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
24-P-830
COMMONWEALTH
vs.
MICHAEL D. LAVOIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in District Court, the
defendant was convicted of carrying a firearm without a license,
G. L. c. 269, § 10 (a), and carrying a loaded firearm without a
license, G. L. c. 269, § 10 (n).1 On appeal, the defendant
contends that the judge erred in admitting testimony from an
employee from the Department of Criminal Justice Information
Services (DCJIS) and a printout of a search of the firearm
1At the request of the Commonwealth, the judge dismissed the charge of possession of a firearm during the commission of a felony, G. L. c. 265, § 18B. The judge granted the defendant's motion for a required finding of not guilty on the charge of assault with a dangerous weapon, G. L. c. 265, § 15B (b). The judge found the defendant not guilty of possessing ammunition without a firearms identification card, G. L. c. 269, § 10 (h), because it was duplicative of the charge of carrying a loaded firearm without a license. license database showing that the defendant did not have a
license to carry. The defendant also claims that there was
insufficient evidence to find that he knew the firearm was
loaded. We affirm.
Background. "Because the defendant challenges the
sufficiency of the evidence presented, we summarize the facts
the jury could have found in the light most favorable to the
Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431
(2015). Around 1:20 A.M. on April 30, 2022, a man went to the
Worcester police station, reported that there had been an
incident at a local bar involving a firearm, and provided a
description and photograph of the suspect. Multiple officers
went to the bar and waited for someone matching that description
to walk outside. The officers eventually detained the
defendant, asked if he had any weapons, and removed a firearm
from the defendant's front pants pocket. After being advised of
his Miranda rights, the defendant told an officer that he was
holding the firearm for a friend.
At trial, an employee from DCJIS testified that he obtained
the defendant's name and date of birth from the district
attorney's office. The Commonwealth also entered into evidence
a certified record from the registry of motor vehicles showing
the defendant's name and birth date. The DCJIS employee
testified that he used that information to conduct a search of
2 the DCJIS-maintained Statewide firearm license database. After
running that query, he received a response indicating that no
record existed of the defendant having a license to carry a
firearm. The judge also allowed into evidence, over the
defendant's objection, a printout showing "no records found" for
a search of the DCJIS-maintained database using the defendant's
name and birth date.
Discussion. 1. DCJIS employee testimony. The defendant
argues that the DCJIS employee's testimony regarding the result
of his search of the firearm license database was inadmissible
hearsay. We review evidentiary rulings for abuse of discretion
and "do not disturb a trial judge's decision absent a clear
error of judgment in weighing the relevant factors" (quotations
and citation omitted). Commonwealth v. McDonagh, 480 Mass. 131,
140 (2018).
The DCJIS employee's testimony did not violate the rule
against inadmissible hearsay. See Mass. G. Evid. § 802 (2025).
"Under our common law, testimony that a search of public records
did not turn up a record is admissible to prove the nonexistence
of such a record." Commonwealth v. Smith, 496 Mass. 304, 308
(2025). See Mass. G. Evid. § 803 (10) (2025). The witness "who
is offered to testify that a search of a database of public
records failed to return a record must be familiar with the
process of searching the database and with the government
3 record-keeping practices with respect to the database." Smith,
supra at 305. Here, the DCJIS employee testified that he had
conducted "thousands" of database searches in his career. He
stated that the firearms records bureau is the repository for
all records regarding licenses to carry, firearms identification
cards (FID card), and weapons transfers in the State, and that
licensing authorities process applications for licenses to carry
and FID cards and provide information from each application to
DCJIS through the Massachusetts instant record check system.
The employee further explained how a police officer or DCJIS
employee can search the database to obtain licensing information
on a particular person and what happens if a name or birth date
is entered into the system incorrectly. Although it would have
been better for the Commonwealth to elicit additional testimony
on how DCJIS maintains and updates its database, including with
respect to licenses that have been revoked or expired, see id.
at 313, the employee's testimony was sufficient to establish
that "he was familiar with the process of searching the database
and . . . he understood the relevant government record-keeping
practices." Id.
We also reject the defendant's claim that the DCJIS
employee's testimony violated his right to confront witnesses
against him under the Sixth Amendment to the United States
Constitution. In Smith, the Supreme Judicial Court rejected an
4 identical challenge under the Sixth Amendment and art. 12 of the
Massachusetts Declaration of Rights. See Smith, 496 Mass. at
313-315. It explained that the "touchstone" of the
confrontation clause analysis is whether "the primary purpose of
a declarant's out-of-court statement is testimonial or
nontestimonial -- that is, whether the statement is intended to
'prove past events potentially relevant to later criminal
prosecution.'" Id. at 313, quoting Commonwealth v. Middlemiss,
465 Mass. 627, 634 (2013). Agency records are generally
admissible absent confrontation because they are "created for
the administration of an entity's affairs and not for the
purpose of establishing or proving some fact at trial." Smith,
supra at 314, quoting Commonwealth v. Zeininger, 459 Mass. 775,
786, cert. denied, 565 U.S. 967 (2011). In particular, because
"the contents of DCJIS's database were not created with the
'primary purpose' of creating evidence for use at trial,"
testimony about an employee's search of that database does not
violate a defendant's right to confront witnesses against him.
