Com. v. Cassidy, SJC–12350

• Decision Date: 14 May 2018
• Docket Number: SJC–12350
• Citation: 479 Mass. 527,96 N.E.3d 691
• Parties: COMMONWEALTH v. John CASSIDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 527

96 N.E.3d 691

COMMONWEALTH

v.John CASSIDY.

SJC–12350

Supreme Judicial Court of Massachusetts, Bristol..

Argued January 5, 2018

Decided May 14, 2018

John E. Cassidy, pro se.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

David Rangaviz, Committee for Public Counsel Services, for Erickson Resende, amicus curiae, submitted a brief.

William Burns, pro se, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

GAZIANO, J.

The defendant lawfully purchased an AK–47–style pistol and a nine millimeter pistol in Texas and brought them with him when he moved to Massachusetts in August, 2010, to attend law school. At some point between that time and his March 11, 2011, arrest, the defendant was advised by a classmate that firearms must be registered in Massachusetts. See G. L. c. 140, §§ 129B, 131 ; G. L. c. 269, § 10 (a ). Although he obtained the forms necessary to register for a license to possess a firearm in Massachusetts, the defendant did not file them and did not obtain a license to carry or a firearm identification (FID) card; at trial, he testified that he could not afford to pay the registration and licensing fees. Under Massachusetts law, the nine millimeter pistol, which could hold twelve rounds of ammunition, fell within the definition of a large capacity weapon; such a weapon has separate licensing and registration requirements in the Commonwealth. See G. L. c. 269, § 10 (m ). The AK–47–style pistol met the Massachusetts definition of an assault weapon; possession of such weapons is heavily restricted in the Commonwealth.¹ See G. L. c. 140, §§ 121, 131M.

During a search of the defendant's apartment pursuant to a search warrant, police officers located the two pistols, four high capacity magazines, several boxes of ammunition, and a bag containing loose rounds of various types of ammunition in the defendant's bedroom. He was charged with unlawful possession of these items. The defendant did not dispute that the weapons were his or that they were operable firearms; in a recorded interview, portions of which were read to the jury, he told an investigating officer that he had legally purchased the weapons in Texas and had brought them with him when he moved to Massachusetts. The defendant also testified similarly at trial. A Superior Court jury convicted the defendant of unlawful possession of an assault weapon, G. L. c. 140, § 131M ; unlawful possession of four large capacity feeding devices, G. L. c. 269, § 10 (m ) ; unlawful possession of a large capacity firearm, G. L. c. 269, § 10 (m ) ; and unlawful possession of ammunition, G. L. c. 269, § 10 (h ).²

On appeal, the defendant contends that his convictions of possession of a large capacity firearm and large capacity feeding devices should be overturned because the Commonwealth failed to prove that he knew the firearm and feeding devices he possessed qualified as "large capacity," meaning that they were capable of holding more than ten rounds of ammunition. See G. L. c. 140, § 121. He argues also that Massachusetts firearms statutes are unconstitutionally vague and that they violate his right to bear arms under the Second Amendment to the United States Constitution and art. 17 of the Massachusetts Declaration of Rights; in addition, he contends similarly that the Commonwealth's interpretation of art. 17 to include a "collective" rather than an "individual" right likewise deprives him of his right to bear arms.

We conclude that, to sustain a conviction under G. L. c. 269, § 10 (m ), the Commonwealth must prove that a defendant either knew the firearm or feeding device met the legal definition of "large capacity" or knew it was capable of holding more than ten rounds of ammunition. Here, the judge adequately, if minimally, instructed the jury on the elements necessary to sustain a conviction, and a reasonable jury could have inferred that the defendant knew that the nine millimeter pistol and the magazines were capable of holding more than ten rounds of ammunition. We conclude also that the defendant has not shown a violation of his rights under the Second Amendment or art. 17 by any provision of G L. c. 269, § 10. Accordingly, we affirm the defendant's convictions.³

1. Background. We recite the evidence the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979).

The defendant drove from Texas to Massachusetts in August, 2010, to attend law school. He brought two legally obtained firearms and legally obtained magazines and ammunition with him and kept them in his bedroom in a two-bedroom apartment that he leased with another law student.

