Commonwealth v. Drapaniotis (Lawyers Weekly No. 11-038-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us   14-P-754                                        Appeals Court   COMMONWEALTH  vs.  ALEXANDRIA DRAPANIOTIS.   No. 14-P-754. Middlesex.     December 30, 2015. – April 1, 2016.   Present:  Kafker, C.J., Cypher, Berry, Green, & Blake, JJ.[1] Firearms.  Evidence, Firearm, Hearsay.     Indictments found and returned in the Superior Court Department on September 28, 2010.   The cases were tried before Thomas A. Billings, J., and following a mistrial, the remaining cases were tried before Bruce R. Henry, J.     David J. Rotondo for the defendant. Emily Kathleen Walsh, Assistant District Attorney, for the Commonwealth.   BERRY, J.  Presented in this appeal are the defendant’s three convictions arising out of her stealing firearms owned by her father,[2] and then selling or trading the firearms for drugs.  There were five indictments, involving three different firearms.  There were two trials.  The first trial resulted in one conviction, one verdict of not guilty, and a mistrial by jury deadlock on the three other indictments.  In the second trial, convictions entered on those three remaining indictments, and those convictions are pending in this appeal.[3] The three convictions on appeal and the two particular firearms at issue are as follows:  (a) on one indictment (count 3), the defendant was convicted under G. L. c. 266, § 30(1), of larceny of a Smith and Wesson .45 caliber pistol (hereinafter the .45); (b) on another indictment (count 1), the defendant was convicted under G. L. c. 266, § 30(1), of larceny of a .38 caliber handgun (hereinafter the .38); and (c) on yet another indictment (count 4), the defendant was convicted under G. L. c. 269, § 10(a), of unlawful possession of the .45 without a license, whether said firearm was loaded or unloaded. Each applicable firearm statute — G. L. c. 266, § 30(1), and G. L. c. 269, § 10(a) — requires proof that the subject firearm was operable, i.e., that it was a firearm “from which a shot or bullet can be discharged.”[4] In this case, the sole issue on appeal is directed to whether the Commonwealth met its burden of proof on operability of the .45 and the .38 by sufficient and competent evidence.  Because the two firearms were never recovered following the defendant’s selling or trading of them, there was no ballistics analysis.  Nor, of course, was either the .38 or the .45 introduced in evidence as an exhibit.  Thus, proof of operability rested on Drapaniotis’s trial testimony.[5]  Having reviewed […]

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