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SJC-13852
COMMONWEALTH vs. JOSE M. SHAW.
Plymouth. February 4, 2026. - July 29, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Firearms. Evidence, Authentication, Court record, Prior
conviction. District Court, Clerk-Magistrate. Clerk of
Court. Practice, Criminal, Prior conviction.
Indictments found and returned in the Superior Court Department on January 13, 2023.
The cases were tried before William F. Sullivan, J.
After review by the Appeals Court, 105 Mass. App. Ct. 680 (2025), the Supreme Judicial Court granted leave to obtain further appellate review.
Haylie Jacobson, Committee for Public Counsel Services, for the defendant.
Arne Hantson, Assistant District Attorney, for the Commonwealth.
BUDD, C.J. This case asks us to determine whether a copy
of a District Court docket sheet, introduced at trial as
evidence of the defendant's prior conviction of a drug offense,
2
was properly authenticated where the requirements for selfauthentication were not met. For the reasons discussed infra,
we conclude that the document was not properly authenticated.
However, we further conclude that the error did not create a
substantial risk of a miscarriage of justice in the
circumstances of this case. We therefore affirm the defendant's
conviction under G. L. c. 269, § 10G (a).
Factual and procedural background. After a jury trial, the
defendant, Jose Shaw, was convicted of four counts of firearmrelated offenses: carrying a firearm without a license, in
violation of G. L. c. 269, § 10 (a); possession of ammunition
without a firearm identification card, in violation of G. L.
c. 269, § 10 (h); carrying a loaded firearm without a license,
in violation of G. L. c. 269, § 10 (n); and discharge of a
firearm within 500 feet of a dwelling, in violation of G. L.
c. 269, § 12E.1 The defendant was also indicted with sentence
enhancement charges under G. L. c. 269, § 10 (d),2 and G. L.
1 The defendant was also charged with negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a).
2 Pursuant to G. L. c. 269, § 10 (d), a defendant with a prior conviction of a firearm-related offense under G. L. c. 269, § 10 (a), (b), or (c), is subject to imprisonment in the State prison for not less than five years nor more than seven years. A third subsequent offense results in imprisonment for not less than seven years nor more than ten years, and a fourth results in imprisonment for not less than ten years nor more than fifteen years. The defendant was charged with unlawfully
3
c. 269, § 10G (b),3 based on his prior criminal record.
Following a jury-waived trial on the sentence enhancement
charges, the defendant was found guilty of G. L. c. 269,
§ 10 (d), based on a guilty plea to a firearm-related offense in
1997.4 He was also found guilty of G. L. c. 269, § 10G (a), a
lesser included offense of § 10G (b),5 based on a 2002 drug
conviction. The Commonwealth had sought to prove that drug
conviction principally through a nine-page copy of the District
Court docket labeled "Docket sheets 0115CR008785." Each page of
the copy bore an embossed seal of the District Court, and the
first five pages bore what appears to be a stamped signature of
the clerk-magistrate, but none of the pages contained a written
certification that the copy was true, correct, or had been
carrying a firearm, second offense.
3 Pursuant to G. L. c. 269, § 10G (b), a defendant who is convicted of a firearm offense under § 10 (a), (c), or (h), and has two prior convictions of either violent crimes or serious drug offenses shall be punished by a State prison sentence of no less than ten years, nor more than fifteen years.
4 As the defendant could only be sentenced under one of the two enhancement statutes, see Commonwealth v. Richardson, 469 Mass. 248, 254 (2014), the judge's decision to sentence the defendant under § 10G (a) "effectively acted as a dismissal" of the § 10 (d) enhancement. Commonwealth v. Boyd, 474 Mass. 99, 101 (2016).
5 Pursuant to G. L. c. 269, § 10G (a), a defendant who is convicted of a firearm offense under § 10 (a) and has a prior conviction of a violent crime or a serious drug offense shall receive a State prison sentence of no less than three years nor more than fifteen years.
4
compared to the original. The Commonwealth also introduced
testimony from a police officer concerning the 2002 drug case,
but that testimony did not independently establish the
conviction. The defendant was subsequently sentenced to from
five to seven years in State prison as a result of the § 10G (a)
sentence enhancement.6 The Appeals Court affirmed the
convictions. Commonwealth v. Shaw, 105 Mass. App. Ct. 680, 690
(2025).
