38 Mass. App. Ct. 582 | Mass. App. Ct. | 1995
The defendant appeals from his conviction by a District Court jury of unlawful possession of a firearm, G. L. c. 269, § 10(a),
The jury could have found that the defendant, on June 15, 1992, in response to noise or activity on or near a house and lot at 18 Weld Avenue, in the Jamaica Plain section of Boston, discharged a firearm (a .22 caliber handgun) into the air.
The applicable statute, G. L. c. 269, § 10(c), as amended by St. 1990, c. 511, § 2, effective January 2, 1991, provides in pertinent part:
“Whoever . . . knowingly has in his possession ... a firearm . . . without. . .: (1) being present in or on his residence . . . shall be punished. . . .”
The relevant circumstance is that the 1991 amendment substituted “knowingly has in his possession” for “carries on his person” in the first sentence and inserted the “being present in or on his residence” exemption. While the pre-1991 version of § 10(a) did not contain a similar exemption, the Supreme Judicial Court interpreted the statute as exempting the keeping or carrying of a firearm within a residence or place of business. Commonwealth v. Seay, 376 Mass. 735, 741-743 (1978). In Commonwealth v. Dunphy, supra at 459,
“If the evidence at a new trial shows that the defendant was within the limits of his property or residence at the time of the alleged offense, he must be found not guilty of the crime charged. The terms ‘property’ and ‘residence’ shall retain their common law meanings and denote those areas, including outside areas, over which the defendant enjoys exclusive control.”
The judge, following Dunphy, instructed the jury that the defendant was entitled to the benefit of the exemption if he possessed the firearm within a property or residence under his exclusive control. The defendant argues that the statute operates to exempt unlicensed possession within the “curtilage” or boundaries of the possessor’s residence and asserts that the judge erred, as matter of law, in patterning his instruction on case law interpreting the pre-1991 version of G. L. c. 269, § 10(a).
We presume that the Legislature, in enacting the 1991 amendment, was aware of the Dunphy decision and “merely put in statutory form what already had been declared by judicial exposition.” Wenz v. Pastene, 209 Mass. 359, 362 (1911). Killam v. March, 316 Mass. 646, 651 (1944). See Condon v. Haitsma, 325 Mass. 371, 373 (1950); 2A Singer, Sutherland Statutory Construction § 45.12, at 62 (5th ed. rev. 1992). In the absence of any statutory definition of the words “in or on his residence” in the applicable statute, we conclude that the case law interpretation controls. Accordingly, the judge’s instructions based on Dunphy were not error.
The defendant also claims the instructions were erroneous regarding the issue of exclusive control.
“The issue ... is whether the back yard [is] a common area or an area over which the defendant retained exclusive control. . . . whether [the house] was a multiple dwelling of more than one household with the yard existing for the common use of the tenants or whether it was one residence at which more than one person lived where the defendant and others had exclusive control over the back yard . . . whether or not the defendant resided at this location and whether or not he resided in one household over which he and the household members had exclusive control or whether it was a multiple dwelling unit of more than one household.”
This aspect of the instruction sufficiently set before the jury the analysis called for by the evidence and the law to determine whether the defendant resided there, and whether he was in exclusive control of that part of the property from which he claimed he fired the shots.
Other issues. The Commonwealth’s evidence placing the defendant in the street or sidewalk at the time he discharged the firearm amply supports the denial of the defendant’s motion for a required finding of not guilty. Commonwealth v.
Judgment affirmed.
Order denying motion for new trial affirmed.
The defendant does not appeal from his conviction on two counts of assault by means of a dangerous weapon (G. L. c. 265, § 15B). He also
The defendant was not then licensed or otherwise authorized to carry or possess a firearm under G. L. c. 269, § 10(a)(2), (3), or (4).
Essentially, the defendant asks that we conclude, as matter of law, that he had exclusive control of the backyard, since he claims it is within the “curtilage.” Exclusive control, however, appears to be a factual determination in any event. See Commonwealth v. Morales, 14 Mass. App. Ct. 1034
Our courts have discussed areas over which one may have exclusive control in terms of whether stairways, hallways, a porch, and yards are common areas in the context of multiple dwelling buildings. See Commonwealth v. Dunphy, supra, and cases cited. We perceive nothing in the cases discussing curtilage which suggests that the open areas within a curtilage should be given the same legal exemption, in this case, as the residence or dwelling itself. See Commonwealth v. Murphy, supra at 436. Cf. Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971) (“In a modern urban multi-family apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control. ... In such an apartment house, a tenant’s ‘dwelling’ cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control”).