Commonwealth v. Ferrer
Commonwealth v. Ferrer
Opinion of the Court
The defendant was convicted by a jury of unlicensed possession of a firearm in violation of G. L. c. 269, § 10(a); possession of ammunition without an identification card in violation of G. L. c. 269, § 10(h); and receiving a firearm with knowledge that the identification number had been defaced in violation of G. L. c. 269, § 11C.
Background. The jury could have found the following facts. At around 7:50 p.m. on February 21, 2002, Boston police officers, who were patrolling in an unmarked vehicle with a State trooper, noticed a group of five men underneath a “No Trespassing” sign in the parking lot of a closed gasoline station. The police officers drove over to the men, and Officer Thomas Pratt and State Trooper Derek Outerbridge got out of the vehicle. Either before or immediately after the officers left the vehicle and walked toward the men, the men ran off. Four men ran toward Washington Street, while the fifth, later identified as the defendant, fled toward Shawmut Avenue.
Officer Lawrence Celester, driving a Boston police department transport wagon, responded to the call regarding the foot chase. Exiting his vehicle, Officer Celester noticed the defendant running and told him, “Stop, police!” The defendant complied. The officer found no weapons on the defendant’s person, and the defendant was placed under arrest for trespassing. Because he was driving the transport wagon, Officer Celester took the defendant to the station to await booking on the trespassing charges.
While Officer Celester was waiting for the arresting officers to book the defendant, the defendant suddenly blurted out, “Your boys are dumb. They could have me for seven or eight years instead of this trespassing bullshit.” Officer Celester responded, “They are pretty smart and they are good at what they do.” The defendant then said, “They’ll never find it. You’re just wasting my time. I could be out doing sticks.” At this time, no firearm had been recovered, and the defendant had not yet been given Miranda warnings.
Discussion. 1. The admission in evidence of the defendant’s incriminating statements. “Miranda warnings are only necessary where one is the subject of ‘custody and official interrogation.’ ” Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), quoting
As an initial matter, we address the standard of review. “The denial of a motion to suppress evidence on constitutional grounds ... is reviewable without further objection at trial.” Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998).
The exchange of remarks between Officer Celester and the
2. The denial of the defendant’s motion for a required finding of not guilty of possession of a firearm with a defaced serial number. The defendant contests the sufficiency of the evidence that he knew about the gun and, in any event, that he knew the serial number had been defaced. We view the evidence in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The Commonwealth presented evidence that the gun was found in some old tires in a comer near the back area of the garage, an area into which the defendant had fled but his companions had not, and that the ground under the gun was wet from a recent rainfall while the gun itself was dry. As noted above, there was evidence (which we have deemed properly
Judgments affirmed.
Following his convictions the defendant pleaded guilty as an armed career criminal in violation of G. L. c. 269, § 10G.
He also moved orally during trial to exclude the statements as violating his Miranda rights.
Although the defendant captioned his motion as a motion in limine (suggesting an evidentiary objection which does not rise to a constitutional level and therefore would require further objection at trial to qualify as preserved error), we look to substance rather than nomenclature. See Commonwealth v. Martin, 447 Mass. 274, 278-279 (2006).
There is also no merit to the defendant’s argument that the judge nevertheless erred by admitting the statement that he “could be doing sticks,” because it was more prejudicial than probative. The judge was well within the exercise of her discretion in admitting a statement that was highly probative of the defendant’s intent and ability to exercise dominion over the gun, was not the subject of a properly preserved objection, and was admitted subject to the exclusion of any evidence explaining the colloquial use of “sticks” to mean armed robberies.
The defendant argues that G. L. c. 269, § 11C, is violative of his Fifth Amendment right not to incriminate himself by creating a rebuttable presumption that “possession or control of a firearm” with a defaced serial number “shall be prima facie evidence that the person having such possession or control is guilty.” However, the Supreme Judicial Court has concluded that this language creates a permissible inference rather than a mandatory finding and “does not involve lowering the Commonwealth’s substantive burden of proof . . . .” Commonwealth v. Maloney, 447 Mass. 577, 590 (2006). The judge properly instructed the jury that “the Commonwealth must prove that the defendant had knowledge, that he knew that the serial number or identification number was removed, defaced . . .,” and that “the Commonwealth must prove beyond a reasonable doubt. . . that the defendant knew that that serial number or identification number was removed, defaced . . . .”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.