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-1373
COMMONWEALTH
vs.
MIGUEL BAPTISTA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the defendant, Miguel
Baptista, appeals from his conviction for unlawful possession of
a firearm in violation of G. L. c. 269, § 10 (a). 1 He argues
that his pretrial motion to suppress evidence, including gunshot
residue found on his hands, should have been allowed because the
police did not have reasonable suspicion to stop him when they
1Before trial, an indictment for possession of ammunition without a firearms identification card, G. L. c. 269, § 10 (h) (1), was dismissed at the request of the Commonwealth. The jury acquitted the defendant of carrying a loaded firearm without a license, G. L. c. 269, § 10 (n); possession of a large capacity firearm, G. L. c. 269, § 10 (m); and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). After trial, by agreement of the parties, the Commonwealth dismissed the subsequent offense portion of the indictment on which the defendant was convicted. saw him running near the scene of a recent shooting. He further
argues that the evidence at trial was insufficient to prove that
he possessed a firearm found under a bush along his route. We
affirm.
Background. Based on the evidence presented at trial, the
jury could have found as follows. At about 5:30 P.M. on
November 26, 2019, multiple gunshots rang out on Annunciation
Road in the Roxbury section of Boston. A woman sitting in a
parked car at a community center was shot. About a block away
from the shooting scene, a bystander saw a man who was jogging
throw something into a bush along Parker Street.
Nearby, Boston police Officers Sean Murphy and Martin
Dunlap were on patrol in a marked cruiser. They drove on Parker
Street toward the sound of the gunshots and saw people walking
away from the area who appeared to be in shock. The defendant
drew the officers' attention because he was running and was
barefoot. At first he ran straight toward the cruiser, but then
he veered across Parker Street. The officers got out of the
cruiser and chased him. While running, the defendant took off
his jacket and discarded it in the middle of the street. The
officers caught up to him and placed him in handcuffs.
The police canvassed the route from where the defendant was
apprehended on Parker Street to the shooting scene. Alerted by
the bystander, an officer looked in the bush and found a nine-
2 millimeter Ruger semiautomatic firearm. Approximately one block
from where the firearm was found, on the corner of Parker Street
and Annunciation Road, was the defendant's right sneaker. On
Annunciation Road, about halfway between the right sneaker and
the shooting scene, was his left sneaker. In the area of the
shooting were thirty-three spent shell casings. Based on
comparison testing, a ballistician opined that twenty-two of
them had been ejected from the Ruger. From the shooting
victim's car, the police recovered ballistics evidence including
a projectile in the trunk. The ballistician opined that it had
been fired from the Ruger. 2
The defendant was transported to a police station, where
both of his hands tested positive for gunshot residue, showing
that he had either fired a gun, been in the vicinity of a gun
being fired, or touched something with gunshot residue on it.
The defendant did not have a license to carry a firearm.
Interviewed by detectives, the defendant was evasive about
whether he had been on Annunciation Road, but admitted that he
"made a left" onto Parker Street. He stated that he ran because
he heard gunshots; asked how far away from him the gunshots
2 On the roof of the community center, the police found a second nine-millimeter firearm. The ballistician opined that four cartridge casings found at the shooting scene were ejected from that firearm, but that a bullet fragment in the victim's car was not shot from it.
3 were, he said, "I don't know, I'm not a scientist," and they
could have been ten feet or one hundred feet away.
In closing, defense counsel argued that the defendant was
an innocent bystander who heard gunshots and ran, and the
gunshot residue could have gotten on his hands when he fell and
touched the ground.
Discussion. 1. Motion to suppress. We summarize the
facts as found by the motion judge, which we accept absent clear
error, and supplement them with uncontested facts in the record
that are consistent with her findings. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 430 (2015). We "review
independently the application of constitutional principles to
the facts found." Commonwealth v. Warren, 475 Mass. 530, 534
(2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393
(2004).
When Officers Murphy and Dunlap heard the gunshots, they
were two or three blocks away from Annunciation Road. In their
marked cruiser, the officers drove toward the sound of the
gunshots and saw people walking away from the area, some of whom
appeared to be in fear. The only person running was the
defendant. He was running away from Annunciation Road before he
saw the police officers, and not in reaction to seeing them. At
first the defendant ran straight toward the cruiser, but then he
changed direction. At some point, the officers noticed that he
4 had no shoes on. The officers got out of the cruiser and ran
after him. One or both officers ordered the defendant to stop.
While running, the defendant took off his jacket and discarded
it in the middle of the street. The officers stopped the
defendant and handcuffed him. The defendant was taken into
custody at 5:31 P.M., which was about one minute after the
report of shots fired had been broadcast on the police radio.
