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-1296
COMMONWEALTH
vs.
WILLIAM WRIGHT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
We need not repeat the lengthy procedural history of this
case, most of which is set forth in Commonwealth v. Wright, 101
Mass. App. Ct. 1116 (2022). As relevant here, a panel of this
court vacated most of the defendant's convictions stemming from
an armed home invasion based on the Commonwealth's failure to
disclose certain evidence (Brady violation 1). See id. However,
the panel affirmed the defendant's convictions for unlawfully
carrying a firearm and resisting arrest, concluding that the
1 See Brady v. Maryland, 373 U.S. 83 (1963). defendant was not prejudiced by the Commonwealth's nondisclosure
of evidence with respect to these two charges. 2 See id.
Following remand, but prior to retrial, the Supreme
Judicial Court decided Commonwealth v. Guardado, 491 Mass. 666
(2023) (Guardado), prompting the defendant to file a motion for
new trial seeking to vacate his firearm conviction. He argued
that he was entitled to a new trial because the judge did not
instruct the jury that the lack of licensure is an essential
element of the offense. He also argued that the impact of the
Brady violation must be considered in assessing the prejudicial
impact of the Guardado error. In a thoughtful memorandum of
decision, the motion judge, who was also the trial judge, denied
the motion, and the subsequently filed motion for
reconsideration. The defendant timely appealed. We affirm.
Discussion. It is undisputed that the judge did not
instruct the jury that the Commonwealth must prove beyond a
reasonable doubt that the defendant did not have a license to
carry a firearm. See Guardado, 491 Mass. at 667. This was
error. Reviewing the entire trial record, we must then
determine whether the error was harmless beyond a reasonable
doubt. See Commonwealth v. Tavares, 482 Mass. 694, 709 (2019).
2 The defendant did not seek further appellate review. A single justice of this court denied the Commonwealth's motion to stay this appeal until the defendant's retrial occurred.
2 In Commonwealth v. Bookman, 492 Mass. 396, 401 (2023), the
Supreme Judicial Court held that where a police officer
testified that the defendant did not have a license to carry a
firearm, and where the officer's credibility was not in
question, the failure of the judge to instruct the jury on
licensure was harmless beyond a reasonable doubt.
This case is similar to Bookman, as the Commonwealth
presented evidence that the defendant did not have a license to
carry a firearm. The evidence on this point was brief, and
uncontested. Chicopee police Detective Michael Dion was asked
"[W]as there a records check of whether or not [the defendant]
had any sort of license to carry or a license for firearms?"
Dion answered that "[t]here was no license issued to [the
defendant] from the Commonwealth of Massachusetts for a license
to carry, LTC." There was no objection to this testimony, and
Dion was not cross-examined on this point.
The defendant claims that this case is distinguishable from
Bookman. First, he argues that Dion's testimony was hearsay and
therefore it was insufficient to render the error harmless.
Because the defendant did not object to this testimony, the jury
was permitted to consider it for its truth. See Commonwealth v.
Silva, 431 Mass. 401, 404 (2000), quoting Commonwealth v.
Keevan, 400 Mass. 557, 562 (1987) ("Hearsay which is not
objected to at trial may be 'weighed . . . with the other
3 evidence, and given any evidentiary value which it may
possess'"). See also Mass. G. Evid. § 802 (2024). Thus, there
was sufficient evidence of the defendant's lack of licensure.
Moreover, nothing in Bookman turned on whether the evidence of
licensure was hearsay. See Bookman, 492 Mass. at 400-401.
The defendant claims that we should not consider his
failure to dispute Dion's testimony, contending that it is not
relevant to the analysis because, at the time of trial, evidence
of a lack of licensure was "irrelevant." Again this reasoning
is contrary to Bookman where, in determining the instructional
error was harmless beyond a reasonable doubt, the court noted
that the evidence of nonlicensure was undisputed at trial. Id.
at 401. Finally, to the extent that the defendant argues that
Bookman was wrongly decided, we have "no power to alter,
overrule or decline to follow the holding of cases the Supreme
Judicial Court has decided." Commonwealth v. Vasquez, 456 Mass.
