Commonwealth v. David Roman.

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

24-P-440

COMMONWEALTH

vs.

DAVID ROMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

convicted of possession of a firearm without a license, see

G. L. c. 269, § 10 (a), possession of a loaded firearm without a

license, see G. L. c. 269, § 10 (n), and possession of

ammunition without a firearms identification card, see G. L.

c. 269, § 10 (h) (1). After the jury rendered its verdict, the

Commonwealth moved to dismiss the ammunition count as

duplicative, and the judge allowed its motion. The defendant

was acquitted of possession of a class D substance with intent

to distribute, G. L. c. 94C, § 32C (a), and the judge found him

not responsible for failing to stop for the police as required
by G. L. c. 90, § 25. In this direct appeal, the defendant

raises two arguments.

The DCJIS employee's testimony. The defendant argues first

that the judge should not have allowed a witness, Kevin Scaplen,

to testify that he did a records check as to whether the

defendant had a license to carry a firearm and no record of any

such license was found. The witness testified that he works for

the Department of Criminal Justice Information Systems and was

familiar with the Criminal Justice Information System (CJIS), a

system that allows law enforcement agencies to access multiple

databases, such as those of the Registry of Motor Vehicles, the

Firearms Records Bureau, and the sex offender registry, through

one system. Scaplen testified that he had years of experience

using each of these databases from working in the State police.

He explained that when a person searches CJIS for information

related to firearms licensing, the system's only search

parameters are first and last name and date of birth. If the

person whose information has been entered in this search query

has a license or firearms identification card, the system will

return the history of that license or firearms identification

card. If the person does not have a license or firearms

identification card, the result of the search will be "no

records found." Scaplen testified that he ran a search using

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the name "David Roman" and the defendant's date of birth and the

result of that search was "no records found."

The defendant argues that the testimony violated the rule

against hearsay, that it was inadmissible because Scaplen was

not the "keeper of the records," and that it violated the

confrontation clause of the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights.

In its recent decision in Commonwealth vs. Smith, 496 Mass.

304 (2025), the Supreme Judicial Court addressed similar issues

related to the Commonwealth's use of a DCJIS employee's

testimony to prove lack of licensure. Smith recognized that,

despite the rule against hearsay, "[u]nder our common law,

testimony that a search of public records did not turn up a

record is admissible to prove the nonexistence of such a

record." Id. at 308. See Mass. G. Evid. § 803(10) (2024).1

1 "This rule is founded upon two different justifications.
See 4 J.H. Wigmore, Evidence § 1244, at 579-580 (Chadbourn
rev. ed. 1972). First, such testimony does not seek to
establish the contents of an out-of-court document but
instead to establish the absence of any document. See 5
C.S. Fishman & A. Toomey McKenna, Jones on Evidence § 34:54
(7th ed. 2023) ('As a general rule, silence is not
classified as hearsay'). Second, as a practical matter,
such testimony obviates 'the inconvenience of producing
voluminous documents' from which the fact finder could
perform its own such assessment, J.H. Wigmore, supra, and
solves the problem when '[t]he court and jury cannot look

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Further, it explained that "[o]ur application of this

common-law rule has not been limited to testimony by custodians

of public records." Smith, 496 Mass. at 309. In order to

testify about the absence of a public record, a witness need

only be "familiar with both the process of searching the records

and the government's recordkeeping practices with regard to the

database." Id. at 311, quoting United States v. Parker, 761

F.3d 986, 992 (9th Cir. 2014). Here, Scaplen's testimony that

he had roughly twenty-nine years of experience using the

firearms records database, his description of how both firearms

licensing authorities and the Firearms Records Bureau use the

database as their case management system, and how the database

may be searched established his familiarity with the process of

searching the database and of the relevant recordkeeping

practices. Cf. id. at 312-313. Therefore, neither the rule

against hearsay nor the fact that Scaplen was not the custodian

of the firearms licensing records at issue barred his testimony.

Finally, as to the confrontation clause and art. 12 issue,

Smith held that "the contents of the firearm license database

[are] not testimonial" because these records are "created for

the administration of [the Commonwealth's] affairs and not for

through the records for themselves,' [Commonwealth v.
Meserve, 154 Mass. 64, 71 (1891)]."

Smith, 496 Mass. at 308.

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the purpose of establishing or proving some fact at trial." Id.

at 314-315, quoting Commonwealth v. Zeininger, 459 Mass. 775,

786, cert. denied, 565 U.S. 967 (2011). Given that the contents

of the database are not testimonial, neither the confrontation

clause nor art. 12 prevented them from being introduced through

Scaplen's testimony. See Zeininger, supra at 785 (noting that

confrontation clause guarantees defendant opportunity to

confront "any person . . . whose testimonial statements are

introduced against him" [quotation and citation omitted]).

