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12-P-1922                                             Appeals Court

              COMMONWEALTH    vs.   STEPHEN M. INDRISANO.


                             No. 12-P-1922.

            Essex.       October 1, 2014. - August 4, 2015.

               Present:    Berry, Hanlon, & Carhart, JJ.


Firearms. Evidence, Firearm, Presumptions and burden of proof,
     Rebuttal, Argument by prosecutor, Prior inconsistent
     statement, Consciousness of guilt. License. Practice,
     Criminal, Presumptions and burden of proof, Affirmative
     defense, Instructions to jury, Affidavit, Admissions and
     confessions, Argument by prosecutor.



     Complaint received and sworn to in the Lynn Division of the
District Court Department on March 19, 2009.

     The case tried before Stacey Fortes-White, J., and a motion
for a new trial was heard by her.


     Mark G. Miliotis for the defendant.
     Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.       After a jury trial, the defendant was convicted

of possession of a firearm and possession of a loaded firearm,
                                                                       2


both without a license.1    His motion for a new trial was denied.2

On appeal, his chief arguments are the following:    (1) the judge

improperly shifted the burden of proof with respect to his

affirmative defense of "licensure"; (2) it was error for the

judge to give a consciousness of guilt instruction; (3) it was

error to allow the Commonwealth to offer rebuttal evidence; (4)

the prosecutor's cross-examination of the defendant with his

prior inconsistent statements was improper, as was the

prosecutor's summation referring to that evidence; and (5) the

judge erroneously denied the defendant's motion for new trial.

We affirm.

     Background.    On March 18, 2009, Sergeant Richard Ball of

the Massachusetts State Police stopped the defendant in his GMC

pickup truck near the intersection of Route 107 and Route 60 in

Saugus.3   When Ball activated the lights and siren on his

unmarked police cruiser, the defendant immediately slowed and

pulled over to the right shoulder.    However, he then traveled

another five hundred feet before coming to a complete stop.       As

the truck slowed, Ball was driving immediately behind it; he

     1
       On the first day of trial, the charge of possession of
ammunition without a firearm identification card was dismissed
at the request of the Commonwealth.
     2
         Both appeals were combined in the one docket number.
     3
       The defendant was stopped for a civil motor vehicle
infraction -- changing lanes and making a left turn without
signaling.
                                                                     3


observed, through the large window in the back of the truck cab,

the defendant reach his arm behind the "split bucket" passenger

seat.    The defendant's arm and shoulder were moving up and down,

and he appeared to be "covering something up" that was in back

of the seat.

     Approaching the passenger's side of the defendant's truck,

Ball said to the defendant, "[S]how me your hands"; the

defendant complied.    When Ball asked whether the defendant had

any weapons, the defendant replied that he had a knife in his

pocket.    Ball asked the defendant to get out of the truck so

that Ball could "pat him down and check for weapons for [Ball's]

safety."    Ball then recited to the defendant his Miranda rights.

     After acknowledging that he understood his Miranda rights,

the defendant told Ball that there was a gun in the tool bag

behind the seat of the trunk.    Ball found the loaded gun where

the defendant said it would be, covered by a T-shirt.     The

defendant also stated that "it was his son's gun," and that he

needed it for "transport[ing] a lot of money."    Ball arrested

the defendant, secured the loaded gun, and took it back to the

State police barracks in Revere.4

     Prior to trial, the defendant moved to dismiss the firearms

charges, arguing that his constitutional rights were violated by

     4
       Afterwards, the gun was transported to the ballistics lab
for testing, where it was test fired and proved to be a firearm
loaded with five rounds of ammunition. See G. L. c. 140, § 121.
                                                                    4


the Massachusetts statutes regulating possession of firearms and

by the Massachusetts firearms licensing statutes.   In support of

the motion to dismiss and the motions to reconsider the judge's

denial of his motion to dismiss, the defendant filed at least

two affidavits in which he recited that, in 1998, when he sought

to renew his expired license to carry a firearm, the chief of

police in Winthrop told him that his license would not be

renewed.

