Com. v. Nieves

• Decision Date: 31 July 1997
• Docket Number: No. 96-P-758,96-P-758
• Citation: Com. v. Nieves, 680 N.E.2d 561, 43 Mass.App.Ct. 1 (Mass. App. 1997)
• Parties: COMMONWEALTH v. Victor NIEVES.
• Court: Appeals Court of Massachusetts

Page 561

680 N.E.2d 561

43 Mass.App.Ct. 1

COMMONWEALTH v. Victor NIEVES.

No. 96-P-758.

Appeals Court of Massachusetts Hampden.

Argued Feb. 7, 1997.

Decided June 13, 1997.

Further Appellate Review Denied July 31, 1997.

John L. Melanson, Westfield, for defendant.

James R. Goodhines, Assistant District Attorney, for Commonwealth.

Before KASS, GREENBERG and FLANNERY, JJ.

KASS, Justice.

Victor Nieves was found guilty by a jury of six of knowingly having in his possession or under his control in a vehicle a firearm without a license, in violation of G.L. c. 269, § 10(a ). On appeal, Nieves argues--we think persuasively--that the trial judge erred in denying his motion for a required finding of not guilty on the ground that the evidence was insufficient to enable the jury to find beyond a reasonable doubt that the gun was a working firearm, capable of discharging a bullet. Accordingly, we reverse the judgment.

"To constitute a 'firearm' within the meaning of G.L. c. 140, § 121, and hence within the prohibition of G.L. c. 269, § 10(a), the 'instrument in question must be (1) a weapon, (2) capable of discharging a shot or bullet, and (3) under a certain length.' " Commonwealth v. Raedy, 24 Mass.App.Ct. 648, 652, 512 N.E.2d 279 (1987), quoting from Commonwealth v. Sampson, 383 Mass. 750 753, 422 N.E.2d 450 (1981). See Commonwealth v. Tuitt, 393 Mass. 801, 810, 473 N.E.2d 1103 (1985). The Commonwealth argues that, based on evidence adduced at trial, the jury could reasonably have concluded that the .38 caliber revolver found behind the driver's seat of the car the defendant was driving was capable of discharging a bullet.

The burden on the Commonwealth in proving that the weapon is a firearm in the statutory sense is not a heavy one. It requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire. So, for example, testimony from an expert that a firing pin could easily be fashioned to make a weapon work as a submachine gun could take to the jury the question of fact whether the gun was a machine gun. Commonwealth v. Bartholomew, 326 Mass. 218, 219 & 222, 93 N.E.2d 551 (1950). In Commonwealth v. Fancy, 349 Mass. 196, 204, 207 N.E.2d 276 (1965), the gun in question was loaded, leading the court to observe that the jury could, without the aid of an expert, find that the gun was capable of discharging a bullet. In Commonwealth v. Sperrazza, 372 Mass. 667, 668, 670, 363 N.E.2d 673 (1977), there was evidence that the gun in question had actually been fired. An issue was raised whether it had a barrel less than sixteen inches and that, of course, the jury could determine through simple observation. The threat with a gun, "Don't get killed over anybody else's money," together with the gun itself, was evidence which warranted a jury in finding that the gun at issue in Commonwealth v. Tuitt, 393 Mass. at 809-810, 473 N.E.2d 1103, could discharge a bullet. The facts in Commonwealth v. Stallions, 9 Mass.App.Ct. 23, 398 N.E.2d 738 (1980), resembled those in Commonwealth v. Fancy, supra, in that the gun, a .38 caliber Smith and Wesson, contained five cartridges in the chamber. There was testimony in Commonwealth v. Raedy, 24 Mass.App.Ct. at 652-654, 512 N.E.2d 279, that the weapon, a .25 caliber semiautomatic handgun, was loaded, operable with a minor repair easily made by someone who owned the gun, and could be fired without a repair at least once if held upside down. Testimony in Commonwealth v. Sylvester, 35 Mass.App.Ct. 906, 617 N.E.2d 661 (1993), that the defendant fired four or five shots at a police officer was obviously quite enough to show that the gun was in working order and, as in some of the other cases, the residual question of barrel length was something the jury...