Commonwealth v. Gilson Teixeira.

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-1087

COMMONWEALTH

vs.

GILSON TEIXEIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the defendant appeals

from convictions of firearms and other offenses. 1 He argues that

all the indictments should have been dismissed, contending that

the Commonwealth recklessly violated an order of a Boston

Municipal Court (BMC) judge that the firearms not be tested

without a defense expert present. The defendant further argues

that the trial judge committed reversible error by failing to

instruct the jury, as required in Commonwealth v. Guardado, 491

Mass. 666, 690 (Guardado I), S.C., 493 Mass. 1 (2023), cert.

1The indictments at issue in dockets numbered 1684CR00937
and 1784CR00226 were tried together and the defendant's separate
appeals have been consolidated here under the present number.
denied, 144 S. Ct. 2683 (2024), that the defendant's lack of a

firearms license was an element of the crime that the

Commonwealth was required to prove. The parties agree that two

of the defendant's convictions are duplicative. We reverse the

defendant's conviction on the charge of possession of ammunition

without an FID card. We affirm all other convictions.

Background. Just after 9 P.M. on October 25, 2016,

surveillance cameras on a home in the Dorchester section of

Boston captured video footage that depicted three assailants

walking up to two victims and firing sixteen shots, resulting in

muzzle flashes. One of the shooters was wearing a dark coat

with a fur lined hood. Meanwhile, a green sedan, later

identified as a Nissan Maxima, circled the block twice, on one

of those occasions driving the wrong way on a one way street. 2

Nearby, Boston police Detective Jean Moses Acloque was

conducting a drug investigation in an unmarked vehicle. He

heard gunshots, saw the Nissan drive the wrong way on the one

way street, and then saw a person get into its rear passenger

seat. Detective Acloque followed the Nissan for about one-

quarter mile, never losing sight of it.

2 That video recording exhibit is not included in the
appellate record. The description of what it depicts is taken
from trial testimony and the unobjected-to representations of
both counsel in opening statement and closing argument.

2
Police stopped the Nissan. The defendant was in the rear

passenger seat, wearing a jacket with a fur lined hood. He was

bending forward toward the floor of the Nissan, where at his

feet police found a Smith & Wesson nine millimeter handgun with

no ammunition in it. In the rear middle seat was Belarmino

Monteiro, and in Monteiro's pocket was a Ruger nine millimeter

handgun loaded with two rounds of ammunition and bearing

Monteiro's fingerprints on the magazine. At the shooting scene,

police found sixteen nine millimeter cartridge casings

consistent with having been ejected from those two handguns. 3

On October 26, 2016, a complaint (firearms complaint)

issued in the BMC charging the defendant with firearms offenses.

Although no transcript of the defendant's arraignment is

included in the record before us, the parties agree that at that

arraignment the defendant's codefendant, Monteiro, filed a

motion to inspect the firearms; the BMC judge verbally ordered

that the Commonwealth refrain from testing the firearms until

one or more of the defendants had the opportunity to arrange for

a defense expert to be present. 4 The prosecution failed to

3 Under the passenger seat in the Nissan's rear driver's
side was a Colt .25 caliber handgun, which did not match any
cartridge casings at the scene. The trial judge allowed a
required finding of not guilty as to an indictment alleging that
the defendant unlawfully carried that firearm.

4 At arraignment, the defendant's case was scheduled for a
November 17, 2016 probable cause hearing. See Mass. R. Crim.

3
communicate the judge's order to the Boston police, and on

November 7, in violation of the order and unbeknownst to defense

counsel, a police ballistician tested the firearms. 5 On November

14, the BMC judge endorsed Monteiro's motion to inspect or test

evidence, ordering that Monteiro's "expert may be present at the

testing of any . . . alleged firearm(s)."

After learning of the ballistics testing conducted outside

the presence of the defense expert, on December 5, 2016, the

defendant filed in the BMC a motion for sanctions, arguing that

the Commonwealth had failed to comply with the BMC judge's order

at arraignment requiring the Commonwealth to refrain from

testing the firearms, and that this failure resulted in the

destruction of exculpatory evidence. The defendant sought

exclusion of any evidence of those firearms and moved for an

evidentiary hearing in the BMC and to sequester witnesses at it.

An evidentiary hearing was scheduled in the BMC for February 8,

2017.