    The Commonwealth filed a motion in limine, seeking to

preclude the defendant's affirmative defense of license.    In

response, the defendant and his attorney represented in

affidavits that the defendant's earlier affidavits were

mistaken.   The defendant's new position was that, when he went

to the Winthrop police station to renew his license, the

information he received meant only that there was no need to

apply at that time, not that his application was denied.    The

judge denied the Commonwealth's motion in limine.   Thereafter,

the defendant testified at trial that he was surprised when Ball

arrested him because he had a license to carry a firearm,
                                                                     5


although he knew at the time that the license had expired.5     He

was convicted of both counts.6

     Discussion.   1.   Affirmative defense.7   The defendant argues

that the judge improperly shifted the burden of proof with

regard to his affirmative defense of license.     He contends that

providing his expired license was sufficient to raise the

affirmative defense and that the burden then shifted to the

Commonwealth to disprove the defense beyond a reasonable doubt.

The defendant also asserts that the judge improperly instructed

the jury on his affirmative defense, causing confusion about the

burden of proof.

     It is "an offense to 'knowingly' possess a firearm outside

of one's residence or place of business without also having a

license to carry a firearm that has been issued under the

     5
       Trial exhibit two was the defendant's license to carry a
firearm; it expired in 1993. Trial exhibit three was his
renewed license that expired in 1998.
     6
       There are no issues before this court relating to the
stop, the seizure of the gun, or whether the gun was a firearm,
as defined by the statute. See G. L. c. 140, § 121.
     7
       As a preliminary matter, we reject the Commonwealth's
argument that the defendant "never complied with the procedural
rules to raise an affirmative defense." In advance of trial, at
least by the time of the hearing on the Commonwealth's motion in
limine, the Commonwealth was on notice that the defendant would
argue that he was subject only to civil penalties because he had
an expired license and he had never filed an application that
was denied. The defendant's first affidavit to that effect was
filed in court on January 27, 2012. The trial began on February
15, 2012, and it does not appear from the record before us that
the Commonwealth sought additional time to rebut the defense.
                                                                      6


licensing provisions of G. L. c. 140, § 131."     Commonwealth v.

Powell, 459 Mass. 572, 588 (2011), cert. denied, 132 S. Ct. 1739

(2012).    See G. L. c. 269, § 10(a).   "[A] defendant charged with

a possessory firearms offense [under G. L. c. 269, § 10,] can

raise the defendant’s own license as a defense."     Commonwealth

v. Humphries, 465 Mass. 762, 767 (2013).     "Such a defendant

must, prior to trial, provide notice of intent to raise the

defense of license, . . . and must produce 'some evidence' of

license at trial before the burden shifts to the Commonwealth to

prove the absence of the defendant's license beyond a reasonable

doubt."    Ibid.   See Commonwealth v. Gouse, 461 Mass. 787, 806

(2012); Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518

(2004).8   A limited exemption is available under G. L. c. 140,


     8
       In Humphries, the defendant was charged as a joint
venturer with a codefendant who possessed (and fired) the
firearm at issue. Id. at 763. In that circumstance, the court
concluded: "[T]he reasons that support allocating to a defendant
the burden to produce evidence of a firearms license, where the
defendant is charged with actual possession of a firearm without
a license, do not support allocating this burden to a defendant
charged as a joint venturer of unlicensed possession of a
firearm, where the firearm is actually possessed by a third
party. '[I]imposing the burden of production on a joint venturer
in these circumstances might be unfair because he would be in no
better position than the prosecutor to ascertain whether an FID
card [or license] had been issued to the person who allegedly
possessed the ammunition [or carried the firearm].'" Id. at
770, quoting from Gouse, supra at 807 n.20. Because the
existence of a license establishing a third party's lawful
authority to carry a firearm does not fall 'peculiarly within
the knowledge of the defendant on which he can fairly be
required to adduce supporting evidence,' Commonwealth v. Vives,
[447 Mass. 537, 540-541 (2006)], quoting Commonwealth v. Cabral,
                                                                   7


§ 131(m), which "offers a safe harbor from potential criminal

sanctions to certain gun owners whose licenses have expired."

