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

22-P-1087

COMMONWEALTH

vs.

GILSON TEIXEIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the defendant appeals 

from convictions of firearms and other offenses.1 He argues that 

all the indictments should have been dismissed, contending that

the Commonwealth recklessly violated an order of a Boston 

Municipal Court (BMC) judge that the firearms not be tested 

without a defense expert present. The defendant further argues

that the trial judge committed reversible error by failing to 

instruct the jury, as required in Commonwealth v. Guardado, 491 

Mass. 666, 690 (Guardado I), S.C., 493 Mass. 1 (2023), cert. 

1 The indictments at issue in dockets numbered 1684CR00937 

and 1784CR00226 were tried together and the defendant's separate 

appeals have been consolidated here under the present number.
2

denied, 144 S. Ct. 2683 (2024), that the defendant's lack of a 

firearms license was an element of the crime that the 

Commonwealth was required to prove. The parties agree that two 

of the defendant's convictions are duplicative. We reverse the 

defendant's conviction on the charge of possession of ammunition 

without an FID card. We affirm all other convictions.

Background. Just after 9 P.M. on October 25, 2016, 

surveillance cameras on a home in the Dorchester section of 

Boston captured video footage that depicted three assailants

walking up to two victims and firing sixteen shots, resulting in

muzzle flashes. One of the shooters was wearing a dark coat 

with a fur lined hood. Meanwhile, a green sedan, later 

identified as a Nissan Maxima, circled the block twice, on one 

of those occasions driving the wrong way on a one way street.2

Nearby, Boston police Detective Jean Moses Acloque was 

conducting a drug investigation in an unmarked vehicle. He 

heard gunshots, saw the Nissan drive the wrong way on the one

way street, and then saw a person get into its rear passenger 

seat. Detective Acloque followed the Nissan for about onequarter mile, never losing sight of it.

2 That video recording exhibit is not included in the 

appellate record. The description of what it depicts is taken 

from trial testimony and the unobjected-to representations of 

both counsel in opening statement and closing argument.
3

Police stopped the Nissan. The defendant was in the rear 

passenger seat, wearing a jacket with a fur lined hood. He was 

bending forward toward the floor of the Nissan, where at his 

feet police found a Smith & Wesson nine millimeter handgun with 

no ammunition in it. In the rear middle seat was Belarmino 

Monteiro, and in Monteiro's pocket was a Ruger nine millimeter 

handgun loaded with two rounds of ammunition and bearing

Monteiro's fingerprints on the magazine. At the shooting scene, 

police found sixteen nine millimeter cartridge casings 

consistent with having been ejected from those two handguns.3

On October 26, 2016, a complaint (firearms complaint) 

issued in the BMC charging the defendant with firearms offenses. 

Although no transcript of the defendant's arraignment is 

included in the record before us, the parties agree that at that 

arraignment the defendant's codefendant, Monteiro, filed a 

motion to inspect the firearms; the BMC judge verbally ordered 

that the Commonwealth refrain from testing the firearms until 

one or more of the defendants had the opportunity to arrange for 

a defense expert to be present.4 The prosecution failed to 

3 Under the passenger seat in the Nissan's rear driver's

side was a Colt .25 caliber handgun, which did not match any

cartridge casings at the scene. The trial judge allowed a 

required finding of not guilty as to an indictment alleging that 

the defendant unlawfully carried that firearm.

4 At arraignment, the defendant's case was scheduled for a 

November 17, 2016 probable cause hearing. See Mass. R. Crim. 
4

communicate the judge's order to the Boston police, and on 

November 7, in violation of the order and unbeknownst to defense 

counsel, a police ballistician tested the firearms.5 On November 

14, the BMC judge endorsed Monteiro's motion to inspect or test 

evidence, ordering that Monteiro's "expert may be present at the 

testing of any . . . alleged firearm(s)."

After learning of the ballistics testing conducted outside 

the presence of the defense expert, on December 5, 2016, the

defendant filed in the BMC a motion for sanctions, arguing that 

the Commonwealth had failed to comply with the BMC judge's order 

at arraignment requiring the Commonwealth to refrain from 

testing the firearms, and that this failure resulted in the 

destruction of exculpatory evidence. The defendant sought 

exclusion of any evidence of those firearms and moved for an 

evidentiary hearing in the BMC and to sequester witnesses at it. 

An evidentiary hearing was scheduled in the BMC for February 8, 

2017.