P. 3 (f), as appearing in 442 Mass. 1502 (2004). The
Commonwealth has not argued that it was required to expedite
testing of the firearms to prepare for that hearing, and so we
do not consider that issue.

5
No documentation of the testing is included in the
appellate record before us. At oral argument, counsel for both
parties agreed that the firearms testing occurred on November 7,
2016, as stated by a codefendant's counsel at a Superior Court
hearing.

4
On December 12, 2016, a complaint (assault crimes

complaint) issued in the BMC charging the defendant with

additional offenses including assault by means of a dangerous

weapon, discharge of a firearm within 500 feet of a dwelling,

and wanton destruction of property. On December 14, a grand

jury returned indictments (assault crimes indictments) against

the defendant alleging those same offenses as well as two counts

of armed assault with intent to murder, for which jurisdiction

lies in Superior Court. After the defendant was arraigned in

Superior Court on the assault crimes indictments, the assault

crimes complaint was dismissed.

On January 13, 2017, a motion hearing was held in the BMC. 6

On the same day, the Commonwealth entered a nolle prosequi of

the firearms complaint. As a result, the BMC sanctions hearing

scheduled for February 8 was cancelled.

On March 29, 2017, a grand jury returned additional

indictments (firearms indictments) against the defendant. As at

issue here, those included indictments alleging that the

defendant unlawfully possessed two firearms (the Smith & Wesson

and Ruger handguns), carried a loaded firearm while unlicensed,

and unlawfully possessed ammunition.

6 No transcript of that hearing is in the appellate record.

5
In Superior Court, the defendant filed two motions to

dismiss the indictments. 7 In the first motion the defendant

argued that the indictments should be dismissed as a sanction

for the Commonwealth's violation of the BMC judge's order that

the firearms not be tested without a defense expert present. In

the second motion, the defendant argued that the indictments

should be dismissed as a sanction for the Commonwealth's

improper indictment of him, arguing that it improperly obtained

the assault crimes indictments and then entered a nolle prosequi

of the firearms complaint, without having yet obtained the

firearms indictments, to avoid the sanctions hearing scheduled

in the BMC for February 8, 2017. A Superior Court judge (motion

judge) denied both motions to dismiss.

After a trial before another judge (trial judge), with

respect to the indictments charged under docket number

1784CR0026, a jury convicted the defendant of two counts of

unlawfully carrying a firearm, G. L. c. 269, § 10 (a); carrying

a loaded firearm without a license, G. L. c. 269, § 10 (n); and

possessing ammunition without an FID card, G. L. c. 269,

7 Those motions were filed only in the case pertaining to
the firearms indictments, but in them the defendant sought to
exclude any evidence of the firearms, which presumably would
have affected the Commonwealth's proof as to the assault crimes
indictments. For the purposes of our analysis, we assume that
the motion judge's rulings on the motions to dismiss pertained
to both the firearms and assault crimes indictments.

6
§ 10 (h). With respect to the indictments charged under docket

number 1684CR00937, the jury convicted the defendant of assault

by means of a dangerous weapon, G. L. c. 265, § 15B (b);

discharge of a firearm within 500 feet of a building, G. L.

c. 269, § 12E; and three counts of wanton destruction of

property, G. L. c. 266, § 127. 8 This appeal followed.

Discussion. 1. Motions to dismiss. a. As sanction for

violation of BMC order. On appeal, the defendant argues that

the prosecution was reckless, not negligent, in permitting

police to test the firearms in violation of the BMC judge's

order. As evidence of the Commonwealth's recklessness, the

defendant points to Commonwealth v. Sanford, 460 Mass. 441, 450

(2011), in which the same district attorney's office and police

department violated a similar discovery order.

After an evidentiary hearing at which two prosecutors and

an administrative assistant testified, the motion judge found

that "at worst, the individual staff members of the Suffolk

County District Attorney's Office were negligent." The motion

judge did not make specific findings of fact as to what each of

8 The defendant was acquitted of the two counts of armed
assault with intent to murder, one count of assault by means of
a dangerous weapon, and one count of wanton destruction of
property.

7
those witnesses did, 9 and the exhibits introduced at the hearing

are not included in the appellate record. 10 The motion judge

reserved ruling on whether the defendant was prejudiced by the

Commonwealth's negligence until the firearms were tested by a

defense expert. At the next hearing date, a codefendant's

counsel reported that a defense expert had tested the firearms

and they were operable, and the motion judge ruled that, absent

any showing that the police ballistician had altered the

firearms to render them operable, any prejudice was speculative.

In contrast to the motion judge's clear finding that the

employees of the prosecution were "at worst . . . negligent," in

9 The motion judge heard testimony that the prosecutor who
was present at the BMC arraignment sent an e-mail to several
prosecutors in the office's gang unit referring the case for
review for possible indictment and informing them of the BMC
judge's ruling. Sixteen months before, a policy had been
circulated by e-mail to all employees of the district attorney's
office stating that it was the responsibility of the prosecutor
present at arraignment to notify police of any court order not
to test evidence; the BMC prosecutor had received the e-mail but
was not aware of the policy. Neither the BMC prosecutor nor the
gang unit prosecutors notified police of the BMC judge's order
not to test the firearms. Instead, an administrative assistant
in the gang unit sent to the Boston police a request that the
firearms be examined for latent prints and ballistics testing.
On October 31, 2016, the Boston police e-mailed the
administrative assistant that the request had been received and
the report would be forwarded upon completion.

10From the transcript, it appears that those exhibits
included the BMC prosecutor's e-mail to the gang unit, the
administrative assistant's request for testing, and the police
department's response.

8
Sanford, "[t]he judge's findings [were] unclear on the question

of the level of the Commonwealth's culpability, and specifically

whether it acted in bad faith or in reckless disregard of the

court's order." 460 Mass. at 450. Based on the incomplete

appellate record before us, we cannot say that the motion judge

abused his discretion in finding that the Commonwealth's conduct

was negligent and not reckless. See Commonwealth v. Seino, 479

Mass. 463, 477 n.21 (2018) (defendant failed to establish that

Commonwealth acted recklessly in failing to preserve police

notes or photographs). Contrast Sanford, 460 Mass. at 451

(remanding for evidentiary hearing on "the likely exculpatory

nature of the unobserved first test firing or the

[Commonwealth's] level of culpability").

Moreover, the defendant has not shown prejudice. As

mentioned above, the video footage of the shooting depicted

muzzle flashes. The defendant contends that if a defense expert

had been present at the original testing, the expert might have

seen the police ballistician adjust the firearms to render them

operable. But, notwithstanding the difficulty -- or

impossibility -- of demonstrating what happened at an event from

which the defense was excluded, the case law requires that where

the Commonwealth's action was merely negligent, the defendant

demonstrate "a reasonable possibility, based on concrete

evidence rather than a fertile imagination, that access to the

9
[material] would have produced evidence favorable to his cause."

Sanford, 460 Mass. at 447 (quotation omitted). See Commonwealth

v. Williams, 455 Mass. 706, 718 (2010). The motion judge

invited the defendant's counsel to consult with the defense

ballistics expert and then move for sanctions during trial for

the discovery violation, which might include the trial judge's

excluding the firearms or giving a jury instruction. The

defense did not do so. 11 At trial, on cross-examination of the

police ballistician, defense counsel did not ask if his test

firing of the firearms was in violation of the BMC judge's

order. Nor did defense counsel ask if the ballistician had

altered the handguns to render them operable.

b. As sanction for improper indictment. The defendant

argues that the motion judge should have dismissed the

indictments as a sanction for what he contends was the

Commonwealth's improper indictment of him on the firearms

offenses. He argues that, after obtaining the assault crimes

indictments and entering a nolle prosequi of the firearms

complaint, it was improper for the Commonwealth to obtain the

firearms indictments.

11In fact, defense counsel told the trial judge, "Obviously
[the ballistician] should be able to testify that the firearms
are in fact firearms."

10
In its nolle prosequi of the firearms complaint, the

Commonwealth stated its reason as: "The defendant has been

recently indicted for more serious crimes, occurring on the same

date and using the same firearms. . . . Therefore, it is not in

the interest of justice to prosecute in two different courts."

The defendant argues that that language in the nolle prosequi

amounted to a promise by the Commonwealth "not to pursue" the

firearms charges, and therefore the Commonwealth's subsequently

obtaining the firearms indictments was improper. We are not

persuaded.

In denying the motion to dismiss for improper indictment,

the motion judge stated that the firearms offenses were "tied in

inextricably" to the armed assault with intent to murder

indictments, over which the BMC did not have jurisdiction, and

thus the Commonwealth's nolle prosequi of the firearms complaint

was "inevitable." The motion judge also found that the

defendant was not prejudiced by the cancellation of the

sanctions hearing in the BMC, because a sanctions hearing was

held in Superior Court. The motion judge denied the defendant's

request to call the prosecutor who signed the nolle prosequi to

testify about his reasons for doing so, noting that doing so

would raise "separation of powers issues."

"Generally speaking, the Commonwealth has absolute

authority to enter a nolle prosequi at any point before

11
sentencing, see Mass. R. Crim. P. 16 (a), 378 Mass. 885 (1979)"

(quotation omitted). Commonwealth v. Boyd, 474 Mass. 99, 103

(2016). "[T]he decision to nol pros a criminal case is within

the discretion of the executive branch of government, free from

judicial intervention." Commonwealth v. Gordon, 410 Mass. 498,

500 (1991). When entering a nolle prosequi, a prosecutor must

provide an explanation for the entry. Commonwealth v. Denehy,

466 Mass. 723, 734 n.15 (2014). It did so here. "For all that

appears, the decision to proceed by indictment was a proper

exercise of the prosecutor's discretion and was made

independently of any desire to intrude on the prerogatives of

the [BMC] judge." Commonwealth v. Hinterleitner, 391 Mass. 679,

682-683 (1984). Contrast Commonwealth v. Benton, 356 Mass. 447,

448 (1969) (after prosecutor entered nolle prosequi as part of

plea agreement, subsequent indictment for identical offenses

improper).

We discern no prejudicial error or abuse of discretion in

the motion judge's denial of both motions to dismiss.

2. Lack of Guardado I instruction. The defendant also

argues that a substantial risk of a miscarriage of justice arose

when, at trial in 2021, the judge did not instruct the jury that

the Commonwealth had to prove that the defendant lacked a valid

firearms license, as required by Guardado I, 491 Mass. at 690.

The Commonwealth concedes error but argues that the error was

12
harmless beyond a reasonable doubt. See Commonwealth v. Souza,

492 Mass. 615, 638 (2023).

The indictments for unlawful possession of firearms and for

carrying a loaded firearm each alleged that the defendant did

not "hav[e] in effect a license to carry firearms." During

trial, a police officer testified without objection that neither

the defendant nor the other four occupants of the Nissan were

licensed to carry firearms. 12

During his jury instructions, the trial judge referred to

the firearms offenses as "possession of a firearm without a

valid license to carry firearms and possession of a loaded

firearm without a valid license to carry firearms." The

defendant did not object to the instructions or ask the trial

judge to explain the licensing statutes, G. L. c. 140,

§§ 131 & 131F, which were cited in the two indictments for

unlawful possession of a firearm. As recited in open court, the

jury's verdicts on those two indictments specified that the

defendant had "no license."

12In addition, the transcript documents that the police
bodycam video footage played for the jury recorded an officer
asking if someone had a license to carry firearms. That bodycam
video footage was admitted in evidence, but is not in the
appellate record, and so we cannot ascertain if those questions
were directed to the defendant or if he responded.

13
In those circumstances, assuming that after Guardado I, 491

Mass. at 686, the defendant was entitled to a more fulsome

instruction on the Commonwealth's burden to prove that he did

not have a firearms license, the absence of such an instruction

was harmless beyond a reasonable doubt. See Commonwealth v.

Bookman, 492 Mass. 396, 401 (2023).

3. Duplicative convictions. The Commonwealth and the

defendant agree that the defendant's convictions for carrying a

loaded firearm, G. L. c. 269, § 10 (n), and unlawful possession

of ammunition, G. L. c. 269, § 10 (h), both pertaining to the

Ruger, are duplicative.

Conclusion. The conviction of unlawful possession of

ammunition without an FID card (count five, docket number

1783CR00226) is reversed, the verdict is set aside, and judgment

on that count only shall enter for the defendant. All other

judgments on both dockets are affirmed.

So ordered.

By the Court (Rubin, Grant &
Hershfang, JJ. 13),

Clerk

Entered: September 9, 2024.

13 The panelists are listed in order of seniority.

14