Commonwealth v. Alfred B. Flores.

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-1032

COMMONWEALTH

vs.

ALFRED B. FLORES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Superior Court, the

defendant, Alfred B. Flores, was convicted of three counts of

carrying a firearm without a license and three counts of

possessing a large capacity feeding device.1 On appeal, he

claims that (1) the motion judge erred in denying his motion to

suppress, (2) the trial evidence was insufficient to prove the

offenses, and (3) the trial judge erroneously admitted a

stipulation to essential elements of the offenses in violation

of Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015). Although we

1The Commonwealth filed a nolle prosequi on the charges of
assault and battery by means of a dangerous weapon, assault and
battery on a family or household member, and witness
intimidation.
conclude that the evidence sufficed and that there was no error

in the admission of the stipulation, we agree that the motion

judge's findings of fact were insufficient to support his

rulings on the motion. We therefore remand the matter to the

Superior Court for further proceedings consistent with this

memorandum and order and retain jurisdiction to decide whether

there was error in the denial of the motion to suppress.

Background. 1. Motion to suppress. The motion judge

found the following facts. On July 2, 2017, at approximately

12:45 A.M.,2 Malden police officers responded to a domestic

disturbance. Upon arrival, they spoke with a woman who reported

that the defendant was around the corner of her home. The

police went around the corner and saw the defendant placing a

bag in a pickup truck. After speaking with the defendant, the

police learned that there were guns in the truck. The police

searched the truck, found a gun, and handcuffed the defendant.

The police picked up a bag with multiple compartments, showed it

to the defendant, and asked him where the guns were in the bag.

The defendant told them, and the police removed additional guns

from the bag. Sometime thereafter the police asked the

defendant if he had a firearm license; he answered no.

2 While the motion judge found that the officers arrived at
12:45 P.M., this appears to be a scrivener's error, as the
evidence was that the police responded during the midnight
shift.

2
The defendant filed a motion to suppress the firearms and

ammunition, as well as the statements that he had made to the

police. The motion judge initially allowed the motion in part,

concluding that "[f]rom the point of handcuffing the defendant

was in custody. Miranda was not given until arrival at the

station house." The motion judge ordered the suppression of the

defendant's statements made "[f]rom the point of handcuffing

forward," except for his answer to the question whether he had a

firearms license.3 The motion judge further concluded that the

police search "was a valid consent search even though there is

no signed consent form, a valid search incident to arrest, and

possibly the unusual case where the inevitable discovery

doctrine applies."

At the motion hearing, the defendant introduced in evidence

the transcript of a G. L. c. 276, § 58A hearing. After

reviewing the transcript, the motion judge amended his order and

denied the motion in its entirety. The motion judge further

found that the police recovered a pistol from the truck's glove

compartment and discovered ammunition on a seat, in plain view.

Once this happened, the motion judge found, "[p]olice then went

back to the defendant, not[ ]while holding the bag and, because

there were a lot of things in the truck, asked him where the

3 The order did not address whether the defendant's answers
to routine booking questions should be suppressed.

3
other guns were. He said wrapped up in the bag. Police

retrieved the bag and the gun." The motion judge concluded that

the police were "entitled" to search the truck for guns because

the defendant consented to the search and because the plain view

doctrine applied. The motion judge also concluded that "the

defendant was not in custody until the end of the incident,"

that "[t]here was no custodial interrogation within the meaning

of that term of art," and that "the statements were voluntary

beyond a reasonable doubt."

The Commonwealth then filed a motion for supplemental

findings of fact "[b]ecause the validity of the search is likely

to be challenged in an appeal." The Commonwealth requested

supplemental findings of fact with respect to (1) "the specific

fact on which the Court relied to conclude that the defendant

consented to the search," and (2) "[t]he point in time at which

police asked the defendant whether he had a firearm license."

The motion judge denied the motion in a margin endorsement

without explanation.

2. Jury-waived trial. The trial judge could have found

the following facts. On July 2, 2017, at approximately 12:30

A.M., Malden police officer Michael Polston responded to a call

for a domestic disturbance. Upon arriving at the home, Polston

spoke with the woman who lived there. She told the police that

the defendant could be in possession of firearms. Polston found

4
the defendant nearby on an adjacent street, putting something

into a black pickup truck. The defendant told Polston that he

had an argument with his girlfriend and that he was trying to

leave. The defendant produced a New Hampshire driver's license

and registration. He told Polston that he had three guns inside

the truck, one in the glove box and two in a bag. He also

stated, when asked, that he did not have a license to carry or a

firearm identification card.4 Polston searched the truck and

retrieved an unloaded Glock firearm from the glove box, as well

as three Glock magazines, each containing fifteen live rounds,

from the front passenger seat. He also recovered two handguns

from a bag in the back seat area of the truck: a Colt .38

caliber police special revolver and a Browning Arms .22 caliber

semiautomatic handgun. A firearm storage bag, holster, and .22

caliber magazine were recovered with the two handguns. Polston

placed the defendant under arrest.