P. 3 (f), as appearing in 442 Mass. 1502 (2004). The 

Commonwealth has not argued that it was required to expedite 

testing of the firearms to prepare for that hearing, and so we 

do not consider that issue.

5 No documentation of the testing is included in the 

appellate record before us. At oral argument, counsel for both 

parties agreed that the firearms testing occurred on November 7, 

2016, as stated by a codefendant's counsel at a Superior Court 

hearing.
5

On December 12, 2016, a complaint (assault crimes

complaint) issued in the BMC charging the defendant with 

additional offenses including assault by means of a dangerous 

weapon, discharge of a firearm within 500 feet of a dwelling, 

and wanton destruction of property. On December 14, a grand 

jury returned indictments (assault crimes indictments) against 

the defendant alleging those same offenses as well as two counts 

of armed assault with intent to murder, for which jurisdiction 

lies in Superior Court. After the defendant was arraigned in 

Superior Court on the assault crimes indictments, the assault 

crimes complaint was dismissed.

On January 13, 2017, a motion hearing was held in the BMC.6 

On the same day, the Commonwealth entered a nolle prosequi of 

the firearms complaint. As a result, the BMC sanctions hearing 

scheduled for February 8 was cancelled.

On March 29, 2017, a grand jury returned additional 

indictments (firearms indictments) against the defendant. As at 

issue here, those included indictments alleging that the 

defendant unlawfully possessed two firearms (the Smith & Wesson 

and Ruger handguns), carried a loaded firearm while unlicensed,

and unlawfully possessed ammunition.

6 No transcript of that hearing is in the appellate record.
6

In Superior Court, the defendant filed two motions to 

dismiss the indictments.7 In the first motion the defendant 

argued that the indictments should be dismissed as a sanction 

for the Commonwealth's violation of the BMC judge's order that 

the firearms not be tested without a defense expert present. In 

the second motion, the defendant argued that the indictments 

should be dismissed as a sanction for the Commonwealth's 

improper indictment of him, arguing that it improperly obtained 

the assault crimes indictments and then entered a nolle prosequi 

of the firearms complaint, without having yet obtained the 

firearms indictments, to avoid the sanctions hearing scheduled 

in the BMC for February 8, 2017. A Superior Court judge (motion 

judge) denied both motions to dismiss.

After a trial before another judge (trial judge), with 

respect to the indictments charged under docket number 

1784CR0026, a jury convicted the defendant of two counts of 

unlawfully carrying a firearm, G. L. c. 269, § 10 (a); carrying 

a loaded firearm without a license, G. L. c. 269, § 10 (n); and 

possessing ammunition without an FID card, G. L. c. 269, 

7 Those motions were filed only in the case pertaining to 

the firearms indictments, but in them the defendant sought to 

exclude any evidence of the firearms, which presumably would 

have affected the Commonwealth's proof as to the assault crimes

indictments. For the purposes of our analysis, we assume that 

the motion judge's rulings on the motions to dismiss pertained 

to both the firearms and assault crimes indictments.
7

§ 10 (h). With respect to the indictments charged under docket 

number 1684CR00937, the jury convicted the defendant of assault 

by means of a dangerous weapon, G. L. c. 265, § 15B (b); 

discharge of a firearm within 500 feet of a building, G. L. 

c. 269, § 12E; and three counts of wanton destruction of 

property, G. L. c. 266, § 127.8 This appeal followed.

Discussion. 1. Motions to dismiss. a. As sanction for 

violation of BMC order. On appeal, the defendant argues that 

the prosecution was reckless, not negligent, in permitting 

police to test the firearms in violation of the BMC judge's 

order. As evidence of the Commonwealth's recklessness, the 

defendant points to Commonwealth v. Sanford, 460 Mass. 441, 450

(2011), in which the same district attorney's office and police 

department violated a similar discovery order.

After an evidentiary hearing at which two prosecutors and 

an administrative assistant testified, the motion judge found 

that "at worst, the individual staff members of the Suffolk 

County District Attorney's Office were negligent." The motion 

judge did not make specific findings of fact as to what each of 

8 The defendant was acquitted of the two counts of armed 

assault with intent to murder, one count of assault by means of 

a dangerous weapon, and one count of wanton destruction of 

property.
8

those witnesses did,9 and the exhibits introduced at the hearing 

are not included in the appellate record.10 The motion judge 

reserved ruling on whether the defendant was prejudiced by the 

Commonwealth's negligence until the firearms were tested by a 

defense expert. At the next hearing date, a codefendant's 

counsel reported that a defense expert had tested the firearms 

and they were operable, and the motion judge ruled that, absent 

any showing that the police ballistician had altered the 

firearms to render them operable, any prejudice was speculative.

