punched him repeatedly. As a result, the defendant was
bleeding, light-headed, dizzy, and he feared for his life.
According to the defendant, near the conclusion of the beating,
the victim dropped the gun, which the defendant retrieved and
fired more than once, striking both men. The defendant claimed
he acted in self-defense. 4
Discussion. 1. The peremptory challenge. The defendant
claims for the first time on appeal that the judge abused her
discretion by permitting the Commonwealth to exercise a
peremptory challenge to exclude an African-American venire
member (juror no. 31), who was being treated for a mental health
disorder, because the challenge violated the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. See G. L.
c. 234A, §§ 3, 4. The defendant also claims for the first time
on appeal that exclusion of juror no. 31 due to his brother
being incarcerated in Federal prison on a gun conviction was
"disability discrimination clothed as implicit bias." Both
assertions lack merit.
Article 12 of the Massachusetts Declaration of Rights, and
the Sixth and Fourteenth Amendments to the United States
Constitution, guarantee to criminal defendants the right to a
trial by an impartial jury. Commonwealth v. Susi, 394 Mass.
784, 786 (1985); Commonwealth v. Soares, 377 Mass. 461, 478-480,
cert. denied, 444 U.S. 881 (1979), overruled in part by
Commonwealth v. Sanchez, 485 Mass. 491, 511 (2020). Pursuant to
these same protections, a party is prohibited from exercising a
peremptory challenge on the basis of race or other protected
classes. Sanchez, supra at 493; Commonwealth v. Jones, 477
Mass. 307, 319 (2017). See Batson v. Kentucky, 476 U.S. 79, 95
(1986). With that said, the analysis of a peremptory challenge 5
begins with a presumption that the challenge is proper. See
Soares, supra at 489. To analyze an objected-to peremptory
challenge, the trial judge must follow a three-step, burden
shifting procedure. "[T]o rebut the presumption that the
peremptory challenge is proper, the challenging party '"must
make out a prima facie case" that it was impermissibly based on
race or other protected status "by showing that the totality of
the relevant facts gives rise to an inference of discriminatory
purpose."'" Commonwealth v. Kozubal, 488 Mass. 575, 580 (2021),
cert. denied, 142 S. Ct. 2723 (2022), quoting Commonwealth v.
Jackson, 486 Mass. 763, 768 (2021). "If a party makes such a
showing, the burden shifts to the party exercising the challenge
to provide a 'group-neutral' explanation for it" (quotation and
citation omitted). Sanchez, supra. "Finally, the judge must
then determine whether the explanation is both 'adequate' and
'genuine'" (quotation and citation omitted). Id. See
Commonwealth v. Kalila, 103 Mass. App. Ct. 582, 587-588 (2023).
We review a judge's decision relative to a peremptory challenge
for an abuse of discretion. Commonwealth v. Lopes, 478 Mass.
593, 599 (2018).
Here, during a voir dire on the second day of trial, juror
no. 31 disclosed both his personal and familial experiences with
being arrested and prosecuted, as well as his own history of
mental illness. Upon inquiry from the judge, juror no. 31 6
reported that both he and his brother had been arrested. Juror
no. 31's sole arrest from two years prior stemmed from a
breaking and entering in the nighttime when he was not taking
his medication for his schizoaffective disorder. He reported
that he was now stable and had been for the past year, his
medication was under control,2 he had completed "mental health
court," and he would be able to hear the evidence and to
participate in deliberations. Juror no. 31's brother, with whom
he was not close, had been arrested for "drugs and [a] gun," and
he was currently in Federal prison. Juror no. 31 did not
participate in his brother's trial, and nothing in that case led
him to believe that his brother had been treated unfairly or
that he would harbor any bias against the police, the
prosecutor, or other witnesses in this case.
After defense counsel made a further inquiry related to
juror no. 31's medication, and issues related to jury service,
the prosecutor exercised a peremptory challenge to juror no. 31.
The judge then noted that she considered excusing the juror for
cause based on him being treated for a severe mental illness,
but she chose not to do so based on juror no. 31's assurances
related to being properly medicated. Defense counsel objected
2 Juror no. 31 receives monthly injections of Haloperidol, which are administered at a clinic in the Boston Medical Center. 7
because juror no. 31 was the second African-American venire
member that the prosecutor sought to strike.
