Commonwealth v. Alexander Benitez Morales.

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

24-P-730

COMMONWEALTH

vs.

ALEXANDER BENITEZ MORALES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of carrying a firearm without a license, in

violation of G. L. c. 269, § 10 (a).1 On appeal, the defendant

argues that the trial judge erred in admitting a recording of

his interview with the police in evidence because it was

substantially more prejudicial than probative and because his

statements were not voluntary. The defendant also contends that

there was insufficient evidence to prove that he constructively

possessed the firearm. We affirm.

1On the day of trial, the Commonwealth dismissed one count
of assault and battery on a person sixty years of age or older
or a person with a disability, G. L. c. 265, § 13K (a 1/2) and
one count of assault and battery with a dangerous weapon, G. L.
c. 265, § 15A (b).
Background. "Because the defendant challenges the

sufficiency of the evidence presented, we summarize the facts

the jury could have found in the light most favorable to the

Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431

(2015). On January 31, 2023, Fitchburg police officers

responded to an apartment for a well-being check. Upon entering

the apartment, the officers opened a bedroom door and saw the

defendant and a woman sleeping in a bed. During a search of the

kitchen, to which the owner of the apartment consented, the

officers noticed that one of the drop ceiling tiles had been

pushed up and was not sitting flush like the other tiles. An

officer removed that tile and found a firearm.

After waking up the defendant, the officers arrested him

and brought him to the police station. A detective spoke to the

defendant in English. The defendant said he understood the

detective. The detective provided the defendant his Miranda

rights in English and then questioned him. The defendant "had a

very thick accent, sometimes hard to understand." The detective

testified that the defendant believed the gun found at the

apartment was broken, and "he was basically working at getting

another one from where he got that one from." The defendant did

not believe the gun worked because it was "stuck back." A

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portion of the recorded interview was admitted into evidence and

played for the jury.2

At trial, testifying through an interpreter, the defendant

stated that he learned about the gun from the police, who kept

saying it was his. He said that he never hid the gun in the

kitchen and never touched the gun. He testified, "I never said

that I touched a pistol in that home, nothing, until they told

me they found it. And they were saying that he said that it was

mine. That was something I didn't know." The defendant also

said he had taken three medications the day the officers came to

the apartment and does not remember much about the interview.3

Discussion. 1. Admission of defendant's recorded

interview. Prior to trial, the defendant moved to exclude the

recorded interview and prevent testimony regarding his

statements to the detective. Defense counsel argued that the

recorded statement was "more prejudicial than relevant,"

confused the issues, and mislead the jury since the defendant

was a native Spanish speaker who did not speak English very

2 The entire recorded interview was approximately fifty
minutes long. It was edited to a three-minute-long portion.
Subsequent references to the "recorded interview" are to the
admitted the three minute clip.

3 It is unclear from the record whether the defendant took
the medications the night before the police arrived at the
residence or the same day. Regardless, our analysis remains the
same.

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well. The trial judge watched the recorded interview and

stated, "It's very difficult to understand" and "I really

couldn't make out half of what [the defendant] said." She also

stated, "there's some limited conversation I could make out with

respect to the firearm, him saying it was, you know, broken and

there were other people there, but it was very disjointed and

very difficult to say -- to hear." Ultimately, the judge

stated, "I don't find it particularly prejudicial," and ruled

that the recorded interview was admissible.

Because the defendant objected to the admission of his

recorded statements, we review to determine whether there was

prejudicial error. See Commonwealth v. Grady, 474 Mass. 715,

724-725 (2016) (objection preserved by pretrial motion in

limine). "This requires a two-part analysis: (1) was there

error; and (2) if so, was that error prejudicial." Commonwealth

v. Cruz, 445 Mass. 589, 591 (2005).

"We review a judge's evidentiary rulings for an abuse of

discretion." Commonwealth v. Andre, 484 Mass. 403, 414 (2020).

