Commonwealth v. Edwin Novas.

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

22-P-1015

COMMONWEALTH

vs.

EDWIN NOVAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of the

second-degree murder of Danny Nicacio (victim), armed assault

with intent to murder Armando Maisonet, Jr., possession of a

firearm without a license, possession of ammunition without a

firearm identification (FID) card, and assault and battery of

Maisonet by means of a dangerous weapon. On appeal, he claims

that: there was insufficient evidence to support his murder

conviction; errors in his firearm and ammunition convictions

require them to be vacated; and the prosecutor's opening

statement and closing argument were improper. We affirm in part

and vacate in part.
1. Sufficiency of the evidence. The defendant claims that

there was insufficient evidence to support his murder

conviction. In particular, he maintains that the evidence was

insufficient to identify him as the person who shot the victim.

We disagree.

When analyzing whether the record evidence is sufficient to

support a conviction, an appellate court is not required to "ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt." Commonwealth v.

Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting

Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).

Nor are we obligated to "reread the record from a [defendant]'s

perspective." Palmariello v. Superintendent of M.C.I. Norfolk,

873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989).

See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008).

Rather, the relevant "question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).

In general, when evaluating sufficiency, the evidence must

be reviewed with specific reference to the substantive elements

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of the offense. See Jackson, 443 U.S. at 324 n.16; Latimore,

378 Mass. at 677-678. In the circumstances of this case, the

defendant does not take issue with specific elements of murder,

but rather he claims the evidence did not sufficiently identify

him as the perpetrator. As a starting point, we note that

direct evidence of a witness identifying the defendant as the

shooter was not required. Indeed, "[a] conviction may rest

exclusively on circumstantial evidence, and, in evaluating that

evidence, we draw all reasonable inferences in favor of the

Commonwealth." Commonwealth v. Javier, 481 Mass. 268, 279

(2019), quoting Commonwealth v. Jones, 477 Mass. 307, 316

(2017). That is what occurred here.

In summary and viewing the evidence in the light most

favorable to the Commonwealth, supported by reasonable

inferences that the jury were entitled to draw, the defendant

was at the Tropigala nightclub1 on December 23, 1999, into the

early morning hours of December 24, 1999. At approximately

closing time, the defendant was outside the nightclub where he

employed a handgun to shoot and kill the victim and to wound

Maisonet.

The defendant was accompanied to the club by Juan DeCastro,

who believed that Maisonet acted like he had a problem with the

1 The victim's uncle owned the club.

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defendant that night. This supposition was shared by Maisonet's

brother, Juan Lopez, who testified that the defendant, who Lopez

identified in a photographic lineup, had a hostile relationship

with Maisonet.

At the club's closing time that night, Worcester Police

Officer Joseph Tolson, Jr., was stationed outside the club

approximately twenty-five feet away. He saw a male get pushed

out of the club. Once outside, Tolson watched the male

immediately retrieve a handgun from his waistband and fire a

shot.2 When he heard a second shot, he called for backup. When

the shooter fled down Benefit Street, Tolson pursued him on

foot, but he was unable to catch him. A few days later, a

working firearm was found in an alley off Benefit Street; the

gun had the defendant's fingerprints on it. Ballistic tests

revealed that the bullet casings found at the scene of the

shooting matched those that were later test fired from the

recovered firearm.3

2 Another witness, Santa Vargas, who also knew the
defendant, the victim and Maisonet, saw the defendant across the
street approaching the club, and then she heard a shot followed
by chaos breaking out.

3 The projectile recovered from the victim had similar
markings to those fired from the recovered gun, but it could not
be identified as having been fired by the same gun because it
was too damaged.

4
Irma Gonzalez, who knew the defendant, the victim and

Maisonet, was at the club the night of the shooting. According

to Gonzalez, the defendant was having "problems" with Maisonet

and his friends, and the defendant had been recently "jumped" by

this group. After the shooting, Maisonet ran back into the

club, holding his shoulder, screaming, "The fucking Dominican

shot me."4 At that point, Gonzalez looked out the window and saw

the defendant running up Benefit Street.

In the early morning hours of December 24, 1999, the

defendant returned to his apartment where his neighbor, Barbara

Nieves, saw him; he looked like he had been in a fight. Nieves

saw the defendant go to his room, put items into a backpack, and

then leave the apartment. Nieves never saw the defendant again.

In 2018, the defendant was extradited from the Dominican

Republic back to Massachusetts to face his indictments.