When asked by the judge to provide a group-neutral
explanation for the challenge, the prosecutor noted the mental
health issue but explained that she was concerned that juror no.
31's brother was in Federal prison for a firearm conviction and
the defendant in this case was charged with violent firearm
offenses. The prosecutor added that her concern was similar to
the other African-American juror she had challenged, who had
friends that had been charged and convicted of murder.3
Defense counsel's position was that in Boston, a large
percentage of African-American venire members will have friends
or family that have been "arrested, charged or involved in some
sort of gun crime." Counsel also noted his initial concern
about juror no. 31's medication, and what could occur if he did
not take his medication during trial, but added that those
concerns were resolved given how the medication was administered
on a monthly basis. "[F]or those reasons," the defendant
objected. The judge found that the prosecutor's reasons for the
peremptory challenge were "group neutral," as well as being
"genuine and adequate."
3 The defendant does not claim any impropriety in this venire member being excused. 8
Here, although the defendant's objection at trial noted
that juror no. 31 was being medicated for his mental illness, it
was not lodged based on the protections of the ADA or any
associated claim of "disability discrimination clothed as
implicit bias." Rather, the objection was based on juror no. 31
being the second African-American the prosecutor had challenged.4
In this posture, we are presented with an issue that was not
raised at trial, and one that does not comfortably avail itself
of an ordinary waiver analysis to determine if a substantial
risk of a miscarriage of justice exists. See Commonwealth v.
Randolph, 438 Mass. 290, 294-295 (2002). See also Commonwealth
v. Bourgeois, 391 Mass. 869, 877-878 (1984) ("A record in which
a party has not had an opportunity to explain the use of
peremptory challenges is inadequate to raise a Soares
violation"). Because it was not raised at trial, the prosecutor
was deprived of the opportunity to explain why her challenge to
the juror did not relate to disability discrimination or
implicit bias as these arguments did not bloom until appeal.
Moreover, when the basis for a peremptory challenge is made
for the first time on appeal, it is simply not possible for the
defendant to claim he made a prima facie showing at trial that
4 The defendant supported his objection with a statistical claim regarding African-American jurors likely having a friend or family member involved in some sort of firearm offense. 9
the totality of the relevant facts gave rise to an inference of
discriminatory purpose to overcome the presumption that the
challenge was proper. See Kozubal, 488 Mass. at 580. This is
compounded by the fact that the crucial opportunity for review
by the trial judge, who observed the voir dire, is lost.
Importantly, part of the trial judge's review entails her making
factual and credibility determinations related to whether the
reasons for the challenge were genuine and adequate. See
Commonwealth v. Prunty, 462 Mass. 295, 312-313 (2012) (judge's
decision on ultimate question of discriminatory intent
represents finding of fact). Our appellate office does not
equip us to undertake those evaluations. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 438 (2015) (improper for appellate
court to engage in independent fact finding). Cf. Kiely v.
Teradyne, Inc., 85 Mass. App. Ct. 431, 448 (2014) (declining "to
engage in impermissible appellate fact-finding by looking beyond
the jury verdict to speculate" as to damages). Lost here is the
fact that the defendant's trial was the "main event," and it was
not merely a "tryout on the road" to the appeal. Wainwright v.
Sykes, 433 U.S. 72, 90 (1977). Appellate review should be based
on what occurred at trial, not what might have been. See
Commonwealth v. Chase, 433 Mass. 293, 297 (2001); Commonwealth
v. Stout, 356 Mass. 237, 243 (1969). 10
Despite the obstacles in our appellate path, we are able to
say on this record that there was no risk that justice
miscarried because the judge did not abuse her discretion by
excusing juror no. 31. See Commonwealth v. Colon-Cruz, 408
Mass. 533, 550 (1990) (reviewing Soares challenge raised for
first time on appeal by considering whether record on its face
supported defendant's claim). "Article 12 of the Massachusetts
Declaration of Rights proscribes the use of peremptory
challenges 'to exclude prospective jurors solely by virtue of
their membership in, or affiliation with, particular, defined
groupings in the community.'" Commonwealth v. Smith, 450 Mass.
395, 405, cert. denied, 555 U.S. 893 (2008), S.C., 493 Mass.
