Commonwealth v. Michael Depersis.

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

25-P-477

COMMONWEALTH

vs.

MICHAEL DEPERSIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant,

Michael Depersis, and his codefendant, Matthew MacDougall, were

both convicted of carrying a firearm without a license. On

appeal, the defendant argues that (1) the licensing statute

under which he was prosecuted was facially unconstitutional;

(2) the jury instructions erroneously permitted conviction on a

"possession through another" theory without requiring proof that

the defendant knew the codefendant lacked a license to carry;

(3) the trial judge erred by permitting the Commonwealth to

supply essential evidence on redirect examination of a witness;

and (4) a different judge (motion judge) erred in denying the
defendant's motion to sever his trial from that of his

codefendant.1 We affirm.

Discussion. 1. Facial challenge to firearm licensing

scheme. The defendant contends that the charges against him

should have been dismissed because the Massachusetts firearm

licensing statute in effect at the time of his arrest, G. L.

c. 140, § 131 (d), as amended through St. 2018, c. 123, §§ 11,

12, was facially unconstitutional under New York State Rifle &

Pistol Ass'n v. Bruen, 597 U.S. 1, 17 (2022). This claim is

unavailing for the reasons set forth in Commonwealth v.

Rodriguez, 496 Mass. 627, 639-642 (2025).

2. Jury instructions. The defendant argues that the

judge's instructions regarding possession of a firearm without a

license "through another person" were improper. He contends

that liability under such a theory required the jury to find

that the other person's possession was itself unlawful and that

the defendant knew it was unlawful. Because the defendant did

not object to the judge's instructions, "we review for any error

that could have created a substantial risk of a miscarriage of

justice." Commonwealth v. Sann Than, 442 Mass. 748, 752 (2004).

The Commonwealth proceeded on a theory of principal liability --

that the defendant himself possessed the firearm, either

1 The codefendant's appeal, if any, is not before us.

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actually or constructively -- rather than on a theory of joint

venture liability.

The judge instructed that possession requires "knowledge of

the object, the ability to exercise control over that object,

either directly or through another person," and the "intent" to

do so, and cautioned that mere presence is insufficient. These

instructions properly tracked the settled definition of

constructive possession. See Sann Than, 442 Mass. at 755;

Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004).

The defendant's argument conflates constructive possession

with joint venture liability. To prove a defendant guilty of

unlawfully possessing a firearm as a joint venturer, the

Commonwealth must show that the defendant knew that the

principal possessed the firearm unlawfully. See Commonwealth v.

Severino, 106 Mass. App. Ct. 170, 177 (2025) ("an essential

element of joint venture liability for [a firearms possession

offense] is that the coventurer lacked a firearms license").

Constructive possession, by contrast, focuses on the defendant's

own relationship to the firearm. See Commonwealth v. Francis,

104 Mass. App. Ct. 593, 601-602 (2024). Accordingly, the

Commonwealth needed to prove only that the defendant's

possession was unlawful.

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Because the Commonwealth did not proceed on a joint venture

theory and the instructions accurately stated the law of

constructive possession, no error occurred.

3. Redirect testimony. The defendant next argues that the

judge erred in permitting the Commonwealth, on redirect

examination, to ask the booking officer the defendant's date of

birth, a topic not addressed during cross-examination.

Trial judges have "considerable discretion over the scope

of redirect examination." Commonwealth v. Garcia, 470 Mass. 24,

36 (2014). See Commonwealth v. Smith, 329 Mass. 477, 479 (1952)

("[T]he extent to which redirect examination of a witness may be

directed as to matters not brought out in cross-examination is

within the discretion of the judge"). Reversal for abuse of

discretion is warranted only where the judge's ruling reflects

"a clear error of judgment . . . such that the decision falls

outside the range of reasonable alternatives" (citation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge's ruling here fell well within the range of

reasonableness.

In Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 245-

246 (2009), this court held that a trial judge did not abuse her

discretion in permitting the Commonwealth, on redirect

examination, to introduce testimony beyond the scope of cross-

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examination concerning the distance of the defendant's drug

offense from a nearby school, where the defendant did not

demonstrate unfair prejudice. Here, the defendant has no

plausible claim that the testimony about his date of birth

resulted in surprise or unfair prejudice. Moreover, even if the

officer's response was excluded, the Commonwealth could have

recalled him later or could have called another witness to

testify about the defendant's date of birth. See Commonwealth

v. Shine, 398 Mass. 641, 656 (1986) (prosecution permitted to

reopen case and recall witness to introduce material evidence).

The judge's "time-saving decision" to permit the testimony on

redirect was not an abuse of discretion. Rodriguez, supra at

246.

For the first time on appeal, the defendant argues that the

booking officer's recollection was improperly refreshed by his

booking report. We discern no error, let alone a substantial

risk of miscarriage of justice. "A witness may use a writing to

refresh a failing memory. However, the testimony which the

witness then gives must be the product of present recollection."

Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978). The officer

testified that reviewing the report refreshed his recollection

as to the defendant's date of birth, and he testified based on

his refreshed recollection. As the prosecutor followed the book

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in refreshing the officer's recollection, see Mass. G. Evid.

§ 612(a) (2025), and the defendant did not object, the judge did

not abuse her discretion by failing to exclude the testimony sua

sponte.

4. Joinder and motion to sever. Finally, the defendant

contends that the motion judge erred in denying his motion to

sever his trial from that of his codefendant. He argues that

the codefendants advanced mutually antagonistic defenses such

that acceptance of one defense necessarily undermined the other,

thereby creating a substantial risk of prejudice that could not

be cured by jury instructions.

"[T]he decision whether to join offenses for trial is a

matter left to the sound discretion of the judge, and will not

be reversed unless there has been a clear abuse of discretion"

(quotation and citations omitted). Commonwealth v. Pillai, 445

Mass. 175, 179-180 (2005). "Denial of a motion for severance is

an abuse of discretion when the prejudice resulting from a joint

trial is so compelling that it prevents a defendant from

obtaining a fair trial" (quotation and citation omitted).

Commonwealth v. Vasquez, 462 Mass. 827, 836 (2012).

"It is not enough for the defendant to show merely that his

chances for acquittal would have been better" if he had been

tried alone. Commonwealth v. Wilson, 427 Mass. 336, 346-347

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(1998). Rather, "severance is required only if the defenses are

both mutually antagonistic (or mutually exclusive) and

irreconcilable." Vasquez, 462 Mass. at 836. Defenses reach

that level where "[t]he sole defense of each [defendant] was the

guilt of the other." Commonwealth v. Moran, 387 Mass. 644, 656

(1982), quoting United States v. Crawford, 581 F.2d 489, 492

(5th Cir. 1978).

The record does not support the defendant's

characterization of the defenses as mutually antagonistic.

During opening statements, counsel for the defendant argued that

the Commonwealth would be unable to prove that the defendant

fired the weapon, possessed it, or "did anything wrong that

night," emphasizing that he was merely a passenger in the

vehicle and that the evidence would not identify him as the

person who possessed or discharged the firearm. Counsel for the

codefendant advanced a similar theory, arguing that the

Commonwealth would be unable to prove that MacDougall possessed

or controlled the firearm, and highlighting the absence of

fingerprint, DNA, or gunshot residue testing. Both defendants

thus sought to create reasonable doubt by challenging the

sufficiency and reliability of the Commonwealth's evidence

rather than by attributing culpability to the other. Thus, the

defendant has not demonstrated the type of compelling prejudice

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that warrants severance, and the motion judge did not abuse his

discretion in denying the motion.

Judgment affirmed.

By the Court (Massing,
Singh & Grant, JJ.2),

Clerk

Entered: April 15, 2026.

2 The panelists are listed in order of seniority.

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