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
25-P-477
COMMONWEALTH
vs.
MICHAEL DEPERSIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Michael Depersis, and his codefendant, Matthew MacDougall, were
both convicted of carrying a firearm without a license. On
appeal, the defendant argues that (1) the licensing statute
under which he was prosecuted was facially unconstitutional;
(2) the jury instructions erroneously permitted conviction on a
"possession through another" theory without requiring proof that
the defendant knew the codefendant lacked a license to carry;
(3) the trial judge erred by permitting the Commonwealth to
supply essential evidence on redirect examination of a witness;
and (4) a different judge (motion judge) erred in denying the defendant's motion to sever his trial from that of his
codefendant.1 We affirm.
Discussion. 1. Facial challenge to firearm licensing
scheme. The defendant contends that the charges against him
should have been dismissed because the Massachusetts firearm
licensing statute in effect at the time of his arrest, G. L.
c. 140, § 131 (d), as amended through St. 2018, c. 123, §§ 11,
12, was facially unconstitutional under New York State Rifle &
Pistol Ass'n v. Bruen, 597 U.S. 1, 17 (2022). This claim is
unavailing for the reasons set forth in Commonwealth v.
Rodriguez, 496 Mass. 627, 639-642 (2025).
2. Jury instructions. The defendant argues that the
judge's instructions regarding possession of a firearm without a
license "through another person" were improper. He contends
that liability under such a theory required the jury to find
that the other person's possession was itself unlawful and that
the defendant knew it was unlawful. Because the defendant did
not object to the judge's instructions, "we review for any error
that could have created a substantial risk of a miscarriage of
justice." Commonwealth v. Sann Than, 442 Mass. 748, 752 (2004).
The Commonwealth proceeded on a theory of principal liability --
that the defendant himself possessed the firearm, either
1 The codefendant's appeal, if any, is not before us.
2 actually or constructively -- rather than on a theory of joint
venture liability.
The judge instructed that possession requires "knowledge of
the object, the ability to exercise control over that object,
either directly or through another person," and the "intent" to
do so, and cautioned that mere presence is insufficient. These
instructions properly tracked the settled definition of
constructive possession. See Sann Than, 442 Mass. at 755;
Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004).
The defendant's argument conflates constructive possession
with joint venture liability. To prove a defendant guilty of
unlawfully possessing a firearm as a joint venturer, the
Commonwealth must show that the defendant knew that the
principal possessed the firearm unlawfully. See Commonwealth v.
Severino, 106 Mass. App. Ct. 170, 177 (2025) ("an essential
element of joint venture liability for [a firearms possession
offense] is that the coventurer lacked a firearms license").
Constructive possession, by contrast, focuses on the defendant's
own relationship to the firearm. See Commonwealth v. Francis,
104 Mass. App. Ct. 593, 601-602 (2024). Accordingly, the
Commonwealth needed to prove only that the defendant's
possession was unlawful.
3 Because the Commonwealth did not proceed on a joint venture
theory and the instructions accurately stated the law of
constructive possession, no error occurred.
3. Redirect testimony. The defendant next argues that the
judge erred in permitting the Commonwealth, on redirect
examination, to ask the booking officer the defendant's date of
birth, a topic not addressed during cross-examination.
Trial judges have "considerable discretion over the scope
of redirect examination." Commonwealth v. Garcia, 470 Mass. 24,
36 (2014). See Commonwealth v. Smith, 329 Mass. 477, 479 (1952)
("[T]he extent to which redirect examination of a witness may be
directed as to matters not brought out in cross-examination is
within the discretion of the judge"). Reversal for abuse of
discretion is warranted only where the judge's ruling reflects
"a clear error of judgment . . . such that the decision falls
outside the range of reasonable alternatives" (citation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge's ruling here fell well within the range of
reasonableness.
In Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 245-
246 (2009), this court held that a trial judge did not abuse her
discretion in permitting the Commonwealth, on redirect
examination, to introduce testimony beyond the scope of cross-
4 examination concerning the distance of the defendant's drug
offense from a nearby school, where the defendant did not
demonstrate unfair prejudice. Here, the defendant has no
plausible claim that the testimony about his date of birth
resulted in surprise or unfair prejudice. Moreover, even if the
officer's response was excluded, the Commonwealth could have
recalled him later or could have called another witness to
testify about the defendant's date of birth. See Commonwealth
v. Shine, 398 Mass. 641, 656 (1986) (prosecution permitted to
reopen case and recall witness to introduce material evidence).