350, 357 (2010), citing Commonwealth v. Dube, 59 Mass. App. Ct.
476, 485-486 (2003).
Lastly the defendant contends that the "combined impact of
the Guardado error and the Brady violation was not harmless
beyond a reasonable doubt" and therefore he is entitled to a new
trial. 3 He argues that he could have used the undisclosed
3 The Commonwealth responds that the defendant is directly estopped from making this argument because this issue has
4 photographic evidence to impeach Dion's testimony, and therefore
the evidence of the defendant's lack of licensure would have
been put in doubt. He points to two possible modes of
impeachment. First, he now highlights inconsistencies between
Dion's testimony at a prior motion hearing concerning the
booking process and his testimony at trial, but these perceived
inconsistencies were not related to the photographs involved in
the Brady violation, and the defendant could have pointed out
the inconsistencies at trial. Second, as to the undisclosed
crime scene photos, the defendant points only to Dion's
testimony that he took boots off of the defendant and tagged
them during the booking process, whereas photos show the boots
were lying in the snow at the time of the arrest. Based on the
photographs, the defendant contends that he would have been able
to "raise a reasonable doubt about the accuracy" of Dion's
testimony. Put differently, he claims that if Dion was mistaken
in any way about the boots, then he could have also been
mistaken about the licensure. 4 We are not persuaded. Dion, who
already been decided in a final judgment between the same parties. We pass on the question of direct estoppel, concluding that the instructional error was harmless beyond a reasonable doubt.
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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-1296
COMMONWEALTH
vs.
WILLIAM WRIGHT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
We need not repeat the lengthy procedural history of this
case, most of which is set forth in Commonwealth v. Wright, 101
Mass. App. Ct. 1116 (2022). As relevant here, a panel of this
court vacated most of the defendant's convictions stemming from
an armed home invasion based on the Commonwealth's failure to
disclose certain evidence (Brady violation 1). See id. However,
the panel affirmed the defendant's convictions for unlawfully
carrying a firearm and resisting arrest, concluding that the
1 See Brady v. Maryland, 373 U.S. 83 (1963). defendant was not prejudiced by the Commonwealth's nondisclosure
of evidence with respect to these two charges. 2 See id.
Following remand, but prior to retrial, the Supreme
Judicial Court decided Commonwealth v. Guardado, 491 Mass. 666
(2023) (Guardado), prompting the defendant to file a motion for
new trial seeking to vacate his firearm conviction. He argued
that he was entitled to a new trial because the judge did not
instruct the jury that the lack of licensure is an essential
element of the offense. He also argued that the impact of the
Brady violation must be considered in assessing the prejudicial
impact of the Guardado error. In a thoughtful memorandum of
decision, the motion judge, who was also the trial judge, denied
the motion, and the subsequently filed motion for
reconsideration. The defendant timely appealed. We affirm.
Discussion. It is undisputed that the judge did not
instruct the jury that the Commonwealth must prove beyond a
reasonable doubt that the defendant did not have a license to
carry a firearm. See Guardado, 491 Mass. at 667. This was
error. Reviewing the entire trial record, we must then
determine whether the error was harmless beyond a reasonable
doubt. See Commonwealth v. Tavares, 482 Mass. 694, 709 (2019).
2 The defendant did not seek further appellate review. A single justice of this court denied the Commonwealth's motion to stay this appeal until the defendant's retrial occurred.
2 In Commonwealth v. Bookman, 492 Mass. 396, 401 (2023), the
Supreme Judicial Court held that where a police officer
testified that the defendant did not have a license to carry a
firearm, and where the officer's credibility was not in
question, the failure of the judge to instruct the jury on
licensure was harmless beyond a reasonable doubt.
This case is similar to Bookman, as the Commonwealth
presented evidence that the defendant did not have a license to
carry a firearm. The evidence on this point was brief, and
uncontested. Chicopee police Detective Michael Dion was asked
"[W]as there a records check of whether or not [the defendant]
had any sort of license to carry or a license for firearms?"
