Following a jury trial in Superior Court, the defendant was convicted of violating G. L. c. 269, § 10(6), by carrying a dangerous weapon (a knife).
Background. On September 5, 2009, Boston police officers, who were investigating a stabbing that had occurred earlier that day, arrested the defendant at his residence. After the arrest, the defendant acknowledged that he owned a knife, while denying that he had used the knife in any stabbing. The police “froze[]” the scene, obtained a search warrant, and retrieved the knife from the defendant’s bedroom. The knife, which was admitted in evidence, is a folding knife that has a blade that locks into place. Further characteristics of the knife are reserved for later discussion.
For the stabbing, the defendant was charged with aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(c). That charge was the centerpiece of the trial. Thus, for example, both closing arguments focused exclusively on whether it was the defendant who had stabbed the victim. The defendant was also charged with violating G. L. c. 269, § 10(6), for carrying the knife on his person. The jury acquitted the defendant of the aggravated assault and battery charge, but convicted him of carrying a dangerous weapon.
Discussion. Section 10(6) of G. L. c. 269 makes it illegal for anyone to carry certain kinds of knives.
The Commonwealth has never contended that the defendant’s knife has a spring or other mechanism that — when activated — automatically sets the blade into a locked position. However, for the first time on appeal, it points out that there are “thumb studs” that protrude from either side of the knife’s blade. According to the Commonwealth, those protrusions allow someone holding the knife in one hand to open the blade quickly into a locked position with a mere flick of his thumb. The Commonwealth maintains that, by serving that end, the thumb studs are prohibited “device[s] that enable[] the blade to be drawn at a locked position.” The Commonwealth further argues that knives equipped with thumb studs can be drawn into fighting mode as quickly as other “quick release” knives expressly
The defendant counters that his knife is an ordinary hunting and camping knife of the sort available for purchase throughout the Commonwealth.
In the current appeal, we need not resolve whether “thumb studs” on the blade of a folding knife could be “device[sj” outlawed by G. L. c. 269, § 10(6). That is because even if the Commonwealth’s interpretation of the statute is correct, there still would be insufficient trial evidence in the case before us. Although the Commonwealth presented evidence that the knife had a locking mechanism, the jury heard no testimony whatsoever about the ease with which the thumb studs allowed the blade to be opened into a locked position. To fill the gap, the Com
In sum, because the evidence was not sufficient to establish that the knife was equipped with a “device” that enabled its blade “to be drawn at a locked position,” the defendant’s conviction cannot stand.
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
Section 10(6), as amended through St. 1986, c. 581, § 1, provides in relevant part:
“Whoever . . . carries on his person . . . any stiletto, dagger or a device or case which enables a knife with a locking blade to be drawn at a locked position, any ballistic knife, or any knife with a detachable blade capable of being propelled by any mechanism, dirk knife, any knife having a double-edged blade, or a switch knife, or any knife having an automatic spring release device by which the blade is released*535 from the handle, having a blade of over one and one-half inches . . . shall be punished by imprisonment.”
The prohibition does not apply where permission to carry such a knife is “provided by law.” G. L. c. 269, § 10(6), as appearing in St. 1974, c. 649, § 2. It is undisputed that no such exception applies here.
The jury instructions were based almost verbatim on this statutory language.
The defendant moved for a required finding of not guilty at the close of the Commonwealth’s case, albeit on the ground that there was insufficient evidence that the defendant had carried the knife outside his home (a ground he has now abandoned). After the judge denied that motion and the jury rendered their verdict, the defendant asked the judge to vacate the verdict, arguing for the first time that the Commonwealth had produced insufficient evidence that the knife was subject to the statute. In denying the posttrial motion, the judge ruled that the knife’s locking device was considered part of the handle, and that the handle itself was the “device or case” referred to in the statute. The Commonwealth makes no effort to defend this appeal on the grounds identified by the judge, and implicitly concedes that the mere presence of a locking mechanism is not enough to make the knife prohibited under the statute.
In Commonwealth v. Miller, we concluded that the knife at issue in that case was not covered by the statute in part because “[i]n contrast to other quick release knives enumerated by the statute, [the knife] does not open quickly or easily.” Id. at 696. The specific statutory language on which the Commonwealth relies in the current case was added in the immediate wake of Miller. See St. 1986, c. 581, § 1. The Commonwealth argues that the amendment was designed to ensure that a broad array of “quick draw” knives was outlawed.
According to a statement that the defendant made to police, he bought the knife in a downtown Boston store that sells “Kung Fu videos.” There was no other trial evidence regarding the availability of such knives. In his posttrial motion, see note 4, supra, the defendant appended a number of documents purporting to show that such knives are broadly sold as hunting or camping knives.
We need not address the propriety of the jury’s testing the knife in the manner the Commonwealth suggests.
We need not reach the defendant’s other claims of error.