The judge's "time-saving decision" to permit the testimony on
redirect was not an abuse of discretion. Rodriguez, supra at
246.
For the first time on appeal, the defendant argues that the
booking officer's recollection was improperly refreshed by his
booking report. We discern no error, let alone a substantial
risk of miscarriage of justice. "A witness may use a writing to
refresh a failing memory. However, the testimony which the
witness then gives must be the product of present recollection."
Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978). The officer
testified that reviewing the report refreshed his recollection
as to the defendant's date of birth, and he testified based on
his refreshed recollection. As the prosecutor followed the book
5 in refreshing the officer's recollection, see Mass. G. Evid.
§ 612(a) (2025), and the defendant did not object, the judge did
not abuse her discretion by failing to exclude the testimony sua
sponte.
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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
25-P-477
COMMONWEALTH
vs.
MICHAEL DEPERSIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Michael Depersis, and his codefendant, Matthew MacDougall, were
both convicted of carrying a firearm without a license. On
appeal, the defendant argues that (1) the licensing statute
under which he was prosecuted was facially unconstitutional;
(2) the jury instructions erroneously permitted conviction on a
"possession through another" theory without requiring proof that
the defendant knew the codefendant lacked a license to carry;
(3) the trial judge erred by permitting the Commonwealth to
supply essential evidence on redirect examination of a witness;
and (4) a different judge (motion judge) erred in denying the defendant's motion to sever his trial from that of his
codefendant.1 We affirm.
Discussion. 1. Facial challenge to firearm licensing
scheme. The defendant contends that the charges against him
should have been dismissed because the Massachusetts firearm
licensing statute in effect at the time of his arrest, G. L.
c. 140, § 131 (d), as amended through St. 2018, c. 123, §§ 11,
12, was facially unconstitutional under New York State Rifle &
Pistol Ass'n v. Bruen, 597 U.S. 1, 17 (2022). This claim is
unavailing for the reasons set forth in Commonwealth v.
Rodriguez, 496 Mass. 627, 639-642 (2025).
2. Jury instructions. The defendant argues that the
judge's instructions regarding possession of a firearm without a
license "through another person" were improper. He contends
that liability under such a theory required the jury to find
that the other person's possession was itself unlawful and that
the defendant knew it was unlawful. Because the defendant did
not object to the judge's instructions, "we review for any error
that could have created a substantial risk of a miscarriage of
justice." Commonwealth v. Sann Than, 442 Mass. 748, 752 (2004).
The Commonwealth proceeded on a theory of principal liability --
that the defendant himself possessed the firearm, either
1 The codefendant's appeal, if any, is not before us.
2 actually or constructively -- rather than on a theory of joint
venture liability.
The judge instructed that possession requires "knowledge of
the object, the ability to exercise control over that object,
either directly or through another person," and the "intent" to
do so, and cautioned that mere presence is insufficient. These
instructions properly tracked the settled definition of
constructive possession. See Sann Than, 442 Mass. at 755;
Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004).
The defendant's argument conflates constructive possession
with joint venture liability. To prove a defendant guilty of
unlawfully possessing a firearm as a joint venturer, the
Commonwealth must show that the defendant knew that the
principal possessed the firearm unlawfully. See Commonwealth v.
Severino, 106 Mass. App. Ct. 170, 177 (2025) ("an essential
element of joint venture liability for [a firearms possession
offense] is that the coventurer lacked a firearms license").
Constructive possession, by contrast, focuses on the defendant's
own relationship to the firearm. See Commonwealth v. Francis,
104 Mass. App. Ct. 593, 601-602 (2024). Accordingly, the
Commonwealth needed to prove only that the defendant's
possession was unlawful.
3 Because the Commonwealth did not proceed on a joint venture
theory and the instructions accurately stated the law of
constructive possession, no error occurred.
3. Redirect testimony. The defendant next argues that the
judge erred in permitting the Commonwealth, on redirect
examination, to ask the booking officer the defendant's date of
birth, a topic not addressed during cross-examination.
