Commonwealth v. Byung-Jin Kang
AC 15-P-1731
| Mass. App. Ct. | Mar 16, 2017Background
- Defendant Byung-jin Kang was charged and convicted under G. L. c. 269, § 10(a) and § 10(n) for carrying a firearm without a license (and loaded under § 10(n)) after a roadside altercation where another driver seized a small silver revolver from him.
- Police recovered the loaded revolver from the pavement; ballistic testing later showed it was capable of firing.
- Kang admitted possession and knowledge that the gun was loaded but argued the Commonwealth failed to prove operability chain of custody and challenged qualifications of the test-firing officer.
- Kang sought to assert the affirmative defense that the gun was an antique (manufactured prior to 1900) and therefore exempt from licensure, relying on his purchase from an online vendor and his claimed belief the gun was pre-1898.
- The trial judge excluded Kang’s testimony about his subjective belief that the gun was an antique but allowed testimony about buying the gun from a section of the website labeled “Pre-1898.”
- The judge refused the defendant’s requested jury instruction on the antique-firearm exemption; the defendant appealed.
Issues
| Issue | Commonwealth's Argument | Kang's Argument | Held |
|---|---|---|---|
| Whether the defendant could testify that he believed the firearm was an antique (relevance of his subjective belief) | Belief irrelevant to mens rea; §10 requires only knowledge of carrying a firearm; no statutory affirmative defense for honest mistaken belief | Testimony about his belief and purchase intent were relevant to raise the antique exemption defense | Court: Excluding the defendant’s subjective belief testimony was proper because personal belief is irrelevant to the mens rea and not an element of the statutory exemption |
| Whether the defendant was entitled to a jury instruction on the antique-firearm exemption (whether he produced sufficient evidence to raise the defense) | Defendant failed to meet burden of production; offered only uncorroborated hearsay (website labeling/title) and no reliable provenance, expert, or corroborating evidence | Website listing, the gun’s appearance, and his testimony about purchasing from the “pre-1898” section sufficed to raise a jury question | Court: Denial of the instruction was proper—defendant did not produce sufficient evidence to raise the affirmative defense; bare hearsay labeling without indicia of reliability is inadequate |
Key Cases Cited
- Commonwealth v. Jefferson, 461 Mass. 821 (Mass. 2012) (defines burden to produce evidence that firearm was manufactured before 1900 for antique exemption)
- Commonwealth v. Jackson, 369 Mass. 904 (Mass. 1976) (mens rea for §10 requires knowledge of carrying a firearm)
- Commonwealth v. Kingston, 46 Mass. App. Ct. 444 (Mass. App. Ct. 1999) (court decides whether an affirmative defense has been properly raised; burden-of-production discussion)
- Commonwealth v. Monico, 373 Mass. 298 (Mass. 1977) (a defendant is entitled to an instruction if any view of evidence supports the defense)
- Commonwealth v. Pike, 428 Mass. 393 (Mass. 1998) (resolve reasonable inferences in favor of defendant when assessing sufficiency to raise a defense)
- Commonwealth v. Humphries, 465 Mass. 762 (Mass. 2013) (distinguishes situations where burden of production may differ when third-party coventurer possesses the firearm)