Commonwealth v. Farley, 64 Mass. App. Ct. 854, 857 (2005).

    Under G. L. c. 140, § 131(i), as amended through St. 2004,

c. 150, § 11, "[a] license to carry or possess firearms shall be

valid, unless revoked or suspended, for a period of not more

than 6 years from the date of issue . . . except that if the

licensee applied for renewal before the license expired, the

license shall remain valid for a period of 90 days beyond the

stated expiration date on the license, unless the application

for renewal is denied [or other exceptions not here relevant

apply]".   However, under G. L. c. 140, § 131(m), inserted by St.

1998, c. 180, § 41, once the ninety-day "safe harbor" period

expires, the former licensee still is subject only to a civil

fine "and the provisions of section 10 of chapter 269 shall not


[443 Mass. 171, 179 (2005)], it does not constitute an
affirmative defense to joint venture possession of a firearm.
See generally Commonwealth v. Cabral, supra at 180.
Consequently, the affirmative defense of license provided by
G. L. c. 278, § 7, is inapplicable in the circumstances of this
case." Humphries, supra at 770.

     The defendant, quoting from Cabral, supra at 180, argues
that we should extend this reasoning to his situation, on the
ground that "the existence of an expired firearms license and
the applicability of the exemption is not something 'peculiarly
within the knowledge of the defendant.'" We are not persuaded
that the analogy applies. As the Commonwealth argues, the
circumstances of the 1998 expiration were within the defendant's
knowledge -- he not only filed affidavits about it, he produced
the expired licenses, and he was in the best position to say
whether he had applied to renew his license and been denied.
                                                                     8


apply."   On the other hand, the statute provides an exception to

that provision if:

     "(i) such license has been revoked or suspended, unless
     such revocation or suspension was caused by failure to give
     notice of change of address as required under this section;
     (ii) revocation or suspension of such license is pending,
     unless such revocation or suspension was caused by failure
     to give notice of a change of address as required under
     this section; or (iii) an application for renewal of such
     license has been denied" (emphasis supplied).

Ibid.

     The first issue here is who had the burden of production

under all of the circumstances of this case, and what that

burden entailed.     During the Commonwealth's case-in-chief, the

defendant, while cross-examining Ball, introduced evidence of,

inter alia, the defendant's firearm license history

"indicat[ing] that he had a license to carry a firearm that was

issued in 1993 and expired in 1998."    There was no evidence that

the defendant had applied for a license and been denied.     At the

close of the Commonwealth's case, the defendant apparently filed

a motion for a directed verdict of not guilty.     The record does

not indicate what the judge heard from the defendant in support

of his motion.9




     9
       The trial transcript indicates only that defense counsel
told the judge that he had "a motion," that the parties were
heard "at sidebar," and that the "[e]ntire discussion at sidebar
[was] completely inaudible . . ., sidebar microphone not turned
on."
                                                                   9


    If it were the defendant's burden to produce some evidence

that he qualified for the G. L. c. 140, § 131(m), civil

sanction, rather than the penalties provided by G. L. c. 269,

§ 10, he did not meet it.   On the other hand, if, as the

defendant argues, production of his expired license satisfied

his burden of production and shifted the burden of proof to the

Commonwealth, the motion for a required finding should have been

allowed.   We are satisfied that this court's holding in

Commonwealth v. Farley, supra at 862, provides the answer:     "the

burden was on the defendant to present sufficient evidence to

contest the presumed fact that he had no justification for his

lack of license" (emphasis supplied).   The expired license

itself, without some evidence that the defendant had never been

denied a new license, was therefore insufficient.

    During the defendant's case, the defendant testified not

only that he had an expired license but also that he had never

applied to renew the license; that he had never "receive[d]

notice of a denial of an application"; and that his license had

"[n]ever" "been revoked or suspended at any point in time."