In contrast to the motion judge's clear finding that the 

employees of the prosecution were "at worst . . . negligent," in 

9 The motion judge heard testimony that the prosecutor who 

was present at the BMC arraignment sent an e-mail to several 

prosecutors in the office's gang unit referring the case for 

review for possible indictment and informing them of the BMC 

judge's ruling. Sixteen months before, a policy had been 

circulated by e-mail to all employees of the district attorney's 

office stating that it was the responsibility of the prosecutor 

present at arraignment to notify police of any court order not 

to test evidence; the BMC prosecutor had received the e-mail but 

was not aware of the policy. Neither the BMC prosecutor nor the 

gang unit prosecutors notified police of the BMC judge's order 

not to test the firearms. Instead, an administrative assistant 

in the gang unit sent to the Boston police a request that the 

firearms be examined for latent prints and ballistics testing. 

On October 31, 2016, the Boston police e-mailed the 

administrative assistant that the request had been received and 

the report would be forwarded upon completion.

10 From the transcript, it appears that those exhibits 

included the BMC prosecutor's e-mail to the gang unit, the 

administrative assistant's request for testing, and the police 

department's response.
9

Sanford, "[t]he judge's findings [were] unclear on the question 

of the level of the Commonwealth's culpability, and specifically 

whether it acted in bad faith or in reckless disregard of the 

court's order." 460 Mass. at 450. Based on the incomplete 

appellate record before us, we cannot say that the motion judge 

abused his discretion in finding that the Commonwealth's conduct 

was negligent and not reckless. See Commonwealth v. Seino, 479 

Mass. 463, 477 n.21 (2018) (defendant failed to establish that 

Commonwealth acted recklessly in failing to preserve police 

notes or photographs). Contrast Sanford, 460 Mass. at 451

(remanding for evidentiary hearing on "the likely exculpatory 

nature of the unobserved first test firing or the 

[Commonwealth's] level of culpability").

Moreover, the defendant has not shown prejudice. As 

mentioned above, the video footage of the shooting depicted 

muzzle flashes. The defendant contends that if a defense expert 

had been present at the original testing, the expert might have 

seen the police ballistician adjust the firearms to render them 

operable. But, notwithstanding the difficulty -- or 

impossibility -- of demonstrating what happened at an event from 

which the defense was excluded, the case law requires that where 

the Commonwealth's action was merely negligent, the defendant 

demonstrate "a reasonable possibility, based on concrete 

evidence rather than a fertile imagination, that access to the 
10

[material] would have produced evidence favorable to his cause." 

Sanford, 460 Mass. at 447 (quotation omitted). See Commonwealth

v. Williams, 455 Mass. 706, 718 (2010). The motion judge 

invited the defendant's counsel to consult with the defense 

ballistics expert and then move for sanctions during trial for 

the discovery violation, which might include the trial judge's 

excluding the firearms or giving a jury instruction. The 

defense did not do so.11 At trial, on cross-examination of the 

police ballistician, defense counsel did not ask if his test

firing of the firearms was in violation of the BMC judge's

order. Nor did defense counsel ask if the ballistician had 

altered the handguns to render them operable.

b. As sanction for improper indictment. The defendant 

argues that the motion judge should have dismissed the 

indictments as a sanction for what he contends was the 

Commonwealth's improper indictment of him on the firearms 

offenses. He argues that, after obtaining the assault crimes 

indictments and entering a nolle prosequi of the firearms 

complaint, it was improper for the Commonwealth to obtain the 

firearms indictments.

11 In fact, defense counsel told the trial judge, "Obviously 

[the ballistician] should be able to testify that the firearms 

are in fact firearms."
11

In its nolle prosequi of the firearms complaint, the 

Commonwealth stated its reason as: "The defendant has been 

recently indicted for more serious crimes, occurring on the same 

date and using the same firearms. . . . Therefore, it is not in 

the interest of justice to prosecute in two different courts." 

The defendant argues that that language in the nolle prosequi 

amounted to a promise by the Commonwealth "not to pursue" the 

firearms charges, and therefore the Commonwealth's subsequently 

obtaining the firearms indictments was improper. We are not 

persuaded.