On March 2, 2011, Dartmouth police officers executed a search warrant for the defendant's apartment. The officers found a nine millimeter pistol under a pillow on the defendant's bed; while there was no round in the chamber and the safety was engaged, the pistol was loaded. In a suitcase in a bedroom closet, officers found an AK–47–style pistol with an empty magazine, two additional magazines—one loaded and one unloaded—that fit into that pistol, an extended magazine for the nine millimeter pistol, full boxes of ammunition, and a bag of loose ammunition.⁴ A tag on the suitcase and identification cards found in the bedroom indicated that it was the defendant's bedroom.

The officers crossed the street to the parking lot of the law school, where the defendant had been taken into custody. After waiving the Miranda rights, the defendant informed the officers that he had "an AK and a nine" in his bedroom that were "legit" in Texas but not yet registered in Massachusetts.

In a video recorded interview at the police station, the defendant again indicated that he had bought the two firearms in Texas and had transported them to Massachusetts in his vehicle when he drove to Massachusetts to attend law school in August, 2010. He said that he had grown up around guns, had purchased the nine millimeter pistol for recreational use, and had fired both firearms in Texas. He also told the detective that the AK–47–style pistol was not loaded, and that the nine millimeter pistol had three or four rounds in the magazine "[b]ut definitely it's not full so it's not going to wear the spring out on it." He said that, although he was not familiar with Massachusetts's firearms laws, he had learned from one of his law school classmates that he was required to register the firearms in Massachusetts. He obtained but did not file the registration forms, because he did not have enough money to pay the licensing fees.

The defendant was charged with unlawful possession of an assault weapon, G. L. c. 140, § 131M ;⁵ unlawful possession of four large capacity feeding devices, G. L. c. 269, § 10 (m ) ; unlawful possession of a large capacity firearm, G. L. c. 269, § 10 (m ) ; and unlawful possession of ammunition, G. L. c. 269, § 10 (h).⁶

At trial on the seven firearm-related charges, two Dartmouth police officers testified concerning the search of the defendant's apartment and their interviews with him. Additionally, the head armorer of the Dartmouth police department, who is in charge of the department's firearms, identified the firearms, magazines, and various types of ammunition, test fired the two pistols, and testified that the firearms and magazines were fully functional. He indicated that the three magazines for the AK–47–style pistol each could hold thirty rounds of ammunition, the nine millimeter pistol with its original magazine could hold twelve rounds, and the extended magazine for the nine millimeter pistol was an after-market magazine that was "much larger than the one that came with the gun" and could hold either fifteen or twenty rounds. Finally, he testified that an application for a license to carry or an FID card costs one hundred dollars. See G. L. c. 140, §§ 129B (9A), 131 (i ).

The defendant testified in his own defense. He said that the firearms were his, he had been hunting since he was eight years old, he purchased the firearms legally in Texas and brought them with him when he started law school, and he had not applied for a license or FID card after his arrival in Massachusetts.

The defendant was convicted of all of the firearms charges. The defendant initially sought relief before a single justice in the county court, pursuant to G. L. c. 211, § 3 ; that petition was denied without a hearing. The Appeals Court thereafter affirmed the defendant's convictions in a memorandum and order pursuant to its rule 1:28. We then granted the defendant's application for further appellate review.

2. Discussion. The defendant contends that his convictions under G. L. c. 269, § 10 (m ), should be overturned because the Commonwealth failed to prove that he knowingly possessed a large capacity firearm and large capacity feeding devices. The defendant also argues that the statutes under which he was convicted are unconstitutionally vague because they are too complex to be understood and are enforced arbitrarily. In addition, he contends that the statutes violate his right to bear arms under the Second Amendment and art. 17 by impermissibly regulating possession of firearms.

a. Knowledge that firearms and feeding devices have a large capacity. General Laws c. 269, § 10 (m ), prohibits individuals from "knowingly" possessing or having under their control a large capacity weapon or large capacity feeding device unless they possess a class A or class B license to carry firearms. Under G. L. c. 140, § 121, a large capacity weapon is defined as "any firearm ... (i) that is semiautomatic with a fixed large capacity feeding device; (ii) that is semiautomatic and capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device; (iii) that employs a rotating cylinder capable of accepting more than ten rounds of ammunition in a ... firearm ...; or (iv) that is an assault weapon." A large...