Opinion
21-P-841
08-11-2022
COMMONWEALTH v. LORENZO MYERS.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a judge of the Superior Court, allowing the defendant's motion to dismiss indictments for various charges of firearm possession offenses under G. L. c 269, § 10. In his motion to dismiss, the defendant claimed that the Commonwealth failed to disclose certain exculpatory evidence to the grand jury. We conclude that the Commonwealth's failure to present such evidence to the grand jury did not warrant dismissal of the indictments, and reverse.
Appellate review of indictments is "limited to determining whether the grand jury received sufficient evidence to find probable cause for arrest, and whether the integrity of the grand jury proceedings was impaired" (citation omitted). Commonwealth v. McGahee, 393 Mass. 743, 747 (1985). We review the indictments de novo to determine whether the "evidence was withheld in a manner that distorts the meaning of the evidence admitted, or if the exculpatory evidence was so powerful it would have severely undermined the credibility of an important witness or likely have led the grand jury not to indict." Commonwealth v. Rakes, 478 Mass. 22, 30 (2017).
Here, the Commonwealth withheld information from the grand jury that raised the possibility that another individual, Jaiir Coleman, possessed and used the firearm at issue nine months prior to the defendant's alleged possession of the weapon on August 25, 2020. The firearm was found to be a ballistic match to shell casings recovered from shootings committed by Coleman in Chelsea and Somerville on November 11, 2019, and Coleman was seen holding a firearm that looked like the same one involved in the indictments against the defendant in a music video uploaded to YouTube in December 2019. The defendant also contends that the history of the firearm was exculpatory because the firearm was discharged on August 25, 2020, in a similar manner to that employed by Coleman in the Chelsea and Somerville shootings, establishing a modus operandi.
The withheld evidence, while lending potential support to a theory that the defendant was fleeing from shots fired by another person (Coleman) rather than from law enforcement after firing shots himself, "was [not] of sufficient significance to require that it be introduced." Rakes, 478 Mass. at 30. As an initial matter, even if the grand jury heard the withheld evidence and concluded that Coleman was involved in the August 25, 2020 shooting, it would not have foreclosed the possibility that the defendant also had possession of the firearm. See Commonwealth v. Dinnall, 366 Mass. 165, 168 (1974) ("Possession need not be exclusive but may be joint"). More importantly, however, the withheld evidence would not have greatly undermined or contradicted the remaining evidence before the grand jury, which was sufficient to indict the defendant. The defendant's immediate flight from the shooting scene, the prompt discovery of the firearm used in the shooting along his very short flight path, and the gunshot residue on his hands, collectively established probable cause that he knowingly possessed the firearm. See Commonwealth v. Martins Maintenance, Inc., 101 Mass.App.Ct. 186, 191 (2022) (probable cause "requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed, not proof beyond a reasonable doubt" [citation and quotation omitted]). Coleman's prior use and possession of the same firearm, nine months earlier, is appropriate fodder for consideration by a jury at trial, in weighing whether the Commonwealth has proved the defendant's guilt beyond a reasonable doubt, but it neither weakened the credibility of the other inculpatory evidence presented to the grand jury nor provided an alternate, innocuous explanation for it. As such, the withheld evidence would not have affected the grand jury's decision to indict, nor rendered the evidence insufficient to establish probable cause. We accordingly reverse the order allowing the motion to dismiss the indictments, and an order shall enter denying the motion.
We also are unpersuaded by the defendant's suggestion that the repetitive firing of the firearm was so distinctive as to constitute a modus operandi. The firearm was designed to facilitate repeat firing, and a rational jury could readily conclude that its use in that manner was a feature of the firearm itself, rather than an identifying attribute of the person firing it.
So ordered.
Green, C.J., Walsh & D'Angelo, JJ.
The panelists are listed in order of seniority.