The parties stipulated that the three guns each satisfied

the definition of a firearm under G. L. c. 140, § 121, and that

the three magazines each met the definition of a large capacity

feeding device. The trial judge accepted the stipulation before

4 Mario Monzon, a keeper of records for the Department of
Criminal Justice Information Services (DCJIS), testified that
there was no record of anyone with the defendant's name and date
of birth ever having a Massachusetts license to carry, firearm
identification card, or an application for the same that had
previously been denied.

5
the trial began, and it was entered into evidence without any

objection after the Commonwealth rested its case and the trial

judge denied the defendant's motion for a required finding of

not guilty.

Discussion. 1. Motion to suppress. The defendant argues

that the order denying the motion to suppress must be reversed

because the motion judge's factual findings were insufficient to

support his conclusion that the defendant was not subjected to

custodial interrogation.5 We agree that the findings were

insufficient. "In reviewing a decision on a motion to suppress,

we accept the judge's subsidiary findings absent clear error but

conduct an independent review of [the] ultimate findings and

conclusions of law" (quotations and citation omitted).

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

Although we "may supplement a motion judge's subsidiary findings

with evidence from the record that 'is uncontroverted and

undisputed and where the judge explicitly or implicitly credited

the witness's testimony,'" id., quoting Commonwealth v. Isaiah

I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), we

"may do so only so long as the supplemented facts 'do not

detract from the judge's ultimate findings.'" Jones-Pannell,

5 The defendant also argues that his statements and the
fruits thereof should have been suppressed because he was
subjected to custodial interrogation without Miranda warnings.
See Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).

6
supra, quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128

(2015). If we conclude "that the judge's factual findings are

inadequate and would require us to add facts in an attempt to

fill in gaps in the findings," then we will "remand the case to

the judge for further factual findings, reconsideration of legal

conclusions in light of the further findings, and other

proceedings consistent with [our conclusion]." Isaiah I., supra

at 335. We will not engage in independent fact finding. See

Jones-Pannell, supra at 432 n.4.

Here, the motion judge's factual findings are inadequate

for us to conduct an independent review of his conclusion that

the defendant was not subjected to custodial interrogation. In

determining whether a defendant was subjected to custodial

interrogation, we consider four factors:

"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview was terminated with an arrest."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). In this

case, the motion judge did not address or apply any of the

Groome factors, and few, if any, of the findings of fact bear on

them. In addition, because the motion judge did not implicitly

7
or explicitly credit Polston's testimony, we cannot supplement

his findings with uncontroverted and undisputed evidence from

the record. See Jones-Pannell, 472 Mass. at 431. Because "the

judge's factual findings are inadequate and would require us to

add facts in an attempt to fill in gaps in the findings," Isaiah

I., 448 Mass. at 335, we must remand this case to the Superior

Court for further proceedings.6

2. Sufficiency of evidence. The defendant next argues

that the evidence at trial was insufficient to prove that he

knowingly possessed the firearms and large capacity feeding

devices because (1) there was no evidence that he resided in

Massachusetts for more than sixty days7 and (2) there was no

evidence that he knew his possession of the firearms and large

capacity feeding devices was illegal. We are not persuaded.

6 We note that the motion judge has since retired and that
it will be necessary for another judge to hold a new evidentiary
hearing to make the required credibility determinations.

7 Under G. L. c. 140, § 129C, new residents of Massachusetts
are exempt from the firearm licensing requirement for sixty
days. At the time of the defendant's arrest in 2017, the
statute provided that "[n]o person, other than a licensed dealer
or one who has been issued a license to carry a pistol or
revolver or an exempt person . . . shall own or possess any
firearm, rifle, shotgun or ammunition unless he has been issued
a firearm identification card." G. L. c. 140, § 129C, first
par., as amended by St. 2010, c. 466, § 2. An exempt person
included "any new resident moving into the commonwealth, with
respect to any firearm, rifle or shotgun and any ammunition
therefor then in his possession, for 60 days after such . . .
entry into the commonwealth." G. L. c. 140, § 129C (j), as
amended by St. 2010, c. 466, § 2.

8
When reviewing a claim of insufficient evidence, we view the

evidence in the light most favorable to the Commonwealth and

determine whether it, together with any inferences permissibly

drawn therefrom, is sufficient to permit the judge to find each

essential element of the crime charged beyond a reasonable

doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979). "The evidence may be direct or circumstantial, and we

draw all reasonable inferences in favor of the Commonwealth."

Commonwealth v. Watson, 487 Mass. 156, 162 (2021), quoting

Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).

