Com. v. Lindsey

• Decision Date: 05 March 1986
• Citation: 396 Mass. 840,489 N.E.2d 666
• Parties: COMMONWEALTH v. Sylvester LINDSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 666

489 N.E.2d 666

396 Mass. 840

COMMONWEALTH v. Sylvester LINDSEY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 2, 1985.

Decided March 5, 1986.

Patricia A. O'Neill, Committee for Public Counsel Services (Paul L. McGill, Committee for Public Counsel Services, Boston, with her), for defendant.

Judy G. Zeprun, Asst. Dist. Atty. (Gary Schubert, Asst. Dist. Atty., with her) for Com.

Richard A. Voke, Chelsea, J. John Fox, Boston and Thomas J. Carey, Jr., Brookline, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

WILKINS, Justice.

The defendant was indicted for assault with intent to murder, assault and battery by means of a dangerous weapon, and unlawful carrying of a firearm on his person. A jury found him not guilty of the assault crimes and guilty of the charge of unlawful carrying of a firearm. Although the evidence, including the defendant's testimony, demonstrated that he shot one Edward Michel, the evidence from the defendant and witnesses other than Michel tended to show that he did so in self-defense when Michel assaulted him with a knife.

Presumably the evidence bearing on self-defense led the jury to their two verdicts of not guilty. ¹ The trial judge had declined however, to instruct the jury that they could also consider reasonable apprehension of serious bodily harm as a justification for the carrying of a firearm in circumstances that otherwise would be a violation of G.L. c. 269, § 10(a ) (1984 ed.). The sole issue on appeal is whether the defendant was entitled to an instruction to the effect that the Commonwealth had to prove beyond a reasonable doubt that in carrying the firearm the defendant did not act reasonably out of necessity or in self-defense. ² We granted the defendant's application for direct appellate review of his conviction and now affirm that conviction.

We conclude that such an instruction was not required because there was no evidence that the defendant was subject to a direct and immediate threat of serious injury throughout the time he carried the gun outside his home. Our affirmance of the defendant's conviction means that, in the absence of relief from another branch of government, he must serve the one-year sentence mandated by G.L. c. 269, § 10(a ), of which the trial judge stayed the execution pending appeal.

In determining whether the evidence required an instruction concerning action taken out of necessity, we view the evidence in its light most favorable to the defendant. The defendant shot Michel shortly after 7 A.M. on August 31, 1983, at the Fields Corner MBTA station in the Dorchester section of Boston. The two, who had been employees of an ice cream manufacturing company, had exchanged angry words at work a few days before the shooting. Subsequently, on Monday, August 29, Michel had challenged the defendant to a fight and, when the defendant declined, had pursued him, charging the defendant with a knife. The defendant fended Michel off and escaped. That same day the defendant complained to the police and sought a complaint at the Dorchester District Court against Michel for assault and battery with a dangerous weapon. On the next day, fellow employees told the defendant that Michel was claiming that he would "get" the defendant.

When the defendant left his home in Cambridge for work on Wednesday (August 31), he carried a firearm although he was not licensed to do so, because he "was afraid of getting stabbed." Michel approached the defendant, who stood waiting for a bus at the MBTA station. At a distance of ten feet, Michel pulled a knife from his jacket. The defendant backed up and told Michel to forget it and to drop the knife, but Michel continued to advance "very fast." When Michel was six feet away and still advancing, the defendant, in fear for his life and acting to protect himself, drew his gun and fired at Michel. The defendant then went home not knowing whether Michel had been hit and called a lawyer, who accompanied him to a police station. Although Michel testified to a considerably different version of the incidents described by the defendant, several disinterested witnesses substantially corroborated the defendant's testimony.

