Commonwealth v. Lugo

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22-P-1011 Appeals Court

COMMONWEALTH vs. RICHARD LUGO.

No. 22-P-1011.

Suffolk. March 14, 2024. – June 20, 2024.

Present: Meade, Neyman, & Hand, JJ.

Indictments found and returned in the Superior Court
Department on December 4, 2019.

The cases were tried before Janet L. Sanders, J.

Homicide. Firearms. Jury and Jurors. Constitutional Law,
Jury, Right to bear arms, Harmless error. Due Process of
Law, Elements of criminal offense. Evidence, Admission by
silence, Consciousness of guilt, Firearm, Argument by
prosecutor. Error, Harmless. Practice, Criminal, Jury and
jurors, Argument by prosecutor, Instructions to jury,
Harmless error.

William M. Driscoll for the defendant.
Kyle E. Siconolfi, Assistant District Attorney, for the
Commonwealth.

MEADE, J. After a jury trial on an indictment that charged

first-degree murder, the defendant was convicted of the lesser

included offense of voluntary manslaughter. He was also found
2

guilty of unlawful possession of a firearm and unlawful

possession of a loaded firearm.1 On appeal, he claims the judge

abused her discretion by allowing the Commonwealth's peremptory

challenge to a venire member, the judge abused her discretion by

admitting evidence of the defendant's prearrest silence, and the

judge erred in her jury instructions on the firearm offenses.

We affirm the conviction for voluntary manslaughter, and we

vacate his convictions for the firearm offenses.

Background. In 2019, the defendant shot and killed the

victim, Pascual Casiano, at the car repair shop where the

defendant was employed as a mechanic. The victim operated the

car dealership adjacent to the repair shop and worked in sales

with his nephew, Javier Fonseca.

On the day of the shooting, the defendant and the victim

had an argument that escalated into a physical altercation and

culminated in the defendant using a handgun to shoot the victim

in his abdomen. The defendant also fired the weapon at Fonseca,

who suffered a gunshot wound to his hand. The bullet that

struck the victim ultimately caused his death.

After the shooting, the defendant fled the Commonwealth,

where he had lived since 1986. In the process, he abandoned his

1 The jury acquitted the defendant of armed assault with
intent to murder, assault and battery by means of a dangerous
weapon, and larceny of a motor vehicle.
3

cell phone, his job, and several family members, including five

of his six children. Arriving in New York, where a son lived,

the defendant altered his appearance by cutting off his lengthy

dreadlocks, a hair style he had maintained for fifteen years.

The Commonwealth and the defendant offered different

theories on who initiated the conflict, who first brandished the

gun, whether the defendant had acted in self-defense, and the

existence of other mitigating factors in the shooting. The

Commonwealth's witnesses portrayed a mutual fist fight between

the defendant and the victim that Fonseca attempted to break up,

with only the defendant ever being in possession of a gun. The

defendant pushed Fonseca and the victim away and then shot them

both. Fonseca attempted to retrieve his cell phone from the

victim's car to call for help, but the defendant threatened to

kill him if he did not get out of the car.

The defendant, on the other hand, testified that it was he

who was attacked by the victim and Fonseca. He claimed the duo

struck him in the head with a gun as well as a bat and kicked

and punched him repeatedly. As a result, the defendant was

bleeding, light-headed, dizzy, and he feared for his life.

According to the defendant, near the conclusion of the beating,

the victim dropped the gun, which the defendant retrieved and

fired more than once, striking both men. The defendant claimed

he acted in self-defense.
4

Discussion. 1. The peremptory challenge. The defendant

claims for the first time on appeal that the judge abused her

discretion by permitting the Commonwealth to exercise a

peremptory challenge to exclude an African-American venire

member (juror no. 31), who was being treated for a mental health

disorder, because the challenge violated the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. See G. L.

c. 234A, §§ 3, 4. The defendant also claims for the first time

on appeal that exclusion of juror no. 31 due to his brother

being incarcerated in Federal prison on a gun conviction was

"disability discrimination clothed as implicit bias." Both

assertions lack merit.