1037 (2024), quoting Soares, 377 Mass. at 486. "These groupings
are defined by art. 1 of the Massachusetts Declaration of
Rights, as amended by art. 106 of the Amendments (Equal Rights
Amendment), which protects against discrimination based on sex,
race, color, creed, national origin, and sexual orientation."
Commonwealth v. Carter, 488 Mass. 191, 201 (2021). See
Commonwealth v. Aponte, 391 Mass. 494, 507 (1984). A disability
occasioned by mental illness, i.e., schizoaffective disorder in
this case, medicated or not, is not a recognized protected class
under art. 1.5 See United States v. Harris, 197 F.3d 870, 875-
5 In addition, a person's mental illness is not inextricably linked to any other class catalogued in art. 1, or otherwise 11
876 (7th Cir. 1999), cert. denied, 529 U.S. 1044 (2000) (for
purposes of equal protection analysis, ADA does not provide
disabled persons heightened protection as suspect class against
peremptory challenges). See also Demunn v. State, 627 So.2d
1005, 1006-1007 (Ala. Crim. App. 1991), aff'd, 627 So.2d 1010
(Ala. 1992) (concluding that striking of venire member on basis
of disability was "race-neutral" reason); Donelson v. Fritz, 70
P.3d 539, 544 (Colo. App. 2002) (holding that "Batson does not
apply to peremptory challenges to persons with disabilities").
Cf. Williams v. Secretary of the Executive Office of Human
Servs., 414 Mass. 551, 564-565 (1993) (rejecting equal
protection claims of "homeless mentally ill" for lack of suspect
classification or fundamental interest at stake). In this
light, even if the ADA claim had been made at trial, it would
not have provided juror no. 31 with heightened protection due to
his mental illness. That is, "the totality of the relevant
facts" would have failed "to raise an inference of a
discriminatory purpose." See Sanchez, 485 Mass. at 511.
Furthermore, a review of the record before us reveals that
the judge accepted the prosecutor's "genuine" and "adequate"
justification for her peremptory challenge of juror no. 31.
expanded. See Carter, 488 Mass. at 201, citing Bostock v. Clayton County, Ga., 590 U.S. 644, 660-661 (2020) (recognizing that discrimination based on sexual orientation is inextricably linked to discrimination based on person's sex). 12
Even though the prosecutor noted that juror no. 31 had a mental
health issue in her discussion with the judge, the animating
concern that prompted the prosecutor's peremptory challenge was
that juror no. 31's brother was in Federal prison for a firearm
conviction, as this was one of the offenses for which the
defendant was standing trial.6 As this was a similar reason for
which another African-American juror had been properly struck
without objection, there is no support for the defendant's claim
that the challenge to juror no. 31 was "disability
discrimination clothed as implicit bias."7
6 To the extent the defendant claims that this case involved an improper, race-based peremptory challenge, which he raises for the first time in his reply brief, it is waived. See Commonwealth v. Hampton, 64 Mass. App. Ct. 27, 33 n.8 (2005). Even if it were not waived, for the same reasons stated in the text above, the defendant failed to demonstrate that the judge abused her discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
7 Also, for the first time on appeal, the defendant claims that the allowance of the peremptory challenge to exclude juror no. 31 violated his right to an impartial jury under the State and Federal Constitutions. We disagree. Defendants are guaranteed a venire that represents a fair cross section of the community, and a violation occurs where a distinctive group has been systemically excluded from the venire. See Commonwealth v. Evans, 438 Mass. 142, 149 (2002), cert. denied, 538 U.S. 966 (2003), citing Taylor v. Louisiana, 419 U.S. 522, 537-538 (1975). Here, the defendant's claim lacks the factual predicate to establish that mentally ill venire members constitute "a distinctive group" or that such persons have become "significantly underrepresented in the venire." Evans, supra at 149-150. 13
2. Prearrest silence. The defendant further claims that
the prosecutor twice impermissibly asked the defendant about his
prearrest silence, and improperly employed that silence in her
closing argument. In the first instance during her cross-
examination of the defendant, the prosecutor asked whether,
after the shooting, he "[drove] to the police station to report
what happened." The second occurred when the prosecutor asked
the defendant whether he "use[d] the phone to call the police."