In analyzing the legality of the stop, we first consider at
what point the stop occurred, that is, when "in the
circumstances, a reasonable person would believe that an officer
would compel him or her to stay." Commonwealth v. Matta, 483
Mass. 357, 363 (2019). We conclude that the stop occurred when
the officers chased the defendant and ordered him to stop. See
Warren, 475 Mass. at 534 (seizure occurred when officer ordered
defendant to stop running and pursued him).
Next, we consider whether the stop was justified. "To
justify a police investigatory stop under the Fourth Amendment
or art. 14, the police must have 'reasonable suspicion' that the
person has committed, is committing, or is about to commit a
crime." Commonwealth v.
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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
23-P-1373
COMMONWEALTH
vs.
MIGUEL BAPTISTA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the defendant, Miguel
Baptista, appeals from his conviction for unlawful possession of
a firearm in violation of G. L. c. 269, § 10 (a). 1 He argues
that his pretrial motion to suppress evidence, including gunshot
residue found on his hands, should have been allowed because the
police did not have reasonable suspicion to stop him when they
1Before trial, an indictment for possession of ammunition without a firearms identification card, G. L. c. 269, § 10 (h) (1), was dismissed at the request of the Commonwealth. The jury acquitted the defendant of carrying a loaded firearm without a license, G. L. c. 269, § 10 (n); possession of a large capacity firearm, G. L. c. 269, § 10 (m); and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). After trial, by agreement of the parties, the Commonwealth dismissed the subsequent offense portion of the indictment on which the defendant was convicted. saw him running near the scene of a recent shooting. He further
argues that the evidence at trial was insufficient to prove that
he possessed a firearm found under a bush along his route. We
affirm.
Background. Based on the evidence presented at trial, the
jury could have found as follows. At about 5:30 P.M. on
November 26, 2019, multiple gunshots rang out on Annunciation
Road in the Roxbury section of Boston. A woman sitting in a
parked car at a community center was shot. About a block away
from the shooting scene, a bystander saw a man who was jogging
throw something into a bush along Parker Street.
Nearby, Boston police Officers Sean Murphy and Martin
Dunlap were on patrol in a marked cruiser. They drove on Parker
Street toward the sound of the gunshots and saw people walking
away from the area who appeared to be in shock. The defendant
drew the officers' attention because he was running and was
barefoot. At first he ran straight toward the cruiser, but then
he veered across Parker Street. The officers got out of the
cruiser and chased him. While running, the defendant took off
his jacket and discarded it in the middle of the street. The
officers caught up to him and placed him in handcuffs.
The police canvassed the route from where the defendant was
apprehended on Parker Street to the shooting scene. Alerted by
the bystander, an officer looked in the bush and found a nine-
2 millimeter Ruger semiautomatic firearm. Approximately one block
from where the firearm was found, on the corner of Parker Street
and Annunciation Road, was the defendant's right sneaker. On
Annunciation Road, about halfway between the right sneaker and
the shooting scene, was his left sneaker. In the area of the
shooting were thirty-three spent shell casings. Based on
comparison testing, a ballistician opined that twenty-two of
them had been ejected from the Ruger. From the shooting
victim's car, the police recovered ballistics evidence including
a projectile in the trunk. The ballistician opined that it had
been fired from the Ruger. 2
The defendant was transported to a police station, where
both of his hands tested positive for gunshot residue, showing
that he had either fired a gun, been in the vicinity of a gun
being fired, or touched something with gunshot residue on it.
The defendant did not have a license to carry a firearm.
Interviewed by detectives, the defendant was evasive about
whether he had been on Annunciation Road, but admitted that he
"made a left" onto Parker Street. He stated that he ran because
he heard gunshots; asked how far away from him the gunshots
2 On the roof of the community center, the police found a second nine-millimeter firearm. The ballistician opined that four cartridge casings found at the shooting scene were ejected from that firearm, but that a bullet fragment in the victim's car was not shot from it.
3 were, he said, "I don't know, I'm not a scientist," and they
could have been ten feet or one hundred feet away.
In closing, defense counsel argued that the defendant was
an innocent bystander who heard gunshots and ran, and the
gunshot residue could have gotten on his hands when he fell and
touched the ground.
Discussion. 1. Motion to suppress. We summarize the
facts as found by the motion judge, which we accept absent clear
error, and supplement them with uncontested facts in the record
that are consistent with her findings. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 430 (2015). We "review
independently the application of constitutional principles to
the facts found." Commonwealth v. Warren, 475 Mass. 530, 534
(2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393
(2004).
When Officers Murphy and Dunlap heard the gunshots, they
were two or three blocks away from Annunciation Road. In their
marked cruiser, the officers drove toward the sound of the
gunshots and saw people walking away from the area, some of whom
appeared to be in fear. The only person running was the
defendant. He was running away from Annunciation Road before he
saw the police officers, and not in reaction to seeing them. At
first the defendant ran straight toward the cruiser, but then he
changed direction. At some point, the officers noticed that he
4 had no shoes on. The officers got out of the cruiser and ran
after him. One or both officers ordered the defendant to stop.