Article 12 of the Massachusetts Declaration of Rights, and

the Sixth and Fourteenth Amendments to the United States

Constitution, guarantee to criminal defendants the right to a

trial by an impartial jury. Commonwealth v. Susi, 394 Mass.

784, 786 (1985); Commonwealth v. Soares, 377 Mass. 461, 478-480,

cert. denied, 444 U.S. 881 (1979), overruled in part by

Commonwealth v. Sanchez, 485 Mass. 491, 511 (2020). Pursuant to

these same protections, a party is prohibited from exercising a

peremptory challenge on the basis of race or other protected

classes. Sanchez, supra at 493; Commonwealth v. Jones, 477

Mass. 307, 319 (2017). See Batson v. Kentucky, 476 U.S. 79, 95

(1986). With that said, the analysis of a peremptory challenge
5

begins with a presumption that the challenge is proper. See

Soares, supra at 489. To analyze an objected-to peremptory

challenge, the trial judge must follow a three-step, burden

shifting procedure. "[T]o rebut the presumption that the

peremptory challenge is proper, the challenging party '"must

make out a prima facie case" that it was impermissibly based on

race or other protected status "by showing that the totality of

the relevant facts gives rise to an inference of discriminatory

purpose."'" Commonwealth v. Kozubal, 488 Mass. 575, 580 (2021),

cert. denied, 142 S. Ct. 2723 (2022), quoting Commonwealth v.

Jackson, 486 Mass. 763, 768 (2021). "If a party makes such a

showing, the burden shifts to the party exercising the challenge

to provide a 'group-neutral' explanation for it" (quotation and

citation omitted). Sanchez, supra. "Finally, the judge must

then determine whether the explanation is both 'adequate' and

'genuine'" (quotation and citation omitted). Id. See

Commonwealth v. Kalila, 103 Mass. App. Ct. 582, 587-588 (2023).

We review a judge's decision relative to a peremptory challenge

for an abuse of discretion. Commonwealth v. Lopes, 478 Mass.

593, 599 (2018).

Here, during a voir dire on the second day of trial, juror

no. 31 disclosed both his personal and familial experiences with

being arrested and prosecuted, as well as his own history of

mental illness. Upon inquiry from the judge, juror no. 31
6

reported that both he and his brother had been arrested. Juror

no. 31's sole arrest from two years prior stemmed from a

breaking and entering in the nighttime when he was not taking

his medication for his schizoaffective disorder. He reported

that he was now stable and had been for the past year, his

medication was under control,2 he had completed "mental health

court," and he would be able to hear the evidence and to

participate in deliberations. Juror no. 31's brother, with whom

he was not close, had been arrested for "drugs and [a] gun," and

he was currently in Federal prison. Juror no. 31 did not

participate in his brother's trial, and nothing in that case led

him to believe that his brother had been treated unfairly or

that he would harbor any bias against the police, the

prosecutor, or other witnesses in this case.

After defense counsel made a further inquiry related to

juror no. 31's medication, and issues related to jury service,

the prosecutor exercised a peremptory challenge to juror no. 31.

The judge then noted that she considered excusing the juror for

cause based on him being treated for a severe mental illness,

but she chose not to do so based on juror no. 31's assurances

related to being properly medicated. Defense counsel objected

2 Juror no. 31 receives monthly injections of Haloperidol,
which are administered at a clinic in the Boston Medical Center.
7

because juror no. 31 was the second African-American venire

member that the prosecutor sought to strike.

When asked by the judge to provide a group-neutral

explanation for the challenge, the prosecutor noted the mental

health issue but explained that she was concerned that juror no.

31's brother was in Federal prison for a firearm conviction and

the defendant in this case was charged with violent firearm

offenses. The prosecutor added that her concern was similar to

the other African-American juror she had challenged, who had

friends that had been charged and convicted of murder.3

Defense counsel's position was that in Boston, a large

percentage of African-American venire members will have friends

or family that have been "arrested, charged or involved in some

sort of gun crime." Counsel also noted his initial concern

about juror no. 31's medication, and what could occur if he did

not take his medication during trial, but added that those

concerns were resolved given how the medication was administered

on a monthly basis. "[F]or those reasons," the defendant

objected. The judge found that the prosecutor's reasons for the

peremptory challenge were "group neutral," as well as being

"genuine and adequate."