The history of Massachusetts gun control legislation in this century shows an unwavering legislative intent that one may lawfully carry a firearm only if he has a license or qualifies for a specific statutory authorization. This court has said that the intent of G.L. c. 269, § 10, "is to protect the public from the potential danger incident to the unlawful possession of such weapons." Commonwealth v. Bartholomew, 326 Mass. 218, 219, 93 N.E.2d 551 (1950). We have read § 10(a ) as requiring proof that the accused knew he was carrying a firearm but have held that § 10(a ) does not offend due process by imposing a mandatory one-year sentence even on a person who does not know of the license requirement. Commonwealth v. Jackson, 369 Mass. 904 916-917, 344 N.E.2d 166 (1976). In the Jackson case, we recognized the constitutional authority of the Legislature to conclude that "harsh, inflexible penalties are needed to serve as a deterrent and that the need for deterrence, in light of the potential danger created by the unlawful carrying of a firearm, should be the primary, if not the sole, objective of the statute." Id. at 919, 344 N.E.2d 166. We added that it is not the function of this court to inquire into the wisdom of the legislative judgment, once it is established that the Legislature acted within constitutional limits. Id. at 919-920, 344 N.E.2d 166. Any exceptions that we have found to the general prohibition of § 10(a ) have been based on legislative intent. Commonwealth v. Rhodes, 389 Mass. 641, 451 N.E.2d 1151 (1983) (BB gun, regulated by another statute, not regulated by § 10[a ] ); Commonwealth v. Seay, 376 Mass. 735, 742, 383 N.E.2d 828 (1978) (Legislature authorized unlicensed person with valid firearm identification card to carry firearm within one's residence or place of business). This court has shown no general inclination to treat the prohibitions of § 10(a ) lightly or to find in § 10(a ) some saving flexibility in favor of a sympathetic defendant enmeshed in the web of a mandatory sentence. Our conclusion in this case is consistent with our firm and established view of the prohibitions of § 10(a ).

This court has never had an occasion to decide whether action taken out of necessity (or in self-defense, or under duress) might justify the carrying of a firearm in violation of the literal provisions of G.L. c. 269, § 10(a ). We noted the question, although it was not presented for decision, in Commonwealth v. Franklin, 376 Mass. 885, 888 n. 2, 385 N.E.2d 227 (1978). See Commonwealth v. Robinson, 382 Mass. 189, 198-200, 415 N.E.2d 805 (1981), for a discussion of duress, and Commonwealth v. Thurber, 383 Mass. 328, 330, 418 N.E.2d 1253 (1981), for a discussion of necessity. The Appeals Court, in Commonwealth v. Brown, 10 Mass.App.Ct. 935, 936, 413 N.E.2d 746 (1980), seems to have assumed without discussion that justification for carrying a gun might negate the crime.

Other jurisdictions have recognized that particular circumstances may justify possession or carrying of a firearm in apparent violation of a statute so as to warrant a not guilty finding. In States where self-defense or necessity is recognized by statute as a justification, the courts have acknowledged that the prohibitions of firearms statutes might be inapplicable to one acting reasonably in defense of himself in a serious emergency. See People v. King, 22 Cal.3d 12, 26, 148 Cal.Rptr. 409, 582 P.2d 1000 (1978); State v. Jackson, 452 So.2d 776, 779 (La.App.1984); State v. Harmon, 203 N.J.Super. 216, 222-223, 496 A.2d 707 (1985); Johnson v. State, 650 S.W.2d 414, 416 (Tex.Crim.App.1983). Even in the absence of a statute on self-defense or necessity, numerous courts have acknowledged the possibility that a person's conduct might be justified despite a showing of all the basic elements of unlawful possession. See United States v. Gant, 691 F.2d 1159, 1162-1165 (5th Cir.1982) (defendant did not show necessary elements of the affirmative defense of justification); State v. Walton, 311 N.W.2d 113, 115-116 (Iowa 1981) (evidence did not raise a jury question on defense of necessity); Medley v. State, 52 Md.App. 225, 236, 448 A.2d 363 (1982) (same); State v. Spaulding, 296 N.W.2d 870, 877 (Minn.1980) (jury adequately instructed on defense of necessity in felon's possession of a pistol). Cf. People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984) (a suddenly discovered weapon or one taken from an assailant would not constitute unlawful possession).

Each statement of the rule of necessity in these authorities includes, expressly or impliedly, the requirement that the threat to the defendant must be immediate, substantial, and unavoidable and that it arise in circumstances in which action in self-defense would have been warranted (i.e., the defendant had a...