Trial judges have "considerable discretion over the scope
of redirect examination." Commonwealth v. Garcia, 470 Mass. 24,
36 (2014). See Commonwealth v. Smith, 329 Mass. 477, 479 (1952)
("[T]he extent to which redirect examination of a witness may be
directed as to matters not brought out in cross-examination is
within the discretion of the judge"). Reversal for abuse of
discretion is warranted only where the judge's ruling reflects
"a clear error of judgment . . . such that the decision falls
outside the range of reasonable alternatives" (citation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge's ruling here fell well within the range of
reasonableness.
In Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 245-
246 (2009), this court held that a trial judge did not abuse her
discretion in permitting the Commonwealth, on redirect
examination, to introduce testimony beyond the scope of cross-
4 examination concerning the distance of the defendant's drug
offense from a nearby school, where the defendant did not
demonstrate unfair prejudice. Here, the defendant has no
plausible claim that the testimony about his date of birth
resulted in surprise or unfair prejudice. Moreover, even if the
officer's response was excluded, the Commonwealth could have
recalled him later or could have called another witness to
testify about the defendant's date of birth. See Commonwealth
v. Shine, 398 Mass. 641, 656 (1986) (prosecution permitted to
reopen case and recall witness to introduce material evidence).
The judge's "time-saving decision" to permit the testimony on
redirect was not an abuse of discretion. Rodriguez, supra at
246.
For the first time on appeal, the defendant argues that the
booking officer's recollection was improperly refreshed by his
booking report. We discern no error, let alone a substantial
risk of miscarriage of justice. "A witness may use a writing to
refresh a failing memory. However, the testimony which the
witness then gives must be the product of present recollection."
Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978). The officer
testified that reviewing the report refreshed his recollection
as to the defendant's date of birth, and he testified based on
his refreshed recollection. As the prosecutor followed the book
5 in refreshing the officer's recollection, see Mass. G. Evid.
§ 612(a) (2025), and the defendant did not object, the judge did
not abuse her discretion by failing to exclude the testimony sua
sponte.
4. Joinder and motion to sever. Finally, the defendant
contends that the motion judge erred in denying his motion to
sever his trial from that of his codefendant. He argues that
the codefendants advanced mutually antagonistic defenses such
that acceptance of one defense necessarily undermined the other,
thereby creating a substantial risk of prejudice that could not
be cured by jury instructions.
"[T]he decision whether to join offenses for trial is a
matter left to the sound discretion of the judge, and will not
be reversed unless there has been a clear abuse of discretion"
(quotation and citations omitted). Commonwealth v. Pillai, 445
Mass. 175, 179-180 (2005). "Denial of a motion for severance is
an abuse of discretion when the prejudice resulting from a joint
trial is so compelling that it prevents a defendant from
obtaining a fair trial" (quotation and citation omitted).
Commonwealth v. Vasquez, 462 Mass. 827, 836 (2012).
"It is not enough for the defendant to show merely that his
chances for acquittal would have been better" if he had been
tried alone. Commonwealth v. Wilson, 427 Mass. 336, 346-347
6 (1998). Rather, "severance is required only if the defenses are
both mutually antagonistic (or mutually exclusive) and
irreconcilable." Vasquez, 462 Mass. at 836. Defenses reach
that level where "[t]he sole defense of each [defendant] was the
guilt of the other." Commonwealth v. Moran, 387 Mass. 644, 656
(1982), quoting United States v. Crawford, 581 F.2d 489, 492
(5th Cir. 1978).
The record does not support the defendant's
characterization of the defenses as mutually antagonistic.
During opening statements, counsel for the defendant argued that
the Commonwealth would be unable to prove that the defendant
fired the weapon, possessed it, or "did anything wrong that
night," emphasizing that he was merely a passenger in the
vehicle and that the evidence would not identify him as the
person who possessed or discharged the firearm. Counsel for the
codefendant advanced a similar theory, arguing that the
Commonwealth would be unable to prove that MacDougall possessed
or controlled the firearm, and highlighting the absence of
fingerprint, DNA, or gunshot residue testing. Both defendants
thus sought to create reasonable doubt by challenging the
sufficiency and reliability of the Commonwealth's evidence
rather than by attributing culpability to the other. Thus, the
defendant has not demonstrated the type of compelling prejudice
7 that warrants severance, and the motion judge did not abuse his
discretion in denying the motion.
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ.2),
Clerk
Entered: April 15, 2026.
2 The panelists are listed in order of seniority.