From all this evidence, the jury were entitled to find that

the defendant intended to shoot Maisonet and killed the victim

in the process. The jury could rationally find that the

defendant was present at the scene of the murder. See

Commonwealth v. Bush, 427 Mass. 26, 30 (1998) (defendant at

scene of murder before shots fired). He had a hostile

relationship with the intended victim and had an altercation

4 The defendant is of Dominican heritage.

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with him that night. See Commonwealth v. Robertson, 408 Mass.

747, 751 (1990) (defendant hostile toward victim and fought

night of murder, helping establish defendant's identity as

shooter). He was seen approaching the club when the shots were

fired, and he was seen fleeing the scene of the murder on

Benefit Street where a firearm was later found with his

fingerprints on it. See Jones, 477 Mass. at 316-317 ("evidence

of the flight path of the single person seen at the scene of the

shooting" helped establish defendant's identity as shooter);

Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 360 (2018)

("fingerprint evidence coupled with all of the other evidence

rationally linked the defendant to the crimes charged"). Also,

the shell casings found at the scene of the shooting matched

those test fired from the gun bearing the defendant's

fingerprints.

Finally, the Commonwealth introduced evidence of the

defendant's consciousness of guilt. Such evidence is probative

and can, in conjunction with other evidence, support a verdict

of guilt. See Commonwealth v. Doucette, 408 Mass. 454, 461

(1990). The Commonwealth presented evidence that shortly after

the murder, the defendant packed some belongings, left his

apartment, and was never seen by his neighbor again. Two

decades later, he was found in a foreign country. See

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Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) ("Flight is

perhaps the classic evidence of consciousness of guilt");

Commonwealth v. Lugo, 104 Mass. App. Ct. 309, 319 (2024)

(defendant's out-of-state flight in immediate aftermath of

shooting provided "strong, if not compelling, evidence of his

consciousness of guilt").

Although none of the single pieces of evidence recited

above would alone "be enough to convict the defendant," when

they are combined, they "form a fabric of proof that was

sufficient to warrant the jury's finding beyond a reasonable

doubt that the defendant was the person who killed the

victim[]." Commonwealth v. Cordle, 404 Mass. 733, 741 (1989),

S.C., 412 Mass. 172 (1992), quoting Commonwealth v. Rojas, 388

Mass. 626, 630 (1983). That there were some contradictions

among the witnesses' accounts, and in particular between those

of Tolson and the civilian witnesses, does not render the

evidence insufficient. "[T]he jury may believe part of a

witness's testimony and reject part or believe all or reject

all." Commonwealth v. Perez, 390 Mass. 308, 314 (1983), S.C.,

442 Mass. 1019 (2004).

2. The prosecutor's opening statement and closing

argument. The defendant also claims that the prosecutors made

improper appeals to sympathy and emotion to the jury in their

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opening statement and closing argument that one month after the

murder, the defendant's sister-in-law left her infant child in

the care of a neighbor for five months. The defendant did not

object to these statements, so we review to determine if there

was error, and if so, whether it created a substantial risk of a

miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.

290, 297 (2002).

"The proper function of an opening is to outline in a

general way the nature of the case which the counsel expects to

be able to prove or support by evidence." Commonwealth v.

Chambers, 93 Mass. App. Ct. 806, 819 (2018), quoting

Commonwealth v. Staines, 441 Mass. 521, 535 (2004). In her

opening the prosecutor stated: "[The neighbor will] also tell

you that the minor child who lived in that apartment was dropped

off with her for five months until another person came to get

that child."

The neighbor testified, without objection from the

defendant, that about a month after the shooting, the

defendant's sister-in-law left her baby with the neighbor, who

cared for him for about five months. In this light, the

prosecutor's statement properly forecast this piece of evidence,

however it was not relevant to any issue in the case. To the

extent it was unclear who the child's father was, defense

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counsel clarified on cross-examination of the neighbor that the

defendant was not the child's father. This minimized any

prejudice to the defendant.

The defendant also contends that the prosecutor's closing

argument impermissibly appealed to the jury's sympathy, argued

evidence that was not relevant, and misled the jury that he was

the baby's father. "In determining whether an argument was

improper we examine the remarks in the context of the entire

argument, and in light of the judge's instructions to the jury

and the evidence at trial." Commonwealth v. Teixeira, 490 Mass.

733, 740 (2022), quoting Commonwealth v. Kolenovic, 478 Mass.

189, 199 (2017).