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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
24-P-830
COMMONWEALTH
vs.
MICHAEL D. LAVOIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in District Court, the
defendant was convicted of carrying a firearm without a license,
G. L. c. 269, § 10 (a), and carrying a loaded firearm without a
license, G. L. c. 269, § 10 (n).1 On appeal, the defendant
contends that the judge erred in admitting testimony from an
employee from the Department of Criminal Justice Information
Services (DCJIS) and a printout of a search of the firearm
1At the request of the Commonwealth, the judge dismissed the charge of possession of a firearm during the commission of a felony, G. L. c. 265, § 18B. The judge granted the defendant's motion for a required finding of not guilty on the charge of assault with a dangerous weapon, G. L. c. 265, § 15B (b). The judge found the defendant not guilty of possessing ammunition without a firearms identification card, G. L. c. 269, § 10 (h), because it was duplicative of the charge of carrying a loaded firearm without a license. license database showing that the defendant did not have a
license to carry. The defendant also claims that there was
insufficient evidence to find that he knew the firearm was
loaded. We affirm.
Background. "Because the defendant challenges the
sufficiency of the evidence presented, we summarize the facts
the jury could have found in the light most favorable to the
Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431
(2015). Around 1:20 A.M. on April 30, 2022, a man went to the
Worcester police station, reported that there had been an
incident at a local bar involving a firearm, and provided a
description and photograph of the suspect. Multiple officers
went to the bar and waited for someone matching that description
to walk outside. The officers eventually detained the
defendant, asked if he had any weapons, and removed a firearm
from the defendant's front pants pocket. After being advised of
his Miranda rights, the defendant told an officer that he was
holding the firearm for a friend.
At trial, an employee from DCJIS testified that he obtained
the defendant's name and date of birth from the district
attorney's office. The Commonwealth also entered into evidence
a certified record from the registry of motor vehicles showing
the defendant's name and birth date. The DCJIS employee
testified that he used that information to conduct a search of
2 the DCJIS-maintained Statewide firearm license database. After
running that query, he received a response indicating that no
record existed of the defendant having a license to carry a
firearm. The judge also allowed into evidence, over the
defendant's objection, a printout showing "no records found" for
a search of the DCJIS-maintained database using the defendant's
name and birth date.
Discussion. 1. DCJIS employee testimony. The defendant
argues that the DCJIS employee's testimony regarding the result
of his search of the firearm license database was inadmissible
hearsay. We review evidentiary rulings for abuse of discretion
and "do not disturb a trial judge's decision absent a clear
error of judgment in weighing the relevant factors" (quotations
and citation omitted). Commonwealth v. McDonagh, 480 Mass. 131,
140 (2018).
The DCJIS employee's testimony did not violate the rule
against inadmissible hearsay. See Mass. G. Evid. § 802 (2025).
"Under our common law, testimony that a search of public records
did not turn up a record is admissible to prove the nonexistence
of such a record." Commonwealth v. Smith, 496 Mass. 304, 308
(2025). See Mass. G. Evid. § 803 (10) (2025). The witness "who
is offered to testify that a search of a database of public
records failed to return a record must be familiar with the
process of searching the database and with the government
3 record-keeping practices with respect to the database." Smith,
supra at 305. Here, the DCJIS employee testified that he had
conducted "thousands" of database searches in his career. He
stated that the firearms records bureau is the repository for
all records regarding licenses to carry, firearms identification
cards (FID card), and weapons transfers in the State, and that
licensing authorities process applications for licenses to carry
and FID cards and provide information from each application to
DCJIS through the Massachusetts instant record check system.
The employee further explained how a police officer or DCJIS
employee can search the database to obtain licensing information
on a particular person and what happens if a name or birth date
is entered into the system incorrectly. Although it would have
been better for the Commonwealth to elicit additional testimony
on how DCJIS maintains and updates its database, including with
respect to licenses that have been revoked or expired, see id.
at 313, the employee's testimony was sufficient to establish
that "he was familiar with the process of searching the database
and . . . he understood the relevant government record-keeping
practices." Id.