We granted the defendant's application for further
appellate review on the limited question whether the copy of the
docket sheet was properly authenticated and, if not, whether its
erroneous admission created a substantial risk of a miscarriage
of justice.
Discussion. 1. Authentication. "It is axiomatic that
documentary evidence must be authentic." United States v.
Blanchard, 867 F.3d 1, 5 (2017), cert. denied, 585 U.S. 1023
(2018). Before being admitted at trial, documentary evidence
must be properly authenticated based on "a foundation sufficient
to support a finding that the item in question is what its
6 The defendant was also sentenced to ninety days in a house of correction for discharge of a firearm within 500 feet of a dwelling (to be served concurrently with the State prison sentence), two years in a house of correction for negligent operation of a motor vehicle (also to be served concurrently with the State prison sentence), and two years of probation from and after the custodial sentences for carrying a loaded firearm without a license.
5
proponent claims it to be." Commonwealth v. Siny Van Tran, 460
Mass. 535, 546 (2011), citing Mass. G. Evid. § 901(a) (2011).
Rule 40 (a) of the Massachusetts Rules of Criminal Procedure,
which outlines the requirements for authenticating official
records in criminal proceedings, states in relevant part that
"[a]n official record kept within the Commonwealth . . . may be
evidenced by an official publication thereof or by a copy
attested by the officer having legal custody of the record, or
by his deputy." Mass. R. Crim. P. 40 (a) (1), 378 Mass. 917
(1979).
At issue is whether the copy of the docket sheet bearing
the embossed seal of the District Court and a stamped signature
on the relevant pages, but without any indication of
"attestation," meets the requirements for a self-authenticating
document under rule 40 (a).7 We have previously explained that
"[a]n 'attested' copy of a document is one which has been
examined and compared with the original, with a certificate or
7 The defendant also invokes G. L. c. 233, § 76, which provides that to be self-authenticating, copies of documents "in any department of the commonwealth or of any city or town" should be authenticated "by the attestation of the officer who has charge" of the documents. We do not need to decide whether the District Court is a "department of the commonwealth" to which the provision applies. The requirement for attestation under G. L. c. 233, § 76, is the same as that under rule 40 (a) (1); the document thus fails to meet the attestation requirements of either.
6
memorandum of its correctness, signed by the persons who have
examined it." Commonwealth v. Deramo, 436 Mass. 40, 47 (2002),
quoting Black's Law Dictionary 127–128 (6th ed. 1990).
Attestation by an official with custody of the official record
provides assurance that "the copy submitted is accurate and
genuine as compared to the original" (quotation and citation
omitted). Deramo, supra. To "qualify as an 'attested' copy,"
therefore, "there must be a written and signed certification
that [the record] is a correct copy" by the custodian (quotation
and citation omitted). Id. In other words, an attestation
certifies accuracy whereas a seal identifies the source of the
document.
The docket introduced in evidence included no attestation
that it was a correct copy. The seal of the District Court and
the stamped signature –- assuming it belonged to the clerk -- at
most signaled that the records came from the clerk, who is the
"proper custodian of the records" of a particular court.
Portland Maine Publ. Co. v. Eastern Tractors Co., 289 Mass. 13,
15 (1935). They are not a substitute for an attestation, which,
as mentioned supra, indicates that a "comparison has been made
between the copy and the original record" (citation omitted).
Deramo, 436 Mass. at 48. Nothing in this court's precedent
suggests otherwise. See, e.g., Commonwealth v. Rondoni, 333
Mass. 384, 385-386 (1955) (copy of conviction record properly
7
authenticated with typed signature of clerk and certificate of
document as "a true copy of the judgment" on official stationery
with court seal); Portland Maine Publ. Co., supra (copy of
record with "seal of the court attached to [clerk's]
certificate" admissible [citation omitted]); Willock v. Wilson,
178 Mass. 68, 74 (1901) (same). See also Commonwealth v.
Babcock, 100 Mass. App. Ct. 527, 531 (2021) (adequate
attestation where each page was affixed with stamp "averring
that it [was] 'A TRUE COPY ATTEST'" and clerk's stamped
signature).8
2. Prejudice. Because the defendant did not object to the
admission of the copy at the time of trial, we review that error
for a substantial risk of a miscarriage of justice.