3 The defendant does not claim any impropriety in this
venire member being excused.
8

Here, although the defendant's objection at trial noted

that juror no. 31 was being medicated for his mental illness, it

was not lodged based on the protections of the ADA or any

associated claim of "disability discrimination clothed as

implicit bias." Rather, the objection was based on juror no. 31

being the second African-American the prosecutor had challenged.4

In this posture, we are presented with an issue that was not

raised at trial, and one that does not comfortably avail itself

of an ordinary waiver analysis to determine if a substantial

risk of a miscarriage of justice exists. See Commonwealth v.

Randolph, 438 Mass. 290, 294-295 (2002). See also Commonwealth

v. Bourgeois, 391 Mass. 869, 877-878 (1984) ("A record in which

a party has not had an opportunity to explain the use of

peremptory challenges is inadequate to raise a Soares

violation"). Because it was not raised at trial, the prosecutor

was deprived of the opportunity to explain why her challenge to

the juror did not relate to disability discrimination or

implicit bias as these arguments did not bloom until appeal.

Moreover, when the basis for a peremptory challenge is made

for the first time on appeal, it is simply not possible for the

defendant to claim he made a prima facie showing at trial that

4 The defendant supported his objection with a statistical
claim regarding African-American jurors likely having a friend
or family member involved in some sort of firearm offense.
9

the totality of the relevant facts gave rise to an inference of

discriminatory purpose to overcome the presumption that the

challenge was proper. See Kozubal, 488 Mass. at 580. This is

compounded by the fact that the crucial opportunity for review

by the trial judge, who observed the voir dire, is lost.

Importantly, part of the trial judge's review entails her making

factual and credibility determinations related to whether the

reasons for the challenge were genuine and adequate. See

Commonwealth v. Prunty, 462 Mass. 295, 312-313 (2012) (judge's

decision on ultimate question of discriminatory intent

represents finding of fact). Our appellate office does not

equip us to undertake those evaluations. See Commonwealth v.

Jones-Pannell, 472 Mass. 429, 438 (2015) (improper for appellate

court to engage in independent fact finding). Cf. Kiely v.

Teradyne, Inc., 85 Mass. App. Ct. 431, 448 (2014) (declining "to

engage in impermissible appellate fact-finding by looking beyond

the jury verdict to speculate" as to damages). Lost here is the

fact that the defendant's trial was the "main event," and it was

not merely a "tryout on the road" to the appeal. Wainwright v.

Sykes, 433 U.S. 72, 90 (1977). Appellate review should be based

on what occurred at trial, not what might have been. See

Commonwealth v. Chase, 433 Mass. 293, 297 (2001); Commonwealth

v. Stout, 356 Mass. 237, 243 (1969).
10

Despite the obstacles in our appellate path, we are able to

say on this record that there was no risk that justice

miscarried because the judge did not abuse her discretion by

excusing juror no. 31. See Commonwealth v. Colon-Cruz, 408

Mass. 533, 550 (1990) (reviewing Soares challenge raised for

first time on appeal by considering whether record on its face

supported defendant's claim). "Article 12 of the Massachusetts

Declaration of Rights proscribes the use of peremptory

challenges 'to exclude prospective jurors solely by virtue of

their membership in, or affiliation with, particular, defined

groupings in the community.'" Commonwealth v. Smith, 450 Mass.

395, 405, cert. denied, 555 U.S. 893 (2008), S.C., 493 Mass.

1037 (2024), quoting Soares, 377 Mass. at 486. "These groupings

are defined by art. 1 of the Massachusetts Declaration of

Rights, as amended by art. 106 of the Amendments (Equal Rights

Amendment), which protects against discrimination based on sex,

race, color, creed, national origin, and sexual orientation."