The prosecutor's opening. The defendant's second argument

has to do with the prosecutor's opening statement. As is

relevant here, it is uncontested that on the day in question,

the police were surveilling the defendant's home. Officer

Bissonnette of the Worcester police department saw the defendant

leave his house, carrying a camouflage backpack which he placed

on the top of the trunk of his car. The defendant then walked

around the car, looking around, then placed the camouflage

backpack in the trunk. Officer Bissonnette approached the

defendant and asked him to stop. The defendant then got into

his car and drove away. Officer Bissonnette and another officer

stopped the defendant, had him step out of his car and arrested

him. The police had the defendant's car towed, then performed

an inventory search of it. During this inventory search,

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Officer Bissonnette found a black backpack in the passenger

compartment, which contained multiple jars of a green leafy

substance he believed to be marijuana. He also found the

camouflage bag in the trunk and a firearm inside that bag.

With respect to these facts, in an order allowing a motion

in limine, the motion judge ruled that the "Commonwealth will be

limited to testimony that the police were conducting an

'unrelated investigation' when the observations of the defendant

were made by the police officer(s)."

Despite this order, in opening, the prosecutor stated that

the police were surveilling the defendant's residence, looking

for the defendant, and that they arrested him on a warrant. The

prosecutor said that the police were at the defendant's house

for "unnamed reasons," not on an unrelated matter.

These references to additional suspicion of criminality by

the defendant and to the existence of a warrant for his arrest

on a different matter were obviously improper. No evidence

about any of these matters was anticipated, and the references

served therefore only to indicate to the jury that the defendant

was a person of criminal character.2 See Commonwealth v.

2 In his brief, the defendant argues that he was prejudiced
by the prosecutor holding up the firearm that was found inside
the defendant's backpack without seeking permission of the
court. The gun was admitted into evidence, and, while we need
not rule definitively on the issue, the defendant has put

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Crayton, 470 Mass. 228, 249 (2014) ("Evidence of a defendant's

prior or subsequent bad acts is inadmissible for the purpose of

demonstrating the defendant's bad character or propensity to

commit the crimes charged").

The trial judge denied a motion for a mistrial after these

comments. The next day, she attempted curative action.

Although the defendant preserved his claim of error by noting he

wanted a mistrial, the trial judge, having denied that, had the

parties agree to a stipulation that "the police were outside the

defendant's home on an unrelated investigation" and crafted a

curative instruction, which said "[the jurors] should not draw

any negative inferences against the defendant based on that

fact." The stipulation was read to the jury, and the

stipulation and accompanying instruction were also repeated at

the end of trial. The trial judge instructed the jury that

forward no legal basis that this was improper, except the
possibility, which seems serious to us, that it might have
presented a safety issue. In any event, the defendant did not
press this claim at argument.

Without objection, in his opening, the prosecutor also said
that the officers "saw [the defendant] leave that house carrying
this firearm that was inside a camouflage bag." Although we can
see how this might have been read incorrectly to suggest that
the officers knew the gun was in the backpack as the defendant
left his residence, even assuming there is error, we do not
think that it created a substantial risk of a miscarriage of
justice. See Commonwealth v. Azar, 435 Mass. 675, 685, 687
(2002), S.C. 444 Mass. 72 (2005).

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"opening and closing arguments of the lawyers are not a

substitute for the evidence."

The defendant argues that denial of a mistrial was error

and that the stipulation did not cure any prejudice from the

statements in the prosecutor's opening. We review a judge's

decision to deny a motion for a mistrial for abuse of discretion

and review the challenged statements in the prosecutor's opening

for prejudicial error. See Commonwealth v. Robinson, 493 Mass.

303, 317 (2024); Commonwealth v. Martinez, 476 Mass. 186, 197

(2017). In the context of a motion for a mistrial based on

misstatements in the prosecutor's opening, "[a] mistrial may be

appropriate 'where the force of the prosecutor's opening remarks

was overwhelmingly prejudicial and likely to leave an indelible

imprint on the jurors' minds.'" Commonwealth v. Hoilett, 430

Mass. 369, 372 (1999), quoting Commonwealth v. Fazio, 375 Mass.

451, 455 (1978).

The opening may have created an impression of the

defendant's criminality. And it is true that the jury heard all

the first day's evidence without those assertions in the opening

being corrected. Likewise, it is true that although the

stipulation addressed many of the statements, it did nothing to

address the statement that the defendant had been arrested on a

warrant.

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Without implying that a late-given curative instruction, or

one that addresses most, but not all, of the errors in an

opening will always suffice to render such errors

nonprejudicial, we conclude on all the facts and circumstances

of this case, that, in the end, in light of the stipulation and

instruction, the errors here were not prejudicial and did not

require a mistrial.

Most of the erroneous statements in the opening were

forcefully addressed, and the jury were given the standard

instruction that opening and closing arguments of counsel are

not evidence. The defendant was convicted of the firearms

offenses, but was acquitted of the possession of a class D

substance with intent to distribute count, based upon the

discovery of roughly two ounces of marijuana in a different

backpack in the car. We conclude that, rather than being

overwhelmed by any sense of the defendant's criminality, as the

split verdict shows, the jury paid attention to the evidence

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and considered the differences in the Commonwealth's cases with

respect to each count.

Judgments affirmed.

By the Court (Rubin, Neyman &
Tan, JJ.3),

Clerk

Entered: August 20, 2025.

3 The panelists are listed in order of seniority.

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