"Whether evidence is relevant in any particular instance, and

whether the probative value of relevant evidence is outweighed

by its prejudicial effect, are questions within the sound

discretion of the judge." Commonwealth v. Dunn, 407 Mass. 798,

807 (1990). Generally, relevant evidence is subject to

exclusion "if its probative value is substantially outweighed by

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a danger of," among other things, "unfair prejudice, confusing

the issues, [or] misleading the jury." Mass. G. Evid. § 403

(2024). A trial judge's determination of these issues will not

be disturbed except for palpable error. See Commonwealth v.

Young, 382 Mass. 448, 462-463 (1981).

The record demonstrates that the trial judge carefully

balanced all the relevant factors. She considered the probative

value of the defendant's statements and the potential for

confusing the jury based on the difficulty of understanding the

defendant's words. The trial judge watched the recorded

interview, as did we. Although the defendant's words are

difficult to understand, he is not incoherent. It is clear that

the defendant told the detective that he believed the firearm

was broken, and that he was working on getting another one from

where he got that one from. The defendant also said that he

believed the gun did not work because it was "stuck back." It

is indisputable that the recorded interview was highly relevant.

We conclude that the judge did not abuse her discretion in

admitting the defendant's recorded statements. To the contrary,

she carefully considered the issue and was "entitled to balance

the conflicting interests and to conclude, as a matter of

judicial discretion" that the jury was entitled to view the

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recorded interview. Commonwealth v. Haywood, 377 Mass. 755, 763

(1979). Thus, there was no error in its admission.4

2. Voluntariness of defendant's waiver of Miranda. For

the first time on appeal, the defendant argues that his recorded

statements should not have been admitted because he did not make

a knowing and voluntary waiver of his Miranda rights. We agree

with the Commonwealth's assertion that because the defendant did

not raise the Miranda issue in the trial court, the defendant's

claim is waived and there is an inadequate record for us to

review the issue. See Mass. R. Crim. P. 13 (a) (2), as

appearing in 442 Mass. 1516 (2004). Furthermore, based on the

record before us, there is insufficient evidence to consider the

defendant's claim for a substantial risk of a miscarriage of

justice. See Commonwealth v. McFarlane, 102 Mass. App. Ct. 264,

268 (2023) (defendant waived issue of voluntariness of admission

to police where he did not file motion to suppress and did not

object when statement was admitted at trial).

The defendant's claim that he did not understand English

and therefore, could not have validly waived his Miranda rights

is speculative, as there is no evidence that the defendant did

not understand the Miranda warnings. To the contrary, the

4 Similarly, the detective's testimony about the recorded
interview was relevant and not unduly prejudicial. We see no
error in its admission either.

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detective testified that he asked the defendant "if he was

comfortable and understand what I was saying," to which the

defendant affirmed that he did. Simply utilizing an interpreter

at trial does not render the defendant's Miranda waiver

involuntary. See Commonwealth v. Iglesias, 426 Mass. 574, 577

(1998) (fact that interpreter was provided for defendant "does

not establish that the defendant did not understand English

sufficiently for a valid Miranda waiver").

Similarly, the defendant claims he was under the influence

of drugs at the time of his statements to the detective;

however, the transcript does not support this contention. The

only information in the record concerning the defendant's use of

medication is his testimony that he did "not recall too much" of

his conversation with the detective and "they woke me up, they

took me over there and I was still under the medication."

Accordingly, there is not sufficient evidence for us to reach

such a conclusion. See Commonwealth v. Woods, 419 Mass. 366,

371 (1995) (appellant's burden "to ensure that an adequate

record exists for an appellate court to evaluate").

3. Voluntariness of defendant's statements. In his reply

brief, the defendant argues that voluntariness was a live issue

at trial and therefore, the judge was required to consider

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whether the defendant's admissions were voluntary sua sponte.5

We disagree.

