After a jury trial in the Central Division of the Boston Municipal Court Department, the defendants, Leslie Burton-Brown and Liquarry Jefferson, were convicted of 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); and possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n).
Background. Because the defendants challenge the sufficiency of the evidence, we describe in detail the evidence at trial viewed in the light most favorable to the Commonwealth. Commonwealth v. Cordle,
Once Trooper Cameron and Sergeant Tarantino stepped out of the cruiser, the vehicle raced away, the tires “screeching.” The officers returned to their cmiser and gave chase. Driving at a high rate of speed, the vehicle made a right turn onto Vinson Street, going up onto the curb and nearly striking a building at the intersection. Vinson Street is a one-way street and the vehiсle was moving in the wrong direction. The vehicle did not stop or slow at the intersection, and it continued on to a street named Wellesley Park. Without slowing, the vehicle then took a wide left turn onto Melville Avenue. As the vehicle turned, the cmiser was a few “car lengths” behind, and the pursuing police officers
Trooper Cameron left the cruiser, removed the driver (Burton-Brown) from the vehicle, put him on the ground, and handcuffed him. Cameron told Burton-Brown that he was under arrest “because he ran from us.” Burton-Brown explained that he had “an open case” and fled because he was scared. When the trooper said he was under arrest just for motor vehicle violations, Burton-Brown’s demeanor changed: “He became cocky, kind of like laughing at me . . . .”
The other officers removed the front seat passenger (Jefferson) and the back seat passenger
Discussion. 1. Sufficiency of the evidence. The defendants moved for required findings of not guilty at the conclusion of the prosecution’s case under Mass. R. Crim. P. 25 (a),
In evaluating the sufficiency of evidence, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in
While we recognize the issue to be close, we conclude that the evidence was sufficient as a matter of law to support the jury’s finding that the defendants jointly and knowingly possessed the loaded revolver. While no recoverable fingerprints were found on the revolver and no one saw anyone throw the firearm from the vehicle during the chase, a jury reasonably could have inferred from the location of the firearm in the middle of the walkway that it had only recently landed there, because it was in such plain view that it would not have remained there for long without being reported or removed. The jury reasonably could have inferred from the broken pieces of the handle found near the revolver that the firearm had hit the ground with enough force for the handlе to break into pieces, and that such force was consistent with it being thrown from a moving vehicle. The location of the revolver was also consistent with where it would have landed had it been thrown from the open front passenger’s side window of the vehicle at the moment when the police briefly lost sight of it as Burton-Brown made a wide left turn onto Melville Avenue. Because the police officers who retraced the path of the defendants’ flight saw no pedestrians or any other apparent source of the weapon, the jury reasonably could have inferred that the firearm had been thrown from the defendants’ vehicle during the brief moment in the chase when the vehicle could not be seen from the police cruiser. See, e.g., Commonwealth v. Duncan,
This circumstantial evidence must be considered with other evidence that reasonably permitted the inference that the defendants had thrown some type of contraband from the vehicle during the chase. A rational jury could infer that Burton-Brown sped away for a reason when the police first left their cruiser to approach the vehicle, and that the reason was to throw away contraband that Burton-Brown feared the police would find during a stop. See, e.g., Commonwealth v. Doucette,
Burton-Brown’s conduct during the traffic stop reasonably suggests that he had discarded contraband during the chase. A reasonable jury could find incredible his explanation that he fled the police because he had “an open case,” and could infer that he lied to the police to mask the true reason for his flight. His apparent relief at learning that his arrest was only for motor vehicle violations suggests that he feared something worse.
This evidence, viewed as a totality in the light most favorable to the Commonwealth, would permit a rational jury to conclude beyond a reasonable doubt that Burton-Brown knew that he had a firearm in the vehicle and that Jefferson threw it from the front right passenger window as the vehicle made the turn onto Melville Avenue. It would also permit a rational jury to conclude beyond a reasonable doubt that Burton-Brown and Jefferson knowingly had joint actual or constructive possession or control of the firearm in the vehicle. See Commonwealth v. Sann Than,
We also сonclude that the evidence is sufficient as a matter of law to support the jury’s finding that the revolver was a firearm as defined in G. L. c. 140, § 121, based on Detective Lydon’s expert testimony that, after a relatively slight repair with a pair of small pliers, he fired two rounds from the revolver. See Commonwealth v. Bartholomew,
Therefore, the evidence at trial was sufficient as a matter of law to support a conviction of 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 Qi)\ and possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n).
2. “Antique” firearm. The defendants claim that the motion
Immediately before trial, the prosecutor filed a motion in limine to exclude any evidence offered to show that the firearm was an antique, claiming that whether it was an antique was not material to any potential defense in the case. After the judge declared that a firearm manufactured in 1896 is not an antique under the firearm laws, the defendants argued that the date of manufacture of the firearm would assist the jury in evaluating the qualifications and training of the expert witnesses. The judge granted the Commonwealth’s motion, ruling that the word “antique” was not admissible to describe the firearm, but declared that testimony relating to the age and serial number of the firearm was admissible.
At trial, Detective Lydon testified that he did not know when the firearm was manufactured. Danas, the defendants’ firearm expert, testified, based on the serial number, that the firearm was manufactured in 1896 and was classified a “collectible gun.” When Jefferson’s attorney asked Danas if possession of collectible firearms required a license, the judge sustained the Commonwealth’s objection.