Over objections, the defendant answered both questions in the
negative. Although we agree that the questions and the argument8
on the matter were improper, the defendant did not suffer any
unfair prejudice.
Because these claimed errors were preserved, we must
determine whether the improper questions and argument
constituted prejudicial error. "An error is not prejudicial if
it 'did not influence the jury, or had but very slight effect';
however, if we cannot find 'with fair assurance, after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
8 In part, to rebut the suggestion that the defendant acted in self-defense, the prosecutor argued in her closing that "despite alleging that he was the victim, the defendant doesn't drive to the police station, he doesn't call the police, and he doesn’t tell you in his timeline of events that he ever sought any medical treatment as a result of this allegedly severe beating." The defendant objected to this portion of the argument. 14
error,' then it is prejudicial." Commonwealth v. Cruz, 445
Mass. 589, 591 (2005), quoting Commonwealth v. Flebotte, 417
Mass. 348, 353 (1994). See Kotteakos v. United States, 328 U.S.
750, 764-765 (1946). Under this standard, we ask "whether the
references to the defendant's prearrest silence improperly led
the jury to ascribe 'consciousness of guilt' to the defendant."
Commonwealth v. Correira, 492 Mass. 220, 236 (2023). See
Commonwealth v. Pierre, 486 Mass. 418, 433 (2020).
In Jenkins v. Anderson, 447 U.S. 231, 238-239 (1980), the
United States Supreme Court held that a defendant's prearrest
silence may be used to impeach his credibility without violating
the self-incrimination privilege of the Fifth Amendment to the
United States Constitution, as applied to the States through the
Fourteenth Amendment, or the fundamental fairness guarantee of
the Fourteenth Amendment. Nonetheless, the Court left it to the
States to "formulate [their] own rules of evidence to determine
when prior silence is so inconsistent with present statements
that impeachment by reference to such silence is probative."
Id. at 239.
In Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982), the
Supreme Judicial Court determined, as a matter of common law,
that impeachment of a defendant with the fact that he had an
opportunity to tell the police his story prior to his arrest
must be approached with caution. If undertaken, there must be a 15
foundation laid demonstrating that it would have been "natural"
for the defendant to speak in such circumstances. Id. See
Mass. G. Evid. § 613 note, at 201-202 (2024). See also
Commonwealth v. Gardner, 479 Mass. 764, 770 (2018); Commonwealth
v. Sosa, 79 Mass. App. Ct. 106, 110 n.4 (2011). One aspect of
the common law rule is that a defendant's decision not to speak
with police may not be used as substantive evidence of
consciousness of guilt. See Pierre, 486 Mass. at 433.
Despite the seeming incongruity of a self-defense claiming
defendant to not contact or speak to the police, the Supreme
Judicial Court has repeatedly noted that "there may be many
reasons why a defendant does not wish to come forward and speak
to the police that have no bearing on his [or her] guilt or
innocence." Correira, 492 Mass. at 234, quoting Gardner, 479
Mass. at 769. See Commonwealth v. Niemic, 472 Mass. 665, 673
(2015), S.C., 483 Mass. 571 (2019) (defendant, who claimed self-
defense at trial, would not naturally have contacted police
prior to arrest). Compare Pierre, 486 Mass. at 434, citing
Commonwealth v. Barnoski, 418 Mass. 523, 534 (1994) (not natural
for defendant to contact police where "no immediate danger to
another that could have created an incentive to contact the
police to get help").
Here, in response to the defendant's objections, the judge
cautioned the prosecutor to proceed with care because the 16
defendant did not have an obligation to speak to the police.
At that point, the prosecutor did not lay a foundation or
utilize other evidence to illustrate that it would have been
natural for the defendant to speak in these circumstances.
However, she merely established that the defendant had the
opportunity to drive to the police station or call the police,
but not that he had a duty to clear his name. Importantly,
although the questions were improper, the prosecutor never
directly asked the defendant why he did not tell the police that
he acted in self-defense or why he did not clear his name, but
she did argue in closing that a person acting in self-defense
would have done so. See Pierre, 486 Mass. at 433 (improper to
consider defendant's failure to "clear his name" as evidence of
consciousness of guilt). See also Nickerson, 386 Mass. at 61
("the judge should not have instructed the jury that, in
assessing the reliability of the defendant's testimony, they
could consider the defendant's prearrest failure to tell the
police" that another person committed the crime).