Here, in the light most favorable to the Commonwealth,

there was ample evidence that the defendant was a New Hampshire

resident who did not have a Massachusetts license to carry. The

defendant had a New Hampshire driver's license and his truck was

registered in New Hampshire. There was no evidence or

suggestion that the defendant lived in Massachusetts; when he

was first approached by police, the defendant told them that he

was trying to leave the home after having an argument with his

girlfriend, who lived there. In addition, the defendant told

Polston that he did not have a license to carry or a firearm

identification card, and the DCJIS keeper of records testified

that there was no record in Massachusetts of anyone with the

defendant's name and date of birth ever having a license to

9
carry, a firearm identification card, or an application for the

same that had previously been denied.

Furthermore, to convict the defendant of the charges, the

Commonwealth did not need to prove that the defendant knew his

possession of the firearms and high capacity feeding devices was

illegal. See Commonwealth v. Shaw, 105 Mass. App. Ct. 680, 685-

689 (2025) ("the Commonwealth is required to prove only that a

defendant possessed a firearm without a license; it is not

required to prove a defendant knows that the law requires him to

have a license to carry"), further appellate review granted on

other grounds, 496 Mass. 1111 (2025). Thus, we conclude that

the evidence was sufficient to support the convictions beyond a

reasonable doubt.

3. Stipulation. The defendant last argues that his

convictions must be reversed because the admission of the

parties' stipulation to essential elements of the charged

offenses violated Mass. R. Crim. P. 23 (a),8 for two reasons.

First, he claims that because the stipulation was not personally

signed by him, it was error to admit it, notwithstanding that it

8 Rule 23 (a) of the Massachusetts Rules of Criminal
Procedure provides that a "stipulation to an essential element
of a charged offense entered by the parties before . . . trial
shall be in writing and signed by the prosecutor, the defendant,
and defense counsel. [The] stipulation shall be read to the
jury before the close of the Commonwealth's case and may be
introduced into evidence."

10
was signed by the prosecutor and defense counsel. Second, he

argues error because the stipulation was not introduced as

evidence until after the Commonwealth rested its case and after

the defendant moved for a required finding of not guilty.

Because the defendant did not object to the admission of the

stipulation at trial,9 we review to determine whether, if error,

Prior to the start of the trial, the defendant and his
9

counsel engaged in the following discussion:

The Trial Judge: "Have we covered everything we need to
cover pretrial-wise?"

Defense Counsel: "Yes. Judge, I'd just point out that
with respect to the stipulation, I've gone over that with my
client. I've explained to him that that's one of the elements
that the Commonwealth has to prove, and I've explained the
implications of the stipulation as well to him and he
understands that."

The Trial Judge: "Yes. Good. I appreciate that."

Defense Counsel: "So the record's clear."

The Trial Judge: "[Mr. Flores], you understand all that?"

The Defendant: "Yes, sir."

After the Commonwealth rested its case, the stipulation was
admitted into evidence as follows:

The Clerk: "The stipulation, could we mark it [exhibit]
15?"

The Prosecutor: "Oh, yes, I would ask -- "

The Trial Judge: "Here's the stipulation right here."

The Prosecutor: "It was accepted by the court. I would
just ask that it be formally marked."

11
it created a substantial risk of a miscarriage of justice. See

Commonwealth v. McCoy, 456 Mass. 838, 850 (2010). The trial

judge's admission of the unsigned stipulation was not error, let

alone structural error requiring "automatic reversal" of the

conviction "without any inquiry into prejudice." Weaver v.

Massachusetts, 582 U.S. 286, 290 (2017). See id. at 295-296

(errors are structural where [1] "the right at issue is not

designed to protect the defendant from erroneous conviction but

instead protects some other interest," such as "the defendant's

right to conduct his . . . own defense"; [2] "the effects of the

error are simply too hard to measure," such as "when a defendant

is denied the right to select his . . . own attorney"; or [3]

"if the error always results in fundamental unfairness," such as

"if an indigent defendant is denied an attorney or if the judge

fails to give a reasonable-doubt instruction").

Here, "[a]s this was a bench trial, we presume that the

judge instructed himself correctly on the law." Commonwealth v.

Jackson, 80 Mass. App. Ct. 528, 530 (2011). The defendant was

not prejudiced by the admission of the stipulation because he

had full knowledge of both the stipulation's contents and the

The Trial Judge: "All right."

The stipulation was then marked and admitted into evidence
without objection.

12
implications of stipulating to the essential elements of the

charges. The defendant made those acknowledgements before trial

began, and so he was not prejudiced by the fact that the

stipulation was marked after the Commonwealth had rested its

case-in-chief.

Conclusion. The matter is remanded to the Superior Court

for further proceedings consistent with this memorandum and

order, and we retain jurisdiction to decide whether there was

error in the denial of the motion to suppress. Within four

months of entry of the rescript, the Superior Court shall

provide additional findings on the motion to suppress, and such

findings shall be filed by the parties with the Appeals Court.

There shall be no further appellate briefing pending further

order of this court. Appellate proceedings are stayed pending

further order of this court.

So ordered.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.10),

Clerk

Entered: February 4, 2026.

10 The panelists are listed in order of seniority.

13