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Commonwealth v. Romero (Lawyers Weekly No. 10-045-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030;     SJC‑11149   COMMONWEALTH  vs.  ERIC ROMERO. Middlesex.     November 6, 2012.  ‑  March 15, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Firearms.  Practice, Criminal, Admissions and confessions.  Evidence, Constructive possession.       Complaint received and sworn to in the Waltham Division of the District Court Department on April 23, 2008.   The case was tried before Dyanne J. Klein, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Devon Dietz Hincapie for the defendant. Ceara C. Mahoney, Assistant District Attorney (Kevin J. Curtin, Assistant District Attorney, with her) for the Commonwealth. Brownlow M. Speer, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.       CORDY, J.  The defendant, Eric Romero, was convicted of carrying a firearm without a license in violation of G. L. c. 269, § 10 (a), based on a theory of constructive possession.  On appeal, he asserts that the Commonwealth failed to present evidence sufficient to establish as a matter of law that he had (1) knowledge of the firearm’s presence in his vehicle, (2) the ability to exercise control over the weapon, and (3) the intent to do so.  He also argues that the evidence on these points is susceptible to “equal and inconsistent” inferences and choosing between them amounts to impermissible conjecture.  Additionally, the defendant contends that it was error to permit the investigating police officer to testify about the defendant’s extrajudicial statements made at the time of his arrest, because they were not relevant to any element of the charged offense and introduced collateral issues that confused the jury.  Finally, the defendant avers that the Commonwealth’s reliance on a ballistics certificate, in order to prove the weapon was a “firearm” as defined by G. L. c. 140, § 121, without making the ballistician available for cross-examination was testimonial hearsay and violated the defendant’s right to confrontation under the Sixth Amendment to the United States Constitution.  On appeal, a divided panel of the Appeals Court affirmed.  Commonwealth v. Romero, 80 Mass. App. Ct. 791 (2011) (Romero).  We granted the defendant’s application for further appellate review.[1]   We conclude at the outset that the trial judge did not err in admitting the defendant’s extrajudicial statements.  We further conclude that although the evidence proffered by the […]


Posted by Massachusetts Legal Resources - March 15, 2013 at 7:56 pm

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