Commonwealth v. Carter, 488 Mass. 191, 201 (2021). See

Commonwealth v. Aponte, 391 Mass. 494, 507 (1984). A disability

occasioned by mental illness, i.e., schizoaffective disorder in

this case, medicated or not, is not a recognized protected class

under art. 1.5 See United States v. Harris, 197 F.3d 870, 875-

5 In addition, a person's mental illness is not inextricably
linked to any other class catalogued in art. 1, or otherwise
11

876 (7th Cir. 1999), cert. denied, 529 U.S. 1044 (2000) (for

purposes of equal protection analysis, ADA does not provide

disabled persons heightened protection as suspect class against

peremptory challenges). See also Demunn v. State, 627 So.2d

1005, 1006-1007 (Ala. Crim. App. 1991), aff'd, 627 So.2d 1010

(Ala. 1992) (concluding that striking of venire member on basis

of disability was "race-neutral" reason); Donelson v. Fritz, 70

P.3d 539, 544 (Colo. App. 2002) (holding that "Batson does not

apply to peremptory challenges to persons with disabilities").

Cf. Williams v. Secretary of the Executive Office of Human

Servs., 414 Mass. 551, 564-565 (1993) (rejecting equal

protection claims of "homeless mentally ill" for lack of suspect

classification or fundamental interest at stake). In this

light, even if the ADA claim had been made at trial, it would

not have provided juror no. 31 with heightened protection due to

his mental illness. That is, "the totality of the relevant

facts" would have failed "to raise an inference of a

discriminatory purpose." See Sanchez, 485 Mass. at 511.

Furthermore, a review of the record before us reveals that

the judge accepted the prosecutor's "genuine" and "adequate"

justification for her peremptory challenge of juror no. 31.

expanded. See Carter, 488 Mass. at 201, citing Bostock v.
Clayton County, Ga., 590 U.S. 644, 660-661 (2020) (recognizing
that discrimination based on sexual orientation is inextricably
linked to discrimination based on person's sex).
12

Even though the prosecutor noted that juror no. 31 had a mental

health issue in her discussion with the judge, the animating

concern that prompted the prosecutor's peremptory challenge was

that juror no. 31's brother was in Federal prison for a firearm

conviction, as this was one of the offenses for which the

defendant was standing trial.6 As this was a similar reason for

which another African-American juror had been properly struck

without objection, there is no support for the defendant's claim

that the challenge to juror no. 31 was "disability

discrimination clothed as implicit bias."7

6 To the extent the defendant claims that this case involved
an improper, race-based peremptory challenge, which he raises
for the first time in his reply brief, it is waived. See
Commonwealth v. Hampton, 64 Mass. App. Ct. 27, 33 n.8 (2005).
Even if it were not waived, for the same reasons stated in the
text above, the defendant failed to demonstrate that the judge
abused her discretion. See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).

7 Also, for the first time on appeal, the defendant claims
that the allowance of the peremptory challenge to exclude juror
no. 31 violated his right to an impartial jury under the State
and Federal Constitutions. We disagree. Defendants are
guaranteed a venire that represents a fair cross section of the
community, and a violation occurs where a distinctive group has
been systemically excluded from the venire. See Commonwealth v.
Evans, 438 Mass. 142, 149 (2002), cert. denied, 538 U.S. 966
(2003), citing Taylor v. Louisiana, 419 U.S. 522, 537-538
(1975). Here, the defendant's claim lacks the factual predicate
to establish that mentally ill venire members constitute "a
distinctive group" or that such persons have become
"significantly underrepresented in the venire." Evans, supra at
149-150.
13

2. Prearrest silence. The defendant further claims that

the prosecutor twice impermissibly asked the defendant about his

prearrest silence, and improperly employed that silence in her

closing argument. In the first instance during her cross-

examination of the defendant, the prosecutor asked whether,

after the shooting, he "[drove] to the police station to report

what happened." The second occurred when the prosecutor asked

the defendant whether he "use[d] the phone to call the police."

Over objections, the defendant answered both questions in the

negative. Although we agree that the questions and the argument8

on the matter were improper, the defendant did not suffer any

unfair prejudice.