While running, the defendant took off his jacket and discarded
it in the middle of the street. The officers stopped the
defendant and handcuffed him. The defendant was taken into
custody at 5:31 P.M., which was about one minute after the
report of shots fired had been broadcast on the police radio.
In analyzing the legality of the stop, we first consider at
what point the stop occurred, that is, when "in the
circumstances, a reasonable person would believe that an officer
would compel him or her to stay." Commonwealth v. Matta, 483
Mass. 357, 363 (2019). We conclude that the stop occurred when
the officers chased the defendant and ordered him to stop. See
Warren, 475 Mass. at 534 (seizure occurred when officer ordered
defendant to stop running and pursued him).
Next, we consider whether the stop was justified. "To
justify a police investigatory stop under the Fourth Amendment
or art. 14, the police must have 'reasonable suspicion' that the
person has committed, is committing, or is about to commit a
crime." Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 8
(2023), quoting Commonwealth v. Costa, 448 Mass. 510, 514
(2007). In considering whether police had reasonable suspicion
to stop a defendant, courts have placed considerable weight on
how close to a crime scene and how soon after the crime a
5 defendant is apprehended. "Proximity is accorded greater
probative value in the reasonable suspicion calculus when the
distance is short and the timing is close." Warren, 475 Mass.
at 536.
The motion judge ruled that the police had reasonable
suspicion to stop the defendant based on his "suspicious
demeanor": he was running just after the shooting and in close
proximity to it; he was running before he saw the police, not in
reaction to seeing them; and no one else was running. We agree.
See Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 819 (2019)
(reasonable suspicion to stop defendant "within seconds" of
gunshots, where he and codefendant were "the only people
fleeing"). See also Commonwealth v. Henley, 488 Mass. 95, 103
(2021) (reasonable suspicion to stop defendant two blocks away
from and five minutes after shooting). Contrast Warren, 475
Mass. at 536 (no reasonable suspicion to stop defendant one mile
away and twenty-five minutes after crime; flight could be
attributed to fear of police).
The defendant argues that the police did not have
reasonable suspicion to stop him because "others were also
fleeing." We defer to the credibility determinations of the
motion judge, who saw and credited the testimony of Officers
Murphy and Dunlap that the defendant was the only person running
from the area of the shooting. Beyond that, the motion judge
6 also had the opportunity to view video recordings from
surveillance and police body cameras, which have not been
provided to us. Without the opportunity to view those video
recordings, we cannot second-guess the motion judge's finding
that the defendant was the only person running.
The defendant also contends, for the first time on appeal,
that the officers' decision to stop him was impermissibly based
on his race. To make such a claim, the defendant was required
to "first . . . raise a reasonable inference of racial profiling
through a motion to suppress." Commonwealth v. Long, 485 Mass.
711, 724 (2020). Had he done so, the motion judge could have
held an evidentiary hearing on that issue. See, e.g.,
Commonwealth v. Stroman, 103 Mass. App. Ct. 122, 127-131 (2023)
(describing evidence adduced at Long hearing). In these
circumstances, "resolution of the defendant's claim depends on
the development of facts not in the record." Commonwealth v.
Piard, 105 Mass. App. Ct. 428, 439 (2025). Accordingly, we do
not consider it.
2. Sufficiency of evidence. The defendant also contends
that the trial judge should have allowed his motion for a
required finding of not guilty because the evidence was
insufficient to permit the jury to find that he possessed the
Ruger firearm found in the bush.
7 We conclude that the evidence before the jury was
sufficient to prove that the defendant possessed the Ruger.
Both it and the defendant's sneakers were found along his flight
path from the shooting scene on Annunciation Road to where he
was apprehended on Parker Street. See Commonwealth v. Ralph R.,
100 Mass. App. Ct. 150, 163 (2021) (jury could infer that
defendant possessed gun recovered from area within flight path).
The defendant had gunshot residue on both hands. Cf.
Commonwealth v. Pytou Heang, 458 Mass. 827, 834-836 & n.14
(2011) (possession of firearm proven with evidence defendant's
right sleeve tested positive for gunshot residue). The jury
could infer that the defendant was the person who the bystander
saw toss an item into the bush, and that the item was the
firearm. That the defendant threw the firearm added to the
quantum of evidence that he possessed it. See Commonwealth v.
Steadman, 489 Mass. 372, 386 (2022) (defendant's tossing knife
used in murder showed consciousness of guilt).
Judgment affirmed.
By the Court (Ditkoff, Hand & Grant, JJ. 3),
Clerk
Entered: August 13, 2025.
3 The panelists are listed in order of seniority.