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). "An error
creates a substantial risk of a miscarriage of justice unless
[this court is] persuaded that it did not 'materially influence'
the guilty [finding]" (citation and alteration omitted). Id.
In other words, this court is required to determine whether it
has "a serious doubt whether the result of the trial might have
been different had the error not been made" (quotation and
8 The attestation requirement for self-authenticating copies of public records does not displace other methods of authentication by providing "evidence sufficient to support that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2026). Here, however, no such evidence was provided.
8
citation omitted). Commonwealth v. Azar, 435 Mass. 675, 687
(2002), S.C., 444 Mass. 72 (2005). In making this
determination, we consider, among other things, "the strength of
the Commonwealth's case against the defendant," "the nature of
the error," and "whether the error is sufficiently significant
in the context of the trial to make plausible an inference that
the . . . result might have been otherwise but for the error"
(citation, quotation, and alteration omitted). Alphas, supra.
The admission of the unauthenticated document at issue here
did not create a substantial risk of a miscarriage of justice.
We acknowledge the force of the defendant's principal point that
the docket was the Commonwealth's only evidence of the 2002
predicate drug conviction, which the officer's testimony
concerning the arrest did not independently prove. Had the
docket been excluded and had the Commonwealth offered nothing
else, the evidence would not have established the § 10G (a)
predicate. The issue, then, is whether this unpreserved
authentication error, viewed in the full context of the trial,
leaves us with serious doubt that the judge's finding would have
been different had the error not been made. It does not.
First, there was no suggestion at trial that the copy was
inauthentic or inaccurate, nor does the defendant make that
argument now. Indeed, the document carried with it many indicia
of reliability. Its appearance was identical to that of a
9
District Court docket sheet with which a trial judge, the fact
finder in this case, would be readily familiar. In addition,
each page of the copy bore a seal of the District Court, and the
first five pages -- including the page showing the sentenceenhancing drug conviction -- also bore what appeared to be the
clerk-magistrate's signature. Notably, the defendant never
claimed that he was not convicted of the crime that the document
was introduced to prove. To the contrary, trial counsel
referred to the docket sheet copy as evidence of the defendant's
District Court conviction during the trial.
Further, the unobjected-to deficiency in authentication
itself would not have materially influenced the fact finder;
that is, the lack of attestation did not make it more likely
that the judge would convict the defendant. And the defendant
has made no showing that, had the defect been identified at
trial, the Commonwealth could not have authenticated the copy
through testimony or other evidence, or introduced a properly
attested copy of the docket sheet. The record gives us no basis
to think that such authentication would have been unavailable.
Cf. Commonwealth v. Housen, 458 Mass. 702, 712-713 (2011)
(counsel did not err by failing to object to admission of
photographs not authenticated by medical examiner "absent a
showing that no witness could have authenticated the
10
photographs").9 In sum, we do not seriously doubt "whether the
result of the trial might have been different" absent the error
in this case. Azar, 435 Mass. at 687.
Conclusion. The defendant's conviction under G. L. c. 269,
§ 10G (a), is affirmed.
So ordered.
9 The defendant argues that the admission of the unattestedto copy of the docket sheet created a substantial risk of a miscarriage of justice because he could not have been found guilty of the G. L. c. 269, § 10G (a), enhancement without the document. We disagree. It is true that in determining whether an error created a substantial risk of a miscarriage of justice, appellate courts often assess the strength of the Commonwealth's case without considering the erroneously admitted evidence. See Alphas, 430 Mass. at 13. We do so, however, to ensure that inadmissible evidence does not "weigh against the defendant." Id. at 13 & n.6. As explained supra, that is not an issue in this case, where the evidence would have been admissible but for an error that the Commonwealth readily could have fixed had it been raised at trial. The strength of the case without the improperly admitted evidence is therefore not determinative here. Cf. Commonwealth v. Foley, 445 Mass. 1001, 1002-1003 (2005), cert. denied, 548 U.S. 927 (2006) (inadmissible testimonial evidence in violation of confrontation clause created substantial risk of miscarriage of justice because "nothing [else] in the record support[ed] allegations").