SALEM — A judge yesterday decided that prosecutors couldn't prove Jose Morales was "carrying" an unlicensed rifle as he climbed naked out the fifth-floor window of his Washington Street apartment one afternoon in 2006.
Morales, 24, of Salem, was found guilty of illegally possessing ammunition. However, a decision by prosecutors to charge him with the more serious offense of illegally carrying a gun, rather than simply illegally possessing one, may have backfired. Salem District Court Judge Dunbar Livingston ruled after a bench trial that prosecutors hadn't proven their case because they hadn't proven the legal elements for a charge of carrying.
On the afternoon of Nov. 17, 2006, Salem police, investigating a drive-by shooting on Bridge Street, got a warrant and went to Morales' apartment at 260 Washington St.
They eventually used a battering ram to get inside and found Morales hanging from the bedroom window, his hands grabbing a sill and his feet perched on the frame of what was once a porch.
Officers outside saw two guns — a rifle with a folding stock and a small handgun — fall to the ground. In a police report, a detective said the guns were thrown out the window before Morales climbed through.
But two other detectives who were outside the building testified during the trial that Morales was holding the guns as he climbed out.
Defense lawyer Ray Buso suggested that "the officers' memories are somewhat flexible," and accused them of altering their testimony to meet the required legal elements for a carrying charge.
Prosecutor Elizabeth Satelmajer argued that even if the guns were simply dropped out the window, Morales intended to retrieve them, and that the act of bringing the guns outside onto the porch frame amounted to bringing them outside his home.
Livingston disagreed, saying that the porch, in whatever condition it was in, is part of the apartment and that prosecutors had not met the required elements for a carrying charge. That charge would have required a two-year minimum mandatory term.
The charge of possessing the guns is covered by a separate law and is not considered a "lesser included" offense of carrying, the judge said.
The judge did sentence Morales to 18 months in jail on the ammunition charge, but suspended the sentence for two years and made it a condition of Morales' probation that he not have any guns or ammunition.
A second firearms charge resulted in a not guilty finding because the gun, when tested at the state police crime lab, could not be fired — something officers suggested outside court could have been due to it being dropped from a fifth-floor window.
Two other drug charges were dropped by prosecutors, one of them because the complaint mistakenly identified one of the drugs police say they found as cocaine, when it was allegedly OxyContin.
