Gun case reversed by Appeals Court

A 2006 gun case arising from a State Police traffic stop in Lowell has been reversed by the Appeals Court. The reversal is a direct result of the Melendez-Diaz Supreme Court ruling that said the prosecution must call a lab technician to the stand before introducing drug certificates.

The defendant, William Rivera who was driving a car with three passengers, was stopped by a State trooper for a traffic violation at approximately 10:00 P.M. on May 4, 2006. Following the stop of the car, a gun was discovered in the area under the driver’s seat, and the defendant was taken in custody. The trooper discovered three live bullets in the gun as he was clearing it.

At the time of this case, precedent for admission of ballistics certificates was Commonwealth v. Verde which states that a ballistics certificate is a “‘record of a primary fact made by a public officer in the performance of [an] official duty’ [and that admission without a technician’s testimony] did not violate the defendant’s rights under the confrontation clause of the Sixth Amendment.”  The Defense argued on appeal that “a ballistics certificate, just as a drug analysis certificate, violates a defendant’s right of confrontation if introduced without the testimony of the ballistics expert, or an opportunity to cross-examine the expert and urging that our review be conducted under the harmless beyond a reasonable doubt standard.”

The firearms crimes charged in this case required the Commonwealth to prove that the gun is a firearm, defined in G. L. c. 140, § 121, that it is “a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel . . . is less than 16 inches.” The Commonwealth is required to “present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire.” Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). General Laws c. 140, § 121A, as appearing in St. 1987, c. 300, provides that a “certificate by a ballistics expert . . . shall be prima facie evidence of his findings as to whether or not the item furnished is a firearm [emphasis added].”

While it is accepted that a jury can tell the length of a firearm by inspection, “the mechanisms of guns are not so universally familiar that jurors, simply by looking at one, can tell whether it works.” Commonwealth v. Nieves. In addition, The Commonwealth is required to “present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire.”

The evidence submitted by the Commonwealth consisted entirely of the testimony of the trooper who seized the gun and found that it was loaded. Relying on the ballistics certificate, he stated that the gun had been test fired and was functioning properly. The certificate described the gun as a “.22LR caliber Llama Spanish semi automatic pistol . . . [w]ith magazine and four (4) .22LR caliber live [cartridges].” The certificate stated the barrel length was 3 & 11/16 inches, had been test fired using two of the submitted cartridges, and that there were no malfunctions. Other than his observation that the gun was loaded when he seized it, the trooper offered no other observations or any opinions or evidence as to whether the gun was a working firearm. In addition, the prosecutor specifically relied on the certificate in closing argument and stated that “the certification says it does fire.”

In Melendez-Diaz v. Massachusetts, the Supreme Court determined that it is error for the “prosecution to prove its case via ex parte out-of-court affidavits.”  Stating that admission of the certificate without a technician constituted a substantial risk of a miscarriage of justice because it is “plausible . . . that the [jury’s] result might have been otherwise but for the error”, the Appeals Court overturned the conviction.

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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