Because these claimed errors were preserved, we must

determine whether the improper questions and argument

constituted prejudicial error. "An error is not prejudicial if

it 'did not influence the jury, or had but very slight effect';

however, if we cannot find 'with fair assurance, after pondering

all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the

8 In part, to rebut the suggestion that the defendant acted
in self-defense, the prosecutor argued in her closing that
"despite alleging that he was the victim, the defendant doesn't
drive to the police station, he doesn't call the police, and he
doesn’t tell you in his timeline of events that he ever sought
any medical treatment as a result of this allegedly severe
beating." The defendant objected to this portion of the
argument.
14

error,' then it is prejudicial." Commonwealth v. Cruz, 445

Mass. 589, 591 (2005), quoting Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994). See Kotteakos v. United States, 328 U.S.

750, 764-765 (1946). Under this standard, we ask "whether the

references to the defendant's prearrest silence improperly led

the jury to ascribe 'consciousness of guilt' to the defendant."

Commonwealth v. Correira, 492 Mass. 220, 236 (2023). See

Commonwealth v. Pierre, 486 Mass. 418, 433 (2020).

In Jenkins v. Anderson, 447 U.S. 231, 238-239 (1980), the

United States Supreme Court held that a defendant's prearrest

silence may be used to impeach his credibility without violating

the self-incrimination privilege of the Fifth Amendment to the

United States Constitution, as applied to the States through the

Fourteenth Amendment, or the fundamental fairness guarantee of

the Fourteenth Amendment. Nonetheless, the Court left it to the

States to "formulate [their] own rules of evidence to determine

when prior silence is so inconsistent with present statements

that impeachment by reference to such silence is probative."

Id. at 239.

In Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982), the

Supreme Judicial Court determined, as a matter of common law,

that impeachment of a defendant with the fact that he had an

opportunity to tell the police his story prior to his arrest

must be approached with caution. If undertaken, there must be a
15

foundation laid demonstrating that it would have been "natural"

for the defendant to speak in such circumstances. Id. See

Mass. G. Evid. § 613 note, at 201-202 (2024). See also

Commonwealth v. Gardner, 479 Mass. 764, 770 (2018); Commonwealth

v. Sosa, 79 Mass. App. Ct. 106, 110 n.4 (2011). One aspect of

the common law rule is that a defendant's decision not to speak

with police may not be used as substantive evidence of

consciousness of guilt. See Pierre, 486 Mass. at 433.

Despite the seeming incongruity of a self-defense claiming

defendant to not contact or speak to the police, the Supreme

Judicial Court has repeatedly noted that "there may be many

reasons why a defendant does not wish to come forward and speak

to the police that have no bearing on his [or her] guilt or

innocence." Correira, 492 Mass. at 234, quoting Gardner, 479

Mass. at 769. See Commonwealth v. Niemic, 472 Mass. 665, 673

(2015), S.C., 483 Mass. 571 (2019) (defendant, who claimed self-

defense at trial, would not naturally have contacted police

prior to arrest). Compare Pierre, 486 Mass. at 434, citing

Commonwealth v. Barnoski, 418 Mass. 523, 534 (1994) (not natural

for defendant to contact police where "no immediate danger to

another that could have created an incentive to contact the

police to get help").

Here, in response to the defendant's objections, the judge

cautioned the prosecutor to proceed with care because the
16

defendant did not have an obligation to speak to the police.

At that point, the prosecutor did not lay a foundation or

utilize other evidence to illustrate that it would have been

natural for the defendant to speak in these circumstances.

However, she merely established that the defendant had the

opportunity to drive to the police station or call the police,

but not that he had a duty to clear his name. Importantly,

although the questions were improper, the prosecutor never

directly asked the defendant why he did not tell the police that

he acted in self-defense or why he did not clear his name, but

she did argue in closing that a person acting in self-defense

would have done so. See Pierre, 486 Mass. at 433 (improper to

consider defendant's failure to "clear his name" as evidence of

consciousness of guilt). See also Nickerson, 386 Mass. at 61

("the judge should not have instructed the jury that, in

assessing the reliability of the defendant's testimony, they

could consider the defendant's prearrest failure to tell the

police" that another person committed the crime).