We also reject the defendant's claim that the DCJIS
employee's testimony violated his right to confront witnesses
against him under the Sixth Amendment to the United States
Constitution. In Smith, the Supreme Judicial Court rejected an
4 identical challenge under the Sixth Amendment and art. 12 of the
Massachusetts Declaration of Rights. See Smith, 496 Mass. at
313-315. It explained that the "touchstone" of the
confrontation clause analysis is whether "the primary purpose of
a declarant's out-of-court statement is testimonial or
nontestimonial -- that is, whether the statement is intended to
'prove past events potentially relevant to later criminal
prosecution.'" Id. at 313, quoting Commonwealth v. Middlemiss,
465 Mass. 627, 634 (2013). Agency records are generally
admissible absent confrontation because they are "created for
the administration of an entity's affairs and not for the
purpose of establishing or proving some fact at trial." Smith,
supra at 314, quoting Commonwealth v. Zeininger, 459 Mass. 775,
786, cert. denied, 565 U.S. 967 (2011). In particular, because
"the contents of DCJIS's database were not created with the
'primary purpose' of creating evidence for use at trial,"
testimony about an employee's search of that database does not
violate a defendant's right to confront witnesses against him.
Smith, supra at 315. Accordingly, it was not error to allow the
DCJIS employee to testify about his search results.
2. Admission of printout. The defendant also challenges
on hearsay and confrontation clause grounds the admission of the
printout showing "no records found" in response to a search of
the DCJIS-maintained database with the defendant's name and
5 birth date.2 As discussed, because the contents of the firearms
license database were not created with the "primary purpose" of
creating evidence for use at trial, the admission of a record
showing the result of a search of that database does not violate
the confrontation clause. See Smith, 496 Mass. at 314-315. Nor
was the printout hearsay. See id. at 315 n.13. "[B]ecause
computer-stored records contain statements of human beings, they
can in certain circumstances constitute hearsay; but computer-
generated records, which contain only the results of computer
programs, cannot." Commonwealth v. Brea, 488 Mass. 150, 160
(2021). The printout qualifies as a computer-generated record
because it was generated by applying a designated algorithm to
the defendant's identifying information and did not "require
human participation" to generate its result. Commonwealth v.
Royal, 89 Mass. App. Ct. 168, 171 (2016). Accordingly, the
judge did not abuse his discretion in allowing the printout into
evidence.
3. Sufficiency of the evidence. Lastly, the defendant
contends that there was insufficient evidence that he knew that
2 Although the printout appears to have been generated as the result of a search conducted by someone else at DCJIS, the testifying employee stated that it was "a fair representation of the result that [he] personally saw when [he] ran the [search]." The defendant does not contend that the document was insufficiently authenticated. See Mass. G. Evid. § 901 (a) (2025).
6 the firearm was loaded. "[T]o sustain a conviction under G. L.
c. 269, § 10 (n), the Commonwealth must prove that a defendant
knew the firearm he or she possessed was loaded." Commonwealth
v. Brown, 479 Mass. 600, 601 (2018). In determining whether the
evidence was sufficient to sustain a conviction, we consider the
evidence in the light most favorable to the Commonwealth.
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "A
conviction may rest exclusively on circumstantial evidence, and,
in evaluating that evidence, we draw all reasonable inferences
in favor of the Commonwealth." Commonwealth v. Jones, 477 Mass.
307, 316 (2017). Inferences "need only be reasonable and
possible and need not be necessary or inescapable" (citation
omitted). Commonwealth v. Gomez, 495 Mass. 688, 693 (2025).
The fact that the defendant was carrying the firearm in his
front pants pocket supports a reasonable inference that he knew
it was loaded, because carrying a firearm in such a manner
"creates a heightened risk of self-injury in the event of an
accidental discharge, so that a prudent person would check
whether the firearm is loaded." Commonwealth v. Grayson, 96
Mass. App. Ct. 748, 752 & n.7 (2019) (defendant found with
firearm in his waistband). See Commonwealth v. Resende, 94
Mass. App. Ct. 194, 200-201 (2018) (same). See also
Commonwealth v. Cooper, 97 Mass. App. Ct. 772, 774 (2020)
(reasonable to infer that defendant would check whether firearm
7 was loaded before tucking it into armpit area). That inference
is strengthened by several other facts. See Grayson, supra at
752-753 & n.10. In the middle of the night, the police received
a report describing the defendant and stating that he had been
involved in an incident with a firearm at a bar. Officers later
used that description to identify the defendant as he left the
bar and found the weapon on him. In addition, the defendant
told an officer that he was holding the firearm for a friend,
and it is reasonable to infer that in such circumstances the
defendant would have asked his friend whether the firearm was
loaded or checked it himself. Accordingly, there was sufficient
evidence to find beyond a reasonable doubt that the defendant
knew the firearm was loaded. See Resende, supra at 200-201.
Judgments affirmed.
By the Court (Vuono, Meade & Toone, JJ.3),
Clerk
Entered: August 8, 2025.
3 The panelists are listed in order of seniority.