A firearm manufactured before 1900 is a “firearm” within the definition of G. L. c. 140, § 121, which defines a “[fjirearm” as “a pistol, revolver or other weaрon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.” However, § 121 also provides that the “provisions of [§§] 122 to 129D, inclusive, and [§§] 131, 131A, 131B
In allowing the motion in limine, the judge relied on Commonwealth v. Bibby,
Because of the judge’s ruling on the motion in limine, the defendants were denied the opportunity to raise this affirmative defense before the jury and argue that, if the Commonwealth failed to prove that the firearm was manufactured after 1899, the defendants should be found not guilty of the offenses predicated on the unlawful carrying of a firearm. The judge’s ruling also meant that the Commonwealth was not required to
Rule 14 (b) (3) of the Massachusetts Rules of Criminal Procedure, as appearing in
While firearms manufactured before 1900 are exempt from the licensing requirement in G. L. c. 140, § 131, a defendant may still be convicted of the unlawful possession of ammunition loaded in a firearm manufactured before 1900 if the defendant does not have a firearm identification card and the ammunition does not fall under some exemption. See, e.g., G. L. c. 269,
In the future, where a defendant charged with the unlawful carrying of a firearm in violation of § 10 (a) possesses evidence that the firearm was manufactured before 1900, the defendant shall provide the Commonwealth with pretrial notice of the affirmative defense of exemption as required by rule 14 (b) (3).
3. Remaining defense claims. Because we are reversing the firearms and ammunition convictions and remanding for a new trial, we briefly address the remaining defense claims where they may bar a new trial or may recur at a new trial.
a. Constitutional challenges. The defendants claim that the Massachusetts statutes governing the licensing of firearms are facially unconstitutional, violate their right to equal protection of law, and impermissibly impinge on their right “to keep and bear arms” under the Second Amendment to the United Statеs Constitution, as recently interpreted by the Supreme Court in McDonald v. Chicago,
Burton-Brown additionally challenges on due process grounds G. L. c. 278, § 7, which requires a defendant in a firearms case whose defense is that he had a license to carry or a firearm identification card to “prove the same.” The defendant claims that the statute “impermissibly shifts the burden upon the defendant to prove his innocence.” We addressed and rejected this
b. The judge’s preliminary instructions of law. The defendants claim that the judge erred by preliminarily instructing the jury as to the elements of the crimes charged before the opening statement without also instructing them on the definitions of a firearm, ammunition, and reasonable doubt; on the meaning of possession and knowledge under the law; and on their obligation to consider the evidence separately against each defendant. Where, as here, the judge correctly instructed the jury as to the elements of the crime and informed the jury that they would receive further instructions on the law at the conclusion of the case, the judge committed no error by saving the remaining instructions for the close of trial. See Commonwealth v. Cintron,
c. The prosecutor’s closing argument. The defendants contend that the prosecutor’s closing argument was improper because he told the jury:
“I submit to you that a handle isn’t going to shatterunless there’s some serious force when it hits the ground .... Is it unreasonable to think when the firearm gets thrown, there might be some pieces that get loose? Is it unreasonable to think when the firearm gets thrown, the handle is going to break off into several pieces? I suggest to you the answer to both of those questions is no.”
The defendants assert that, because no expert testified as to the amount of force that would be needed to break the handle of the firearm or affect its firing mechanism, these statements were unsupported by the evidence and suggested that the prosecutor had personal knowledge regarding the evidence that was not before the jury. Because the defendants did not object at trial, we review the alleged error for a substantial risk of a miscarriage of justice. Commonwealth v. Vasguez,
We conсlude that the argument was not improper and posed no risk of a miscarriage of justice. The prosecutor’s argument “was grounded in common sense, not expertise.” Commonwealth v. Siny Van Tran,
Conclusion. The defendants’ convictions of carrying a firearm without a license, possession of ammunition without a firearm identification card, and possession of a loaded firearm are reversed, the verdicts are set aside, and the cases are remanded for a new trial on these charges. Burton-Brown’s unappealed convictions of negligent operation of a motor vehicle and failure to stop for the police stand.
So ordered.
Notes
Leslie Burton-Brown was also convicted of negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a); and failure to stop for the police, in violation of G. L. c. 90, § 25. He was found “not responsible” for speeding, G. L. c. 90, § 17. Charges against each defendant of resisting arrest, in violation of G. L. c. 268, § 32B, were dismissed at the request of the Commonwealth.
Burton-Brown does not challenge his convictions of negligent operation of a motor vehicle and failure to stop for the police, so those convictions stand.
The back seat passenger is not a defendant in this case.
Trooper Cameron described the weather at the time of the stop as “your typical February night”; “[n]o snow, no rain, not bitterly cold or anything like that.”
The police, however, did not interview the resident until months later, so
On cross examination, Detective Lydon testified that a different Boston police firearm examiner had earlier test fired the weapon on March 17, 2009. The expended round from that test firing was admitted in evidence.
To be convicted of unlawful possession of ammunition, the defendant must know that he possessed ammunition. See Commonwealth v. Johnson, ante 44, 53 (2011); Instruction 7.620 of the Criminal Model Jury Instructions for Use in the District Court (2009). Where, as here, the firearm was a revolver located in a vehicle, a rational jury could infer that those who possessed the firearm knew that it was loaded with ammunition. See Commonwealth v. Elysee,
When the Attorney General offered his opinion in 1975, the relevant exemption in G. L. c. 140, § 121, as appearing in St. 1969, c. 799, § 1, applied to firearms manufactured before 1899. The Legislature in 1998 revised the statute so that the exemption applied to firearms manufactured before 1900. G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8.
Under the holding in Commonwealth v. Bibby,
Rule 14 (b) (3) of the Massachusetts Rules of Criminal Procedure, as appearing in