To determine whether the error did not influence the jury,

or had but very slight effect, "we ask whether the references to

the defendant's prearrest silence improperly led the jury to

ascribe 'consciousness of guilt' to the defendant." Correia,

492 Mass. at 236. Cf. Pierre, 486 Mass. at 433. Where there is

other, properly admitted evidence of consciousness of guilt, and
17

the improper references to prearrest silence are cumulative of

that properly admitted evidence, unfair prejudice is unlikely.

See Correira, supra at 236-237. Here, the defendant's testimony

on direct and cross-examination provided strong, if not

compelling, evidence of his consciousness of guilt. In the

immediate aftermath of the shooting, the defendant fled his

long-term Massachusetts home and went to New York. See

Commonwealth v. Martin, 467 Mass. 291, 297, 309-310 (2014)

(defendant's flight from Massachusetts to Virginia demonstrated

consciousness of guilt). He left behind his belongings; his

cell phone (which he always carried); his job; and several

family members, including five of his six children.9 In New

York, he altered his appearance by changing the distinctive hair

style he had been wearing for fifteen years. See Commonwealth

v. Carrion, 407 Mass. 263, 277 (1990) (evidence that defendant

altered his appearance after murder admissible to show

consciousness of guilt). Also, rather than purchasing a new

9 Also, the defendant testified that he could not remember
where he left the car that he purportedly borrowed when he fled
the scene of the shooting. He later claimed that he had another
person notify the car's owner of its whereabouts, but then
returned to not remembering where he left the car before
agreeing that he left it in the Hyde Park section of Boston.
See Commonwealth v. Edgerly, 390 Mass. 103, 109 (1983) ("a
defendant's wilfully untrue testimony as to a material fact
tends to show consciousness of guilt" [quotation and citation
omitted]).
18

cell phone under his own name when he arrived in New York, the

defendant used his son's phone. All these matters provided the

jury with exceptionally strong evidence of consciousness of

guilt that overwhelmed or rendered merely cumulative the

improperly admitted evidence of the defendant's prearrest

silence.10 See Correira, supra; Pierre, supra at 434-435.

In addition to the properly admitted evidence of the

defendant's consciousness of guilt, the jury were also presented

with strong evidence of the defendant's role in the shooting.

This included the defendant's admission that he took the gun and

fired shots at the victim, and the eyewitness corroborations

that the defendant had the gun and shot the victims. Finally,

any evaluation of prejudice in this case must include an

examination of the verdicts. On an indictment charging first-

degree murder, the jury convicted the defendant of the lesser

included offense of voluntary manslaughter. The most plausible

explanation for this is that the jury largely credited the

defendant's testimony regarding his mitigating view of the case

presented by the Commonwealth. In the end, when looking at the

entire trial, we conclude that the improperly admitted evidence

10Furthermore, in the judge's jury instruction on
consciousness of guilt, she expressly referenced evidence that
the defendant "may have fled to New York" and "may have changed
his appearance," but she made no reference to the defendant's
prearrest silence vis-à-vis the police. This further limited
any prejudice resulting from the improperly admitted evidence.
19

and the subsequent argument did not influence the jury, or that

it had but very slight effect. See Cruz, 445 Mass. at 591. The

defendant did not suffer any unfair prejudice.

3. Firearm offenses. Finally, the defendant claims that

the judge erred by failing to instruct the jury that as an

element of the crimes of unlawful possession of a firearm and

unlawful possession of a loaded firearm,11 the Commonwealth had

the burden of disproving that the defendant had a license to

possess a firearm. We agree.

In Commonwealth v. Guardado, 491 Mass. 666 (2023) (Guardado

I), S.C., 493 Mass. 1 (2023) (Guardado II), petition for cert.

filed, U.S. Supreme Ct., No. 23-886 (Feb. 14, 2024), the Supreme

Judicial Court held that the due process clause of the

Fourteenth Amendment and the Second Amendment to the United

States Constitution require the Commonwealth to bear 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 instructions must relay this burden.