This evidence satisfied the defendant's burden of production.

See id. at 863.   ("Viewed favorably to the defendant, this

evidence was sufficient to raise the affirmative defense and

thereby to shift to the Commonwealth the burden of establishing

beyond a reasonable doubt that the defense did not exist").
                                                                  10


     On cross-examination, the prosecutor read from the

defendant's earlier affidavit, filed in support of his motion to

dismiss, which stated that the defendant was "qualified to be

licensed to carry a firearm and [had] previously been issued

licenses up to November 14th '98 when the chief of the Winthrop

Police Department unlawfully and arbitrarily denied the renewal

of [his] license."10   The defendant agreed that he had signed the

affidavits and that they represented his understanding at the

time that he signed them, but he went on to say that "there was

a misunderstanding of [his] interpretation of what was told to

[him]."

     Nevertheless, at that point, the defendant had agreed that

he had filed affidavits swearing that his application for a

renewal of his firearms license had been denied.   As a result,

those prior affidavits properly were considered as substantive

evidence, admissible as prior admissions of an opposing party.11


     10
       The prosecutor also read from a second affidavit, wherein
the defendant stated, "I am qualified to be licensed to carry a
firearm and was also eligible on November 14th '98 when the
chief of the Winthrop Police Department utilized unlawful and
arbitrary criteria in denying the renewal of my license."
     11
       Defense counsel objected when the prosecutor first
mentioned the affidavits, but did not explain to the judge the
basis for his objection. See Mass. G. Evid. § 103(a)(1) (2014).
Nor did he object further to the use of the affidavits, except
once, when the prosecutor asked the defendant whether his trial
testimony was different from the affidavits, and defense counsel
stated, "I'd object to the characterization, Judge. It speaks
for itself." It does not appear from the record before this
                                                                    11


See Smith v. Palmer, 60 Mass. 513, 520-521 (1850) ("The

admissions of a party are not open to the same objection which

belongs to parole evidence from other sources.      A party's own

statements and admissions are, in all cases, admissible in

evidence against him, though such statements and admissions may

involve what must necessarily be contained in some writing");

Mass. G. Evid. §§ 801(d)(2)(A), 1007 (2014).      Despite the

defendant's efforts to explain the contradictory affidavits, the

issue thereafter was one for the jury.12     We see no error.

     2.     Rebuttal testimony.   The defendant next argues that the

Commonwealth should not have been permitted to offer rebuttal

evidence.    In the defendant's view, that evidence did not

respond to his evidence, but, instead, provided the Commonwealth


court that the defendant ever requested an instruction limiting
the use of the affidavits to impeachment. See id. at § 105.
     12
       In rebuttal, the Commonwealth called Jason Guida,
director of the Firearms Records Bureau. Guida testified that
the records of his agency showed only that the defendant had two
expired licenses, the most recent expiring in 1998. He also
stated that the records were incomplete, particularly regarding
events that occurred prior to 2004, when the Bureau undertook to
maintain licensing information indefinitely. Licensing
authorities, including police departments, were "only required
to maintain licensing information for six years." Guida also
testified that, while the Bureau attempts to update its records
when older, paper records are discovered, "it was a paper
process and there were times when files were not transmitted to
[his] office and entered into . . . [what he] call[ed] the
Legacy Database." Guida testified, "[I]n this case as you're
describing, if the chief or licensing officer told the
individual that he is denied but did not issue a denial letter
and send it to the Firearms Records Bureau, [the Bureau] would
not have a record of it."
                                                                      12


with an opportunity to supplement what should have been

presented in its case-in-chief.     This argument also fails.    It

is premised on the defendant's earlier argument that it was the

Commonwealth's burden to produce evidence in its case-in-chief

that the defendant was not shielded from the criminal

consequences of G. L. c. 269, § 10, by the exception provided by

G. L. c. 140, § 131(m).     As noted, we rejected that argument,

concluding that the defendant had the burden of producing

evidence that he faced only the civil penalties described in

§ 131(m).     Once he did so, the Commonwealth properly was given

an opportunity to rebut that evidence.     See Commonwealth v.