In order to use a defendant's statements against him or her

at trial, they must have been made voluntarily. See

Commonwealth v. Brown, 449 Mass. 747, 765 (2007), citing

Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997). "If the

defendant does not raise the issue of voluntariness, the judge

has a sua sponte obligation to conduct a voir dire only if the

voluntariness of the statements is a live issue such that there

is evidence of a substantial claim of involuntariness"

(quotation and citation omitted). Brown, supra. See

Commonwealth v. Gallett, 481 Mass. 662, 686 (2019), quoting

Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007) (for question

of voluntariness to be considered live issue, "substantial

evidence of involuntariness [must be] produced"). If

voluntariness "is not a 'live issue' at trial, there is no

obligation for the judge either to conduct a voir dire, or to

instruct the jury on the humane practice rule." Commonwealth v.

Pavao, 46 Mass. App. Ct. 271, 274 (1999).

It was not until the defendant testified on cross

examination that there was any evidence that the defendant's

5 Issues raised for the first time in an appellant's reply
brief are not properly before us. See Allen v. Allen, 86 Mass.
App. Ct. 295, 302 n.11 (2014). Even if these issues were
properly before us, we find no error in the judge's conclusions.

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statement may have been involuntary. The defendant explained

that he takes three medications at nighttime and when the

officers woke him up on the day of the incident, he was "still

under the medication." Also, the video of the interview, which

the judge watched, does not make voluntariness a live issue.

See Kirwan, 448 Mass. at 318 (voluntariness not live issue where

defendant claimed he was intoxicated, but no evidence of his

intoxication was presented at trial). In these circumstances,

we do not find that the evidence created a "substantial claim of

involuntariness." Commonwealth v. Stroyny, 435 Mass. 635, 646

(2002).

Even if the trial judge had erred in not considering the

voluntariness of the defendant's statements, there was no

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Richards, 485 Mass. 896, 914 (2020). Here, any

evidence of involuntariness was minimal; it did not reach the

magnitude of involuntariness as was found, for example, to

create a substantial likelihood of a miscarriage of justice in

Commonwealth v. Bohigian. 486 Mass. 209, 220 (2020) (error for

judge to not make determination regarding voluntariness when

defendant "wasn't fine" during questioning where he had visible

head injury and showed signs of concussive head trauma). Nor

does the recorded interview show any coercive techniques or

force by the police.

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Given these circumstances, we conclude that there is no

serious risk that the judge would have excluded the recorded

interview if the issue had been brought to her attention or that

the jury, had it received a humane practice instruction, "would

have concluded that the Commonwealth failed to meet its burden

of proving that the defendant's statements to police were

voluntary and therefore disregarded them." Richards, 485 Mass.

at 914.

4. Sufficiency of evidence. We review the sufficiency of

the evidence to determine "whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt" (quotation omitted).

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The

defendant argues that there was insufficient evidence that he

had constructive possession of the firearm. Constructive

possession requires proof that the defendant had "knowledge

coupled with the ability and intention to exercise dominion and

control" over the firearm (citation omitted). Commonwealth v.

Brzezinski, 405 Mass. 401, 409 (1989). "A defendant's knowledge

or intent is a matter of fact, which is often not susceptible of

proof by direct evidence, so resort is frequently made to proof

by inference from all the facts and circumstances developed at

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the trial" (quotation and citation omitted). Commonwealth v.

Summers, 93 Mass. App. Ct. 260, 262 (2018).

Here, the defendant admitted that he often stayed in the

apartment. He also described the condition of the firearm. The

defendant told the detective that he believed the firearm was

broken because it was "stuck back" and that he was working on

getting another one from where he got that one from. We

conclude that this evidence was sufficient to prove that the

defendant had knowledge of the firearm and the ability and

intent to exercise dominion and control over it.

Judgment affirmed.

By the Court (Vuono,
Brennan & D'Angelo, JJ.6),

Clerk

Entered: March 27, 2025.

6 The panelists are listed in order of seniority.

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