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Commonwealth v. Drapaniotis

Appeals Court of Massachusetts, Middlesex

April 1, 2016

Alexandria Drapaniotis

         Argued December 30, 2015.

          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.

         Present: Kafker, C.J., Cypher, Berry, Green, & Blake, JJ.[1]


         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

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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

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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 that trial testimony, we conclude that the defendant's convictions of larceny of the .45 and unlawful possession of the .45 without a license were supported by sufficient competent evidence, including as to operability. This follows in particular because Drapaniotis testified that he fired the .45.

         There is no such evidence concerning the .38. Indeed, reduced to the evidentiary core, only two words in Drapaniotis's testimony are directed to the precise issue of proof of this element of operability, that is, whether the .38 was capable of discharging a bullet. The prosecutor questioned: " Who said it worked?" Drapaniotis answered: " The dealer." (The short context in which this question and answer fell in a five question/five answer sequence is quoted in full, infra ). This testimony, including even the five-question, five-answer context, does not constitute either competent evidence or sufficient evidence of proof of an essential element of the firearm criminal statutes. Further, as discussed herein, the salesman's statement came into evidence only because defense counsel failed to object to what was clearly objectionable: its double hearsay nature and lack of foundation. Therefore, no one knows (and there is no proof of) how or whether the salesman had any basis in personal knowledge or any other basis in fact to serve as a separate foundation (such as a manufacturer's

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test report or certification) to support that of which he randomly spoke.


          Although the prosecutorial burden to prove that a firearm is operable and capable of discharging a bullet and thus is a " firearm" as defined in the criminal statutes may not be a heavy one, significantly, it is a burden that rests on " competent evidence." Commonwealth v. Loadholt, 456 Mass. 411, 430-431, 923 N.E.2d 1037 (2010), S. C., 460 Mass. 723, 954 N.E.2d 1128 (2011). The case law is clear: to meet the burden of proof of operability, " the Commonwealth [must] present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire." Ibid., quoting from Commonwealth v. Nieves, 43 Mass.App.Ct. 1, 2, 680 N.E.2d 561 (1997). See Commonwealth v. Barbosa, 461 Mass. 431, 435, 961 N.E.2d 560 (2012) (" The Commonwealth was required to prove as an essential element of its case that the weapon recovered was a working or operable firearm; that is, that the gun was capable of discharging a shot or bullet" ); Nieves, supra (Commonwealth's burden of proof is to " present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire" ). See also Commonwealth v. Housewright, 470 Mass. 665, 680, 25 N.E.3d 273 (2015) (despite fact that gun was not recovered, there was sufficient and competent evidence to establish operability based on witnesses' testimony that witnesses saw " the defendant load[ ] and then fire[ ] a weapon that looked like a gun, sounded like a gun, and flashed like a gun" ).

         Competent evidence is a sine qua non of proof of the operability element of the firearm offense and is also intertwined with the sufficiency of the evidence standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). Embedded in Latimore is the axiomatic standard of review in determining sufficiency that is continually, indeed is relentlessly, relied upon, and quoted from, in our criminal cases. We repeat here, on one side of the balance, that Latimore holds that evidence is to be viewed in the light most favorable to the prosecution to determine whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ibid., quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, also embedded in Latimore is the counterbalancing standard of review, equally axiomatic, that " it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational

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trier of fact of each such element beyond a reasonable doubt." Id. at 677-678.

         The intertwining between competent evidence on the operability element of proof set forth in Loadholt, supra , Barbosa, supra, and Nieves, supra (and cases that follow in their wake), and the Latimore evidence sufficiency standard is quite well illustrated in the Nieves case:[6]

" [I]n the absence of some evidence of capacity to discharge a bullet, such as that the gun was fired, the manner it was used, the ammunition inside, the testimony of persons who handled the gun, testimony of persons familiar with guns, or a ballistics certificate, the evidence is insufficient to put to the jury the question of fact, on proper instruction, whether the gun in question is capable of discharging a bullet. To require less would strip of meaning the Legislature's careful definition of a firearm as a weapon which, whether loaded or unloaded, is one from which a shot or bullet can be discharged."

43 Mass.App.Ct. at 3-4.

          In cases such as this one -- no firearm available as a trial exhibit, no ballistics evidence -- the necessary element of operability may be proved by witness testimony and related circumstantial and corroborative evidence. See Commonwealth v. Tuitt, 393 Mass. 801, 810, 473 N.E.2d 1103 (1985); Commonwealth v. Muniz, 456 Mass. 166, 171, 921 N.E.2d 981 (2010). However, where proof of operability rests on such witness testimony and other related circumstantial evidence, the testimony and other evidence itself must be competent and sufficient. We turn then to the testimony relating to operability underlying the subject convictions.

         Drapaniotis testified that he worked for a security company and was licensed to carry a firearm. In 1999, Drapaniotis bought the .45 (which was a used firearm). In 2000 or 2001 Drapaniotis bought the .38 (which was a new firearm).

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          On or about May 17, 2006, Drapaniotis discovered that the .38 was missing. Then, on or about December 19, 2008, Drapaniotis discovered that the .45 was missing. At both times, he reported the theft of the respective guns to the Medford police department. Drapaniotis testified that the defendant had been present in the family home around the dates that each gun went missing. He further testified in detail about the defendant's struggle with heroin addiction.

         After reporting the .45 missing to the police in December, 2008, Drapaniotis told the defendant that she needed to speak with the police or she would not be allowed to return to the home. On December 22, 2008, the defendant then spoke with Officer David Rooney at the Medford police station, where she admitted to stealing each of Drapaniotis's guns. The defendant ...

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