To determine whether the error did not influence the jury,
or had but very slight effect, "we ask whether the references to
the defendant's prearrest silence improperly led the jury to
ascribe 'consciousness of guilt' to the defendant." Correia,
492 Mass. at 236. Cf. Pierre, 486 Mass. at 433. Where there is
other, properly admitted evidence of consciousness of guilt, and 17
the improper references to prearrest silence are cumulative of
that properly admitted evidence, unfair prejudice is unlikely.
See Correira, supra at 236-237. Here, the defendant's testimony
on direct and cross-examination provided strong, if not
compelling, evidence of his consciousness of guilt. In the
immediate aftermath of the shooting, the defendant fled his
long-term Massachusetts home and went to New York. See
Commonwealth v. Martin, 467 Mass. 291, 297, 309-310 (2014)
(defendant's flight from Massachusetts to Virginia demonstrated
consciousness of guilt). He left behind his belongings; his
cell phone (which he always carried); his job; and several
family members, including five of his six children.9 In New
York, he altered his appearance by changing the distinctive hair
style he had been wearing for fifteen years. See Commonwealth
v. Carrion, 407 Mass. 263, 277 (1990) (evidence that defendant
altered his appearance after murder admissible to show
consciousness of guilt). Also, rather than purchasing a new
9 Also, the defendant testified that he could not remember where he left the car that he purportedly borrowed when he fled the scene of the shooting. He later claimed that he had another person notify the car's owner of its whereabouts, but then returned to not remembering where he left the car before agreeing that he left it in the Hyde Park section of Boston. See Commonwealth v. Edgerly, 390 Mass. 103, 109 (1983) ("a defendant's wilfully untrue testimony as to a material fact tends to show consciousness of guilt" [quotation and citation omitted]). 18
cell phone under his own name when he arrived in New York, the
defendant used his son's phone. All these matters provided the
jury with exceptionally strong evidence of consciousness of
guilt that overwhelmed or rendered merely cumulative the
improperly admitted evidence of the defendant's prearrest
silence.10 See Correira, supra; Pierre, supra at 434-435.
In addition to the properly admitted evidence of the
defendant's consciousness of guilt, the jury were also presented
with strong evidence of the defendant's role in the shooting.
This included the defendant's admission that he took the gun and
fired shots at the victim, and the eyewitness corroborations
that the defendant had the gun and shot the victims. Finally,
any evaluation of prejudice in this case must include an
examination of the verdicts. On an indictment charging first-
degree murder, the jury convicted the defendant of the lesser
included offense of voluntary manslaughter. The most plausible
explanation for this is that the jury largely credited the
defendant's testimony regarding his mitigating view of the case
presented by the Commonwealth. In the end, when looking at the
entire trial, we conclude that the improperly admitted evidence
10Furthermore, in the judge's jury instruction on consciousness of guilt, she expressly referenced evidence that the defendant "may have fled to New York" and "may have changed his appearance," but she made no reference to the defendant's prearrest silence vis-à-vis the police. This further limited any prejudice resulting from the improperly admitted evidence. 19
and the subsequent argument did not influence the jury, or that
it had but very slight effect. See Cruz, 445 Mass. at 591. The
defendant did not suffer any unfair prejudice.
3. Firearm offenses. Finally, the defendant claims that
the judge erred by failing to instruct the jury that as an
element of the crimes of unlawful possession of a firearm and
unlawful possession of a loaded firearm,11 the Commonwealth had
the burden of disproving that the defendant had a license to
possess a firearm. We agree.
In Commonwealth v. Guardado, 491 Mass. 666 (2023) (Guardado
I), S.C., 493 Mass. 1 (2023) (Guardado II), petition for cert.
filed, U.S. Supreme Ct., No. 23-886 (Feb. 14, 2024), the Supreme
Judicial Court held that the due process clause of the
Fourteenth Amendment and the Second Amendment to the United
States Constitution require the Commonwealth to bear the burden
of disproving that a defendant had a license to possess a
firearm when prosecuting a defendant for unlawful possession of
a firearm, and the jury instructions must relay this burden.
