Massachusetts Criminal Offense Drug Ballistic Certificate Harmless Error Lawyers Attorneys

COMMONWEALTH vs

COMMONWEALTH vs. EXSEL MUNIZ.

SUPREME JUDICIAL COURT OF MASSACHUSETTS

December 8, 2009, Argued

March 2, 2010, Decided

During a search of defendant's apartment, the police found a loaded handgun, a magazine, 14 cartridges, and bags of cocaine and marijuana. Drug and ballistics certificates were admitted in evidence at trial over defendant's objection.

Defendant claimed that the drug and ballistics certificates, admitted in evidence over his objection, violated his right under U.S. Const. amend. VI to confront and cross-examine witnesses.

Issue:

Whether admission of ballistic certificates was harmless error?

Observation and Holding:

Admission of certificates without a showing that the analyst was unavailable and that the defendant had a prior opportunity to cross-examine him or her was error. When determining whether an error was harmless beyond a reasonable doubt, we consider "'whether the error had, or might have had, an effect on the jury and whether the error contributed to or might have contributed to the verdicts. At issue here is whether the Commonwealth met its burden to prove that the gun was capable of discharging a shot or bullet. Concerning the ammunition,the Commonwealth had to prove that the item in question was "designed for use in any firearm. The Commonwealth submitted a "certificate of examination and test firing" in this case. The certificate not only stated that a test firing of the gun included the use of one of the cartridges that was found and that there were no malfunctions, but also stated that the gun and ammunition were items "within the meaning of" G. L. c. 140, 121. The analyst who signed the certificate did "swear and affirm" that he was "qualified as a Ballistics Expert . . . in compliance with [G. L. c. 140, 121A,] for the issuance of this certificate. It is true that our cases have stated that expert testimony is not necessary to determine whether a revolver is a firearm within the meaning of the statute. Here, there was no evidence that the pistol's firing mechanism was operable other than the certificate that was admitted in evidence in violation of the defendant's constitutional rights. The jury were instructed, according to the law then in effect, that a statute permitted them to consider the certificate as prima facie evidence that the gun was a firearm within the meaning of the statute. The instruction did not state that the jury was required to consider the certificate. There also was testimony that the gun had ammunition in it, and the gun itself was an exhibit and could have been examined by the jury. However, these facts alone are not enough evidence to conclude that the jury did not rely on the certificate's compelling evidence of the gun's operability to determine whether the gun met the statutory definition of a firearm. The Commonwealth has not shown Here, we conclude that the ballistics certificate's admission concerning the ammunition was harmless beyond a reasonable doubt. The jury were properly instructed that they had to find that the ammunition was "designed for use in any firearm" (emphasis added). The cartridges themselves and the officer's testimony that they were found in the magazine, which was in the gun at the time it was seized, provide overwhelming evidence that the cartridges met the statutory definition of ammunition.that the admission of the certificate was harmless beyond a reasonable doubt.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Massachusetts Criminal Offense Drug Ballistic Certificate Harmless Error Lawyers Attorneys

By: Atchuthan Sriskandarajah

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