Dion answered that "[t]here was no license issued to [the
defendant] from the Commonwealth of Massachusetts for a license
to carry, LTC." There was no objection to this testimony, and
Dion was not cross-examined on this point.
The defendant claims that this case is distinguishable from
Bookman. First, he argues that Dion's testimony was hearsay and
therefore it was insufficient to render the error harmless.
Because the defendant did not object to this testimony, the jury
was permitted to consider it for its truth. See Commonwealth v.
Silva, 431 Mass. 401, 404 (2000), quoting Commonwealth v.
Keevan, 400 Mass. 557, 562 (1987) ("Hearsay which is not
objected to at trial may be 'weighed . . . with the other
3 evidence, and given any evidentiary value which it may
possess'"). See also Mass. G. Evid. § 802 (2024). Thus, there
was sufficient evidence of the defendant's lack of licensure.
Moreover, nothing in Bookman turned on whether the evidence of
licensure was hearsay. See Bookman, 492 Mass. at 400-401.
The defendant claims that we should not consider his
failure to dispute Dion's testimony, contending that it is not
relevant to the analysis because, at the time of trial, evidence
of a lack of licensure was "irrelevant." Again this reasoning
is contrary to Bookman where, in determining the instructional
error was harmless beyond a reasonable doubt, the court noted
that the evidence of nonlicensure was undisputed at trial. Id.
at 401. Finally, to the extent that the defendant argues that
Bookman was wrongly decided, we have "no power to alter,
overrule or decline to follow the holding of cases the Supreme
Judicial Court has decided." Commonwealth v. Vasquez, 456 Mass.
350, 357 (2010), citing Commonwealth v. Dube, 59 Mass. App. Ct.
476, 485-486 (2003).
Lastly the defendant contends that the "combined impact of
the Guardado error and the Brady violation was not harmless
beyond a reasonable doubt" and therefore he is entitled to a new
trial. 3 He argues that he could have used the undisclosed
3 The Commonwealth responds that the defendant is directly estopped from making this argument because this issue has
4 photographic evidence to impeach Dion's testimony, and therefore
the evidence of the defendant's lack of licensure would have
been put in doubt. He points to two possible modes of
impeachment. First, he now highlights inconsistencies between
Dion's testimony at a prior motion hearing concerning the
booking process and his testimony at trial, but these perceived
inconsistencies were not related to the photographs involved in
the Brady violation, and the defendant could have pointed out
the inconsistencies at trial. Second, as to the undisclosed
crime scene photos, the defendant points only to Dion's
testimony that he took boots off of the defendant and tagged
them during the booking process, whereas photos show the boots
were lying in the snow at the time of the arrest. Based on the
photographs, the defendant contends that he would have been able
to "raise a reasonable doubt about the accuracy" of Dion's
testimony. Put differently, he claims that if Dion was mistaken
in any way about the boots, then he could have also been
mistaken about the licensure. 4 We are not persuaded. Dion, who
already been decided in a final judgment between the same parties. We pass on the question of direct estoppel, concluding that the instructional error was harmless beyond a reasonable doubt.
4 We note that the defendant would be unable to dispute the lack of licensure at trial because he was a prohibited person who is not permitted a license to carry a firearm pursuant to G. L. c. 140, § 131 (d) (i).
5 was present at the arrest scene when the defendant was placed on
a stretcher, testified, "I think he had boots on, because there
was snow, yeah, boots." At most, the photographs show that at
some point at the arrest scene, the defendant did not have his
boots on -- a point not necessarily inconsistent with any of
Dion's testimony about seeing boots worn by the defendant or
tagging boots later at the station as evidence. To the extent
there may be an arguable inconsistency between Dion's testimony
and the photographs, such evidence tended generally to impeach
Dion's testimony, but it does not suggest that Dion's overall
testimony "was in question." Bookman, 492 Mass. at 401.
Although there may be some circumstances where a discovery
6 violation may have an impact on a trial error, that is not the
case here.
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Blake, Walsh & Hodgens, JJ. 5),
Clerk
Entered: October 16, 2024.
5 The panelists are listed in order of seniority.