Commonwealth v. Miguel Baptista.

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

23-P-1373

COMMONWEALTH

vs.

MIGUEL BAPTISTA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the defendant, Miguel

Baptista, appeals from his conviction for unlawful possession of

a firearm in violation of G. L. c. 269, § 10 (a). 1 He argues

that his pretrial motion to suppress evidence, including gunshot

residue found on his hands, should have been allowed because the

police did not have reasonable suspicion to stop him when they

1Before trial, an indictment for possession of ammunition
without a firearms identification card, G. L. c. 269,
§ 10 (h) (1), was dismissed at the request of the Commonwealth.
The jury acquitted the defendant of carrying a loaded firearm
without a license, G. L. c. 269, § 10 (n); possession of a large
capacity firearm, G. L. c. 269, § 10 (m); and assault and
battery by means of a dangerous weapon, G. L. c. 265, § 15A (b).
After trial, by agreement of the parties, the Commonwealth
dismissed the subsequent offense portion of the indictment on
which the defendant was convicted.
saw him running near the scene of a recent shooting. He further

argues that the evidence at trial was insufficient to prove that

he possessed a firearm found under a bush along his route. We

affirm.

Background. Based on the evidence presented at trial, the

jury could have found as follows. At about 5:30 P.M. on

November 26, 2019, multiple gunshots rang out on Annunciation

Road in the Roxbury section of Boston. A woman sitting in a

parked car at a community center was shot. About a block away

from the shooting scene, a bystander saw a man who was jogging

throw something into a bush along Parker Street.

Nearby, Boston police Officers Sean Murphy and Martin

Dunlap were on patrol in a marked cruiser. They drove on Parker

Street toward the sound of the gunshots and saw people walking

away from the area who appeared to be in shock. The defendant

drew the officers' attention because he was running and was

barefoot. At first he ran straight toward the cruiser, but then

he veered across Parker Street. The officers got out of the

cruiser and chased him. While running, the defendant took off

his jacket and discarded it in the middle of the street. The

officers caught up to him and placed him in handcuffs.

The police canvassed the route from where the defendant was

apprehended on Parker Street to the shooting scene. Alerted by

the bystander, an officer looked in the bush and found a nine-

2
millimeter Ruger semiautomatic firearm. Approximately one block

from where the firearm was found, on the corner of Parker Street

and Annunciation Road, was the defendant's right sneaker. On

Annunciation Road, about halfway between the right sneaker and

the shooting scene, was his left sneaker. In the area of the

shooting were thirty-three spent shell casings. Based on

comparison testing, a ballistician opined that twenty-two of

them had been ejected from the Ruger. From the shooting

victim's car, the police recovered ballistics evidence including

a projectile in the trunk. The ballistician opined that it had

been fired from the Ruger. 2

The defendant was transported to a police station, where

both of his hands tested positive for gunshot residue, showing

that he had either fired a gun, been in the vicinity of a gun

being fired, or touched something with gunshot residue on it.

The defendant did not have a license to carry a firearm.

Interviewed by detectives, the defendant was evasive about

whether he had been on Annunciation Road, but admitted that he

"made a left" onto Parker Street. He stated that he ran because

he heard gunshots; asked how far away from him the gunshots

2 On the roof of the community center, the police found a
second nine-millimeter firearm. The ballistician opined that
four cartridge casings found at the shooting scene were ejected
from that firearm, but that a bullet fragment in the victim's
car was not shot from it.

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were, he said, "I don't know, I'm not a scientist," and they

could have been ten feet or one hundred feet away.

In closing, defense counsel argued that the defendant was

an innocent bystander who heard gunshots and ran, and the

gunshot residue could have gotten on his hands when he fell and

touched the ground.

Discussion. 1. Motion to suppress. We summarize the

facts as found by the motion judge, which we accept absent clear

error, and supplement them with uncontested facts in the record

that are consistent with her findings. See Commonwealth v.

Jones-Pannell, 472 Mass. 429, 430 (2015). We "review

independently the application of constitutional principles to

the facts found." Commonwealth v. Warren, 475 Mass. 530, 534

(2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393

(2004).

When Officers Murphy and Dunlap heard the gunshots, they

were two or three blocks away from Annunciation Road. In their

marked cruiser, the officers drove toward the sound of the

gunshots and saw people walking away from the area, some of whom

appeared to be in fear. The only person running was the

defendant. He was running away from Annunciation Road before he

saw the police officers, and not in reaction to seeing them. At

first the defendant ran straight toward the cruiser, but then he

changed direction. At some point, the officers noticed that he

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had no shoes on. The officers got out of the cruiser and ran

after him. One or both officers ordered the defendant to stop.