In denying the motion to dismiss for improper indictment, 

the motion judge stated that the firearms offenses were "tied in 

inextricably" to the armed assault with intent to murder 

indictments, over which the BMC did not have jurisdiction, and 

thus the Commonwealth's nolle prosequi of the firearms complaint 

was "inevitable." The motion judge also found that the 

defendant was not prejudiced by the cancellation of the 

sanctions hearing in the BMC, because a sanctions hearing was 

held in Superior Court. The motion judge denied the defendant's 

request to call the prosecutor who signed the nolle prosequi to 

testify about his reasons for doing so, noting that doing so 

would raise "separation of powers issues."

"Generally speaking, the Commonwealth has absolute 

authority to enter a nolle prosequi at any point before 
12

sentencing, see Mass. R. Crim. P. 16 (a), 378 Mass. 885 (1979)" 

(quotation omitted). Commonwealth v. Boyd, 474 Mass. 99, 103 

(2016). "[T]he decision to nol pros a criminal case is within 

the discretion of the executive branch of government, free from 

judicial intervention." Commonwealth v. Gordon, 410 Mass. 498, 

500 (1991). When entering a nolle prosequi, a prosecutor must 

provide an explanation for the entry. Commonwealth v. Denehy, 

466 Mass. 723, 734 n.15 (2014). It did so here. "For all that 

appears, the decision to proceed by indictment was a proper 

exercise of the prosecutor's discretion and was made 

independently of any desire to intrude on the prerogatives of 

the [BMC] judge." Commonwealth v. Hinterleitner, 391 Mass. 679, 

682-683 (1984). Contrast Commonwealth v. Benton, 356 Mass. 447, 

448 (1969) (after prosecutor entered nolle prosequi as part of 

plea agreement, subsequent indictment for identical offenses 

improper).

We discern no prejudicial error or abuse of discretion in 

the motion judge's denial of both motions to dismiss.

2. Lack of Guardado I instruction. The defendant also 

argues that a substantial risk of a miscarriage of justice arose 

when, at trial in 2021, the judge did not instruct the jury that 

the Commonwealth had to prove that the defendant lacked a valid 

firearms license, as required by Guardado I, 491 Mass. at 690. 

The Commonwealth concedes error but argues that the error was 
13

harmless beyond a reasonable doubt. See Commonwealth v. Souza, 

492 Mass. 615, 638 (2023).

The indictments for unlawful possession of firearms and for 

carrying a loaded firearm each alleged that the defendant did 

not "hav[e] in effect a license to carry firearms." During 

trial, a police officer testified without objection that neither 

the defendant nor the other four occupants of the Nissan were 

licensed to carry firearms.12

During his jury instructions, the trial judge referred to 

the firearms offenses as "possession of a firearm without a 

valid license to carry firearms and possession of a loaded 

firearm without a valid license to carry firearms." The 

defendant did not object to the instructions or ask the trial 

judge to explain the licensing statutes, G. L. c. 140, 

§§ 131 & 131F, which were cited in the two indictments for 

unlawful possession of a firearm. As recited in open court, the 

jury's verdicts on those two indictments specified that the 

defendant had "no license."

12 In addition, the transcript documents that the police 

bodycam video footage played for the jury recorded an officer 

asking if someone had a license to carry firearms. That bodycam 

video footage was admitted in evidence, but is not in the 

appellate record, and so we cannot ascertain if those questions 

were directed to the defendant or if he responded.
14

In those circumstances, assuming that after Guardado I, 491 

Mass. at 686, the defendant was entitled to a more fulsome 

instruction on the Commonwealth's burden to prove that he did 

not have a firearms license, the absence of such an instruction 

was harmless beyond a reasonable doubt. See Commonwealth v. 

Bookman, 492 Mass. 396, 401 (2023).

3. Duplicative convictions. The Commonwealth and the 

defendant agree that the defendant's convictions for carrying a 

loaded firearm, G. L. c. 269, § 10 (n), and unlawful possession 

of ammunition, G. L. c. 269, § 10 (h), both pertaining to the 

Ruger, are duplicative.

Conclusion. The conviction of unlawful possession of 

ammunition without an FID card (count five, docket number 

1783CR00226) is reversed, the verdict is set aside, and judgment 

on that count only shall enter for the defendant. All other 

judgments on both dockets are affirmed.

So ordered.

By the Court (Rubin, Grant & 

Hershfang, JJ.13),

Clerk

Entered: September 9, 2024.

13 The panelists are listed in order of seniority.