Howell, 49 Mass. App. Ct. 42, 50-51 (2000) ("The trial judge had

broad discretion to allow the Commonwealth to introduce evidence

that rebutted the defendant’s theory of defense").

    3.      Closing argument; prosecutor's use of inconsistent

statements.     The defendant also challenges the prosecutor's use

during closing argument of his prior inconsistent statements.

We see no error.     "The rule of evidence is well settled that if

a witness either upon his direct or cross-examination testifies

to a fact which is relevant to the issue on trial the adverse

party, for the purpose of impeaching his testimony, may show

that the witness has made previous inconsistent or conflicting

statements, either by eliciting such statements upon cross-

examination of the witness himself, or proving them by other
                                                                      13


witnesses."    Commonwealth v. Parent, 465 Mass. 395, 399-400

(2013), quoting from Robinson v. Old Colony St. Ry., 189 Mass.

594, 596 (1905).     See Mass. G. Evid. § 613(a)(2).   In addition,

as discussed supra, once the defendant adopted during his cross-

examination his statements made in earlier affidavits, they

became admissible substantively as admissions of a party

opponent.

    4.      Jury instructions.   The defendant also argues that the

judge improperly instructed the jury on the defendant’s

affirmative defense of licensure and that giving a consciousness

of guilt instruction was inappropriate.      "We review jury

instructions with regard to the Commonwealth's burden of proof

in a criminal case to determine whether the instructions, taken

as a whole, make clear the Commonwealth's burden to prove each

element of the crime beyond a reasonable doubt."       Commonwealth

v. Hoose, 467 Mass. 395, 412 (2014).

    a.      Affirmative defense instruction.   As to the affirmative

defense, the judge instructed the jury:

         "The statute exempts a defendant from criminal
    punishment who had, in effect, a license to carry a firearm
    issued at the time of his arrest. Section 131(m) of
    Chapter 140 exempts a defendant from criminal penalties and
    instead imposes a civil penalty when certain conditions are
    met. This exemption is intended to exempt from the
    imposition of criminal sanctions, those who[se] licenses
    became invalid inadvertently but who would otherwise not be
    disqualified from holding a valid license.
                                                                   14


          "The defendant is entitled to the criminal exemption
     if his license to carry was expired and he had not sought
     renewal of the license and he had not been notified of any
     revocation or suspension of the license or denial of a
     renewal application. As fact finders, you must determine
     from all of the credible evidence . . . whether the
     defendant had, in effect, a license to carry firearms under
     General Laws 140 and if he did, whether the Commonwealth --
     and this is the additional element that they must prove
     with regard to the two offense[s] before the Court, whether
     the Commonwealth has disproved beyond a reasonable doubt
     that this exemption applies to the defendant. Once
     sufficient evidence of the defense is presented, it is the
     Commonwealth's burden to establish beyond a reasonable
     doubt that the defense does not exist."

     The defendant did not object to the substance of the

instruction.13    On appeal, he argues primarily that the

"instruction placed the determination as to the defendant's

meeting his burden of production, a legal issue already ruled

upon by the court, back in the jury's hands for its

consideration without any advice as to how to make that

determination."    We disagree.   While the burden of production

     13
       After the judge's instructions, the "[e]ntire discussion
at sidebar [was] inaudible . . ., sidebar microphone not turned
on."   At the earlier charge conference, which was lengthy,
whatever objections the defendant had did not emerge, apart from
an objection to the use of the word "inadvertently." On appeal,
the defendant argues that "[t]he introduction of the term
'inadvertent' in the instructions without explanation also could
have confused the jury." The word "inadvertently," as the
Commonwealth notes, is taken from Farley, 64 Mass. App. Ct.
at 858 ("It is apparent from the language of G. L. c. 140,
§ 131(m), and the firearms licensing scheme as a whole,
particularly when considered in light of legislation that was
enacted within the same time frame, that the Legislature
intended to exempt from the imposition of criminal sanctions
those whose licenses became invalid inadvertently, but who would
otherwise not be disqualified from holding a valid license").
We see no error.
                                                                     15


was, indeed, a legal issue for the judge, the question whether

the Commonwealth had met its burden of disproving the

defendant's affirmative defense was for the jury, as the judge

properly instructed.