While running, the defendant took off his jacket and discarded

it in the middle of the street. The officers stopped the

defendant and handcuffed him. The defendant was taken into

custody at 5:31 P.M., which was about one minute after the

report of shots fired had been broadcast on the police radio.

In analyzing the legality of the stop, we first consider at

what point the stop occurred, that is, when "in the

circumstances, a reasonable person would believe that an officer

would compel him or her to stay." Commonwealth v. Matta, 483

Mass. 357, 363 (2019). We conclude that the stop occurred when

the officers chased the defendant and ordered him to stop. See

Warren, 475 Mass. at 534 (seizure occurred when officer ordered

defendant to stop running and pursued him).

Next, we consider whether the stop was justified. "To

justify a police investigatory stop under the Fourth Amendment

or art. 14, the police must have 'reasonable suspicion' that the

person has committed, is committing, or is about to commit a

crime." Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 8

(2023), quoting Commonwealth v. Costa, 448 Mass. 510, 514

(2007). In considering whether police had reasonable suspicion

to stop a defendant, courts have placed considerable weight on

how close to a crime scene and how soon after the crime a

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defendant is apprehended. "Proximity is accorded greater

probative value in the reasonable suspicion calculus when the

distance is short and the timing is close." Warren, 475 Mass.

at 536.

The motion judge ruled that the police had reasonable

suspicion to stop the defendant based on his "suspicious

demeanor": he was running just after the shooting and in close

proximity to it; he was running before he saw the police, not in

reaction to seeing them; and no one else was running. We agree.

See Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 819 (2019)

(reasonable suspicion to stop defendant "within seconds" of

gunshots, where he and codefendant were "the only people

fleeing"). See also Commonwealth v. Henley, 488 Mass. 95, 103

(2021) (reasonable suspicion to stop defendant two blocks away

from and five minutes after shooting). Contrast Warren, 475

Mass. at 536 (no reasonable suspicion to stop defendant one mile

away and twenty-five minutes after crime; flight could be

attributed to fear of police).

The defendant argues that the police did not have

reasonable suspicion to stop him because "others were also

fleeing." We defer to the credibility determinations of the

motion judge, who saw and credited the testimony of Officers

Murphy and Dunlap that the defendant was the only person running

from the area of the shooting. Beyond that, the motion judge

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also had the opportunity to view video recordings from

surveillance and police body cameras, which have not been

provided to us. Without the opportunity to view those video

recordings, we cannot second-guess the motion judge's finding

that the defendant was the only person running.

The defendant also contends, for the first time on appeal,

that the officers' decision to stop him was impermissibly based

on his race. To make such a claim, the defendant was required

to "first . . . raise a reasonable inference of racial profiling

through a motion to suppress." Commonwealth v. Long, 485 Mass.

711, 724 (2020). Had he done so, the motion judge could have

held an evidentiary hearing on that issue. See, e.g.,

Commonwealth v. Stroman, 103 Mass. App. Ct. 122, 127-131 (2023)

(describing evidence adduced at Long hearing). In these

circumstances, "resolution of the defendant's claim depends on

the development of facts not in the record." Commonwealth v.

Piard, 105 Mass. App. Ct. 428, 439 (2025). Accordingly, we do

not consider it.

2. Sufficiency of evidence. The defendant also contends

that the trial judge should have allowed his motion for a

required finding of not guilty because the evidence was

insufficient to permit the jury to find that he possessed the

Ruger firearm found in the bush.

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We conclude that the evidence before the jury was

sufficient to prove that the defendant possessed the Ruger.

Both it and the defendant's sneakers were found along his flight

path from the shooting scene on Annunciation Road to where he

was apprehended on Parker Street. See Commonwealth v. Ralph R.,

100 Mass. App. Ct. 150, 163 (2021) (jury could infer that

defendant possessed gun recovered from area within flight path).

The defendant had gunshot residue on both hands. Cf.

Commonwealth v. Pytou Heang, 458 Mass. 827, 834-836 & n.14

(2011) (possession of firearm proven with evidence defendant's

right sleeve tested positive for gunshot residue). The jury

could infer that the defendant was the person who the bystander

saw toss an item into the bush, and that the item was the

firearm. That the defendant threw the firearm added to the

quantum of evidence that he possessed it. See Commonwealth v.

Steadman, 489 Mass. 372, 386 (2022) (defendant's tossing knife

used in murder showed consciousness of guilt).

Judgment affirmed.

By the Court (Ditkoff, Hand &
Grant, JJ. 3),

Clerk

Entered: August 13, 2025.

3 The panelists are listed in order of seniority.

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