Com. v. Sampson

• Citation: 422 N.E.2d 450,383 Mass. 750
• Parties: COMMONWEALTH v. Michael Jon SAMPSON.
• Decision Date: 22 June 1981
• Court: United States State Supreme Judicial Court of Massachusetts

Page 450

422 N.E.2d 450

383 Mass. 750

COMMONWEALTH v. Michael Jon SAMPSON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 4, 1981.

Decided June 22, 1981.

Milly Whatley, Boston, for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant, Michael Jon Sampson, appeals from his conviction under G.L. c. 269, § 10(a), for carrying a firearm without a license. A single justice of the Appeals Court allowed Sampson's motion for a stay of execution of sentence, and we granted direct appellate review. We reverse the conviction.

The following evidence was presented at the jury-waived trial in the Superior Court. While on duty on April 4, 1979, three Lowell police officers saw a man, whom they recognized as Sampson, enter a sandwich shop. A check with police headquarters confirmed the officers' suspicion that a warrant had been issued for Sampson's arrest. ¹ As Sampson left the shop, the officers placed him under arrest and proceeded to search him. In Sampson's shirt pocket they found a United States Navy Projector Signal MK-31 Model O flare gun, loaded with an MK-80 Model O flare cartridge. A second flare cartridge was found in another pocket. The search also revealed five plastic bags containing white pills. During a later inventory search at the police station where Sampson was taken for booking, more white pills were found. Sampson was charged with unlawful possession of a controlled substance with intent to distribute. ² He was also charged with unlawfully carrying a firearm on his person. Surprised and upset about the firearm charge, Sampson protested: "It is not a firearm. It is only a flare gun." When asked by one of the officers why he was carrying the flare gun, Sampson responded: "If you were in my line of business in this town, you would have something to protect yourself"; "(w)hen you are carrying that much drugs on you in Lowell, you never know when you are going to get robbed or beat on."

The main dispute at trial centered on whether the device found on Sampson fit the statutory definition of "firearm" as "a pistol, revolver or other weapon of any description loaded or unloaded, from which a shot or bullet can be discharged and of which the length of barrel is less than sixteen inches." G.L. c. 140, § 121, as appearing in St.1973, c. 892, § 1. Both the Commonwealth and the defendant presented expert testimony on this issue. Testifying for the Commonwealth was Michael R. Arnold, a State police officer assigned to the firearms identification section. He testified that the flare device, commonly called a "pen gun," measured 69/16 inches with the flare cartridge inserted; the cartridge alone measured 25/16 inches. Arnold described the test he had conducted to determine whether the device was capable of discharging a shot or bullet. He took an empty tear gas cartridge, which he maintained was interchangeable with the flare cartridge because the threading was the same, and screwed it into the pen gun. He loaded some live shell shot primer into the rear of the empty tear gas cartridge and packed it down with cotton. He then added "a quantity of number 9 lead shot" and packed that down with more cotton. After this preparation, Arnold fired the device without malfunction. He testified that the primer was used solely as a propellant to propel the lead shot. He did not use gunpowder because he would have been "a little leery" of the safety of conducting the test had he done so. In Arnold's opinion, the device was a firearm under G.L. c. 140, § 121.

Appearing for the defense was ballistics expert Chester E. Hallice, Jr., a private investigator formerly employed by the State police. He described how the "flare gun," which he called a "CD signal device," is designed to operate. The base of the flare cartridge is threaded so as to allow it to be screwed into the mouth of the signal device. A knob on the device is pulled back manually. When the knob is released, the spring-controlled firing pin strikes the primer at the base of the cartridge, igniting the propellant inside the cartridge and forcing out the contents of the cartridge. Using his own cartridge and primer, Hallice test-fired the device without malfunction. ³ When asked whether the device was a firearm, Hallice responded: "By law, yes; by design, no." He explained that the device was designed and marked for use as a signal device, with a flare; but "by law, anything could be a firearm. I could probably go around and lock up every plumber because he carries a barrel length less than 16 inches, and I could make it capable of discharging a shot."

The judge concluded that the instrument in question was a firearm, found Sampson guilty of carrying a firearm without a license, and imposed the mandatory sentence of one year's imprisonment. ⁴

On appeal Sampson contends that (1) the signal device found on him is not a firearm within the meaning of G.L. c. 269, § 10(a), and c. 140, § 121; (2) even if the device is deemed a firearm, insufficient evidence exists to show that he knew or reasonably should have known it was a firearm; and (3) c. 269, § 10(a), is unconstitutionally vague as applied to his conduct in this case.

The statutory proscription against carrying firearms without a license or other authority, G.L. c. 269, § 10(a), dates back to 1906, when the Legislature punished the unlawful carrying of a loaded pistol or revolver. St.1906, c. 172, § 2. The proscription later was broadened to cover the carrying of "a firearm as defined in (c. 140, § 121), loaded or unloaded." St.1957, c. 688, § 23. "Firearm" is defined in c. 140, § 121, to mean "a pistol, revolver or other weapon of any description loaded or unloaded, from which a shot or bullet can be discharged and of which the length of barrel is less than sixteen inches or eighteen inches in the case of a shotgun." This definition of firearm, which has prevailed in the Commonwealth since 1911 with little change, ⁵ may be broken down into three requirements: the instrument in question must be (1) a weapon, (2) capable of discharging a shot or bullet, and (3) under a certain length.

The first question is whether the signal device found on the defendant is a weapon for purposes of the statute. The simplest definition of weapon is "something to fight with." Webster's New Int'l Dictionary (2d ed. 1959) