Commonwealth v. William Wright.

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-1296

COMMONWEALTH

vs.

WILLIAM WRIGHT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

We need not repeat the lengthy procedural history of this

case, most of which is set forth in Commonwealth v. Wright, 101

Mass. App. Ct. 1116 (2022). As relevant here, a panel of this

court vacated most of the defendant's convictions stemming from

an armed home invasion based on the Commonwealth's failure to

disclose certain evidence (Brady violation 1). See id. However,

the panel affirmed the defendant's convictions for unlawfully

carrying a firearm and resisting arrest, concluding that the

1 See Brady v. Maryland, 373 U.S. 83 (1963).
defendant was not prejudiced by the Commonwealth's nondisclosure

of evidence with respect to these two charges. 2 See id.

Following remand, but prior to retrial, the Supreme

Judicial Court decided Commonwealth v. Guardado, 491 Mass. 666

(2023) (Guardado), prompting the defendant to file a motion for

new trial seeking to vacate his firearm conviction. He argued

that he was entitled to a new trial because the judge did not

instruct the jury that the lack of licensure is an essential

element of the offense. He also argued that the impact of the

Brady violation must be considered in assessing the prejudicial

impact of the Guardado error. In a thoughtful memorandum of

decision, the motion judge, who was also the trial judge, denied

the motion, and the subsequently filed motion for

reconsideration. The defendant timely appealed. We affirm.

Discussion. It is undisputed that the judge did not

instruct the jury that the Commonwealth must prove beyond a

reasonable doubt that the defendant did not have a license to

carry a firearm. See Guardado, 491 Mass. at 667. This was

error. Reviewing the entire trial record, we must then

determine whether the error was harmless beyond a reasonable

doubt. See Commonwealth v. Tavares, 482 Mass. 694, 709 (2019).

2 The defendant did not seek further appellate review. A
single justice of this court denied the Commonwealth's motion to
stay this appeal until the defendant's retrial occurred.

2
In Commonwealth v. Bookman, 492 Mass. 396, 401 (2023), the

Supreme Judicial Court held that where a police officer

testified that the defendant did not have a license to carry a

firearm, and where the officer's credibility was not in

question, the failure of the judge to instruct the jury on

licensure was harmless beyond a reasonable doubt.

This case is similar to Bookman, as the Commonwealth

presented evidence that the defendant did not have a license to

carry a firearm. The evidence on this point was brief, and

uncontested. Chicopee police Detective Michael Dion was asked

"[W]as there a records check of whether or not [the defendant]

had any sort of license to carry or a license for firearms?"

Dion answered that "[t]here was no license issued to [the

defendant] from the Commonwealth of Massachusetts for a license

to carry, LTC." There was no objection to this testimony, and

Dion was not cross-examined on this point.

The defendant claims that this case is distinguishable from

Bookman. First, he argues that Dion's testimony was hearsay and

therefore it was insufficient to render the error harmless.

Because the defendant did not object to this testimony, the jury

was permitted to consider it for its truth. See Commonwealth v.

Silva, 431 Mass. 401, 404 (2000), quoting Commonwealth v.

Keevan, 400 Mass. 557, 562 (1987) ("Hearsay which is not

objected to at trial may be 'weighed . . . with the other

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evidence, and given any evidentiary value which it may

possess'"). See also Mass. G. Evid. § 802 (2024). Thus, there

was sufficient evidence of the defendant's lack of licensure.

Moreover, nothing in Bookman turned on whether the evidence of

licensure was hearsay. See Bookman, 492 Mass. at 400-401.

The defendant claims that we should not consider his

failure to dispute Dion's testimony, contending that it is not

relevant to the analysis because, at the time of trial, evidence

of a lack of licensure was "irrelevant." Again this reasoning

is contrary to Bookman where, in determining the instructional

error was harmless beyond a reasonable doubt, the court noted

that the evidence of nonlicensure was undisputed at trial. Id.

at 401. Finally, to the extent that the defendant argues that

Bookman was wrongly decided, we have "no power to alter,

overrule or decline to follow the holding of cases the Supreme

Judicial Court has decided." Commonwealth v. Vasquez, 456 Mass.

350, 357 (2010), citing Commonwealth v. Dube, 59 Mass. App. Ct.

476, 485-486 (2003).

Lastly the defendant contends that the "combined impact of

the Guardado error and the Brady violation was not harmless

beyond a reasonable doubt" and therefore he is entitled to a new

trial. 3 He argues that he could have used the undisclosed

3 The Commonwealth responds that the defendant is directly
estopped from making this argument because this issue has

4
photographic evidence to impeach Dion's testimony, and therefore

the evidence of the defendant's lack of licensure would have

been put in doubt. He points to two possible modes of

impeachment. First, he now highlights inconsistencies between

Dion's testimony at a prior motion hearing concerning the

booking process and his testimony at trial, but these perceived

inconsistencies were not related to the photographs involved in

the Brady violation, and the defendant could have pointed out

the inconsistencies at trial. Second, as to the undisclosed

crime scene photos, the defendant points only to Dion's

testimony that he took boots off of the defendant and tagged

them during the booking process, whereas photos show the boots

were lying in the snow at the time of the arrest. Based on the

photographs, the defendant contends that he would have been able

to "raise a reasonable doubt about the accuracy" of Dion's

testimony. Put differently, he claims that if Dion was mistaken

in any way about the boots, then he could have also been

mistaken about the licensure. 4 We are not persuaded. Dion, who

already been decided in a final judgment between the same
parties. We pass on the question of direct estoppel, concluding
that the instructional error was harmless beyond a reasonable
doubt.

4 We note that the defendant would be unable to dispute the
lack of licensure at trial because he was a prohibited person
who is not permitted a license to carry a firearm pursuant to
G. L. c. 140, § 131 (d) (i).

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was present at the arrest scene when the defendant was placed on

a stretcher, testified, "I think he had boots on, because there

was snow, yeah, boots." At most, the photographs show that at

some point at the arrest scene, the defendant did not have his

boots on -- a point not necessarily inconsistent with any of

Dion's testimony about seeing boots worn by the defendant or

tagging boots later at the station as evidence. To the extent

there may be an arguable inconsistency between Dion's testimony

and the photographs, such evidence tended generally to impeach

Dion's testimony, but it does not suggest that Dion's overall

testimony "was in question." Bookman, 492 Mass. at 401.

Although there may be some circumstances where a discovery

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violation may have an impact on a trial error, that is not the

case here.

Order denying motion for new
trial affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Blake, Walsh &
Hodgens, JJ. 5),

Clerk

Entered: October 16, 2024.

5 The panelists are listed in order of seniority.

7