Guardado I, supra at 668, 692-693. Where the judge does not

11"Illegal possession of a loaded firearm, under G. L.
c. 269, § 10 (n), is not an independent charge but, rather,
'constitute[s] further punishment of a defendant who also [has]
been convicted under G. L. c. 269, § 10 (a).'" Commonwealth v.
Guardado, 491 Mass. 666, 670 n.4 (2023) (Guardado I), S.C., 493
Mass. 1 (2023) (Guardado II), petition for cert. filed, U.S.
Supreme Ct., No. 23-886 (Feb. 14, 2024), quoting Commonwealth v.
Tate, 490 Mass. 501, 520 (2022).
20

instruct on this burden, and where there is an absence of record

evidence on the lack of license, the defendant is entitled to

vacatur of the conviction. See Commonwealth v. Gibson, 492

Mass. 559, 579 (2023). The Supreme Judicial Court's holding in

Guardado I "applies prospectively and to those cases that were

active or pending on direct review as of the date of the

issuance of [New York State Rifle & Pistol Ass'n v. Bruen, 597

U.S. 1 (2022) (Bruen)]." Guardado I, supra at 694. Because the

instant 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. See Gibson, supra; Guardado I,

supra. In Guardado II, the Supreme Judicial Court clarified

that the remedy for an improper jury instruction outlined in

Guardado I was a new trial, and not a judgment of acquittal.

See Commonwealth v. Sosa, 493 Mass. 104, 120 (2023).

Here, it is undisputed, and understandably so, that the

judge did not instruct on an element of the firearm offenses

that did not exist at the time of trial. On our review of the

record, we could find no direct evidence that was introduced to

support any claim that the defendant did not have the necessary

license. Contrast Commonwealth v. Bookman, 492 Mass. 396, 401

(2023) (failure to give licensure instruction was harmless

beyond reasonable doubt where there was undisputed testimony
21

that defendant had no license). The Commonwealth does not claim

otherwise.

Instead, the Commonwealth claims that there was

circumstantial evidence from which an inference can be drawn to

support the conclusion that the defendant was not licensed. As

a result, it asserts that the error was harmless beyond a

reasonable doubt. See Bookman, 492 Mass. at 401. That

circumstantial evidence included the defendant's testimony that

the gun did not belong to him; Fonesca tried to sell him the gun

around a month prior to the shooting; the victim beat the

defendant with the gun; and the defendant only picked up the gun

when it was dropped during that beating. From these facts,

which were not part of the Commonwealth's case, the Commonwealth

claims that the jury could reasonably infer that the defendant

was not properly licensed, as he did not own the gun and thus

had no reason to be licensed. We disagree.

The Commonwealth is correct that inferences from

circumstantial evidence need only be "reasonable and possible,"

and not "necessary or inescapable." Commonwealth v. Casale, 381

Mass. 167, 173 (1980). However, "[t]he question of guilt must

not be left to conjecture or surmise." Commonwealth v.

Anderson, 396 Mass. 306, 312 (1985). Here, the inference that

the defendant was not licensed is merely conjecture. The

suggestion that the defendant was unlicensed because he did not
22

own the gun used in the shooting does not a fortiori establish

that he was unlicensed to own any gun. But even if the

inference was permissible, for purposes of the harmless beyond a

reasonable doubt analysis, the question is not whether the

inference supporting the missing element is reasonable and

possible. Rather, it is whether "the omitted element was

uncontested and supported by overwhelming evidence, such that

the jury verdict would have been the same absent the error."

Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847 (2018),

quoting Neder v. United States, 527 U.S. 1, 17 (1999). In this

light, even assuming the permissibility of the inference, the

evidence of the defendant not being licensed was certainly not

overwhelming. Accordingly, the error was not harmless beyond a

reasonable doubt, and the defendant is entitled to a new trial

on the firearm indictments.

4. Conclusion. For the reasons set forth above, we affirm

the defendant's conviction of voluntary manslaughter. We vacate

and set aside his convictions of unlawful possession of a

firearm and unlawful possession of a loaded firearm and remand

the case for further proceedings consistent with this opinion.

So ordered.