Guardado I, supra at 668, 692-693. Where the judge does not
11"Illegal possession of a loaded firearm, under G. L. c. 269, § 10 (n), is not an independent charge but, rather, 'constitute[s] further punishment of a defendant who also [has] been convicted under G. L. c. 269, § 10 (a).'" Commonwealth v. Guardado, 491 Mass. 666, 670 n.4 (2023) (Guardado I), S.C., 493 Mass. 1 (2023) (Guardado II), petition for cert. filed, U.S. Supreme Ct., No. 23-886 (Feb. 14, 2024), quoting Commonwealth v. Tate, 490 Mass. 501, 520 (2022). 20
instruct on this burden, and where there is an absence of record
evidence on the lack of license, the defendant is entitled to
vacatur of the conviction. See Commonwealth v. Gibson, 492
Mass. 559, 579 (2023). The Supreme Judicial Court's holding in
Guardado I "applies prospectively and to those cases that were
active or pending on direct review as of the date of the
issuance of [New York State Rifle & Pistol Ass'n v. Bruen, 597
U.S. 1 (2022) (Bruen)]." Guardado I, supra at 694. Because the
instant defendant's direct appeal was pending at the time of the
issuance of Bruen on June 23, 2022, he is entitled to the
application of Guardado I. See Gibson, supra; Guardado I,
supra. In Guardado II, the Supreme Judicial Court clarified
that the remedy for an improper jury instruction outlined in
Guardado I was a new trial, and not a judgment of acquittal.
See Commonwealth v. Sosa, 493 Mass. 104, 120 (2023).
Here, it is undisputed, and understandably so, that the
judge did not instruct on an element of the firearm offenses
that did not exist at the time of trial. On our review of the
record, we could find no direct evidence that was introduced to
support any claim that the defendant did not have the necessary
license. Contrast Commonwealth v. Bookman, 492 Mass. 396, 401
(2023) (failure to give licensure instruction was harmless
beyond reasonable doubt where there was undisputed testimony 21
that defendant had no license). The Commonwealth does not claim
otherwise.
Instead, the Commonwealth claims that there was
circumstantial evidence from which an inference can be drawn to
support the conclusion that the defendant was not licensed. As
a result, it asserts that the error was harmless beyond a
reasonable doubt. See Bookman, 492 Mass. at 401. That
circumstantial evidence included the defendant's testimony that
the gun did not belong to him; Fonesca tried to sell him the gun
around a month prior to the shooting; the victim beat the
defendant with the gun; and the defendant only picked up the gun
when it was dropped during that beating. From these facts,
which were not part of the Commonwealth's case, the Commonwealth
claims that the jury could reasonably infer that the defendant
was not properly licensed, as he did not own the gun and thus
had no reason to be licensed. We disagree.
The Commonwealth is correct that inferences from
circumstantial evidence need only be "reasonable and possible,"
and not "necessary or inescapable." Commonwealth v. Casale, 381
Mass. 167, 173 (1980). However, "[t]he question of guilt must
not be left to conjecture or surmise." Commonwealth v.
Anderson, 396 Mass. 306, 312 (1985). Here, the inference that
the defendant was not licensed is merely conjecture. The
suggestion that the defendant was unlicensed because he did not 22
own the gun used in the shooting does not a fortiori establish
that he was unlicensed to own any gun. But even if the
inference was permissible, for purposes of the harmless beyond a
reasonable doubt analysis, the question is not whether the
inference supporting the missing element is reasonable and
possible. Rather, it is whether "the omitted element was
uncontested and supported by overwhelming evidence, such that
the jury verdict would have been the same absent the error."
Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847 (2018),
quoting Neder v. United States, 527 U.S. 1, 17 (1999). In this
light, even assuming the permissibility of the inference, the
evidence of the defendant not being licensed was certainly not
overwhelming. Accordingly, the error was not harmless beyond a
reasonable doubt, and the defendant is entitled to a new trial
on the firearm indictments.
4. Conclusion. For the reasons set forth above, we affirm
the defendant's conviction of voluntary manslaughter. We vacate
and set aside his convictions of unlawful possession of a
firearm and unlawful possession of a loaded firearm and remand
the case for further proceedings consistent with this opinion.
So ordered.