    In addition, use of the expression "[o]nce sufficient

evidence of the defense is presented" was not error.     The words

did not imply that the evidence must come from the defendant, or

that it was his burden to produce evidence of his defense.       Cf.

Commonwealth v. Colantonio, 31 Mass. App. Ct. 299, 308 (1991)

("[T]he charge as a whole conveyed to the jury that the burden

remained with the Commonwealth throughout to prove beyond a

reasonable doubt that the defendant did not [qualify for the

G. L. c. 140, § 131(m) exception]").

    b.    Consciousness of guilt instruction.   The defendant also

challenges the consciousness of guilt instruction, as he did at

trial.   The basis for the argument appears to be that there was

no evidence from which an inference of consciousness of guilt

could reasonably be drawn.   A consciousness of guilt instruction

may be given where "there is an 'inference of guilt that may be

drawn from evidence of flight, concealment, or similar acts,'

such as false statements to the police, destruction or

concealment of evidence, or bribing or threatening a witness."

Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting

from Commonwealth v. Toney, 385 Mass. 575, 584 (1982).     "To
                                                                     16


determine whether a consciousness of guilt instruction is

warranted, a judge need only assess the relevancy of the

evidence."     Commonwealth v. Morris, 465 Mass. 733, 738 (2013).

     Here, Ball testified that, before he came to a complete

stop, the defendant slowly traveled another 500 feet while Ball

observed the defendant's arm and shoulder moving up and down in

an apparent attempt to cover something behind the passenger's

seat.     In addition, in response to Ball's inquiry about whether

he had any weapons, the defendant said only that he had a knife,

and not that he had the gun he knew was in the tool bag behind

the seat.     This evidence permitted the prosecutor to argue, as

she did, that the defendant knew when he was stopped that he was

not authorized to possess a firearm.      There was no error.14

     5.     Motion for new trial.   We review the denial of a motion

for new trial "only to determine whether there has been a

significant error of law or other abuse of discretion."

     14
       The defendant also argues that permitting Ball's
testimony relating to gang activity, his description of the
defendant's "furtive gestures," and also prior intelligence
regarding the defendant's firearm license status was prejudicial
error. These claims are without merit. With regard to "gang
activity," Ball testified only that he was assigned to the gang
unit as part of establishing his experience and training. He
said nothing about the defendant participating in any gang
activity. In addition, Ball never stated that the defendant
made furtive gestures prior to coming to a stop, but merely
testified as to his observations of the defendant's shoulder and
arm moving up and down in an effort to cover something behind
the seat. Finally, Ball's testimony that he knew that the
defendant did not have a valid firearm license was stricken and
the jurors were told to disregard it. There was no error.
                                                                    17


Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).     See

Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).       "A

motion for new trial 'is addressed to the sound discretion of

the trial judge, and . . . will not be reversed unless it is

manifestly unjust, or unless the trial was infected with

prejudicial constitutional error.'"     Acevedo, supra, quoting

from Commonwealth v. Tennison, 440 Mass. 553, 566 (2003).     "A

reviewing court extends special deference to the action of a

motion judge who was also the trial judge."     Commonwealth v.

Rosario, 460 Mass. 181, 195 (2011), quoting from Grace, supra.

After review, we are satisfied that the trial judge did not

abuse her broad discretion in denying the defendant's motion for

a new trial.15

                                      Judgment affirmed.

                                      Order denying final corrected
                                        motion for new trial
                                        affirmed.




     15
       We have carefully considered the remaining issues raised
in the defendant's brief and find them to be without merit.