In his closing argument, the prosecutor recounted the

neighbor's testimony,

"And she told you that she was living at 6 Elizabeth Street
in the downstairs apartment. She knew [the defendant and
his sister-in-law]; that they lived upstairs. She said
they hung out almost every single night, whether it be on
the stairs on doing something else. She told [you] that
they had a minor child. I think [he] was three or four
month she testified to." (Emphasis added.)

The prosecutor later stated:

"When she came back in the defendant was gone. She has
never seen the defendant since the early morning hours of
December 24th, 1999. She talked further about the
situation. That [sister-in-law] stuck around for a little
while. And then she watched [sister-in-law's] child for
five months until someone came and got the child."

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As with the opening statement, we agree with the defendant

that the evidence of the sister-in-law's child being left with

the neighbor for five months after the murder was not relevant

to who shot the victim, and was perhaps an improper appeal to

sympathy. However, we disagree that the jury would have been

misled that the child was actually the defendant's. Although

the prosecutor's argument vaguely attributed to the neighbor

stating that "they had a minor child," after referring to the

defendant and his sister-in-law, the neighbor's testimony also

made clear the defendant's brother also resided in the same

apartment. Again, defense counsel clarified on cross-

examination of the neighbor that the defendant was not the

child's father.

Even if the argument was improper, it did not create a

substantial risk of a miscarriage of justice in light of several

factors. Contrary to the defendant's argument, the child being

left behind was entirely collateral to the central issue of

identification. The prosecutor's brief comments on the matter,

in a dozen lines of a twenty-four page closing argument, was not

the focal point of the argument to say the least. See

Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53 (2003). That

there was no objection to the statements lends credence to the

belief that they did not create an unfair or prejudicial impact.

10
See Commonwealth v. Johnston, 467 Mass. 674, 695 (2014)

(applying substantial "likelihood" test). Also, although the

Commonwealth's case was entirely circumstantial, it was

nonetheless very strong. See Commonwealth v. Saulnier, 84 Mass.

App. Ct. 603, 607 (2013). Finally, the judge instructed the

jury on the limited purpose of closing arguments and, more

importantly, to "determine the facts based solely on a fair

consideration of the evidence[,] . . . to be completely fair and

impartial[,] . . . [and] not to be swayed by prejudice, or by

sympathy." See Commonwealth v. Camacho, 472 Mass. 587, 609

(2015) (applying substantial "likelihood" test). We presume

that the jury understood and followed these instructions.

Commonwealth v. Hernandez, 473 Mass. 379, 392 (2015). These

factors eliminated any substantial risk that justice miscarried.

3. The firearm and ammunition convictions. Finally, the

defendant claims that there was insufficient evidence to support

his convictions of possession of a firearm without a license and

ammunition without an FID card. As this case was tried in 2021,

the United States Supreme Court had yet to decide New York State

Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). After

Bruen, the Commonwealth bears the burden of disproving that a

defendant had a license to possess a firearm when prosecuting a

defendant for unlawful possession of a firearm, and the jury

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instructions must relay this burden. See Commonwealth v.

Guardado, 491 Mass. 666, 668 (Guardado I), S.C., 493 Mass. 1

(2023) (Guardado II), cert. denied, 144 S. Ct. 2683 (2024).5

Here, as the Commonwealth properly concedes, the judge did

not instruct the jury that the Commonwealth must prove that the

defendant did not possess a license to carry or an FID card.

Nor did the Commonwealth present evidence that the defendant was

unlicensed to possess the firearm or that he did not possess an

FID card. Accordingly, and contrary to the defendant's double

jeopardy claim, the defendant is entitled to a new trial on the

charges of carrying a firearm without a license and possession

of ammunition without an FID card. See Guardado II, 493 Mass at

12.

4. Conclusion. The judgments of conviction of second-

degree murder, armed assault with intent to murder, and assault

and battery by means of a dangerous weapon, are affirmed. The

judgments of conviction of possession of a firearm without a

5Because the defendant's direct appeal was pending at the
time of the issuance of Bruen on June 23, 2022, he is entitled
to the application of Guardado I and Guardado II. Commonwealth
v. Gibson, 492 Mass. 559, 579 (2023); Lugo, 104 Mass. App. Ct.
at 321.

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license and possession of ammunition without an FID card are

vacated, and those verdicts are set aside.

So ordered.

By the Court (Meade, Sacks &
Hodgens, JJ.6),

Clerk

Entered: February 11, 2025.

6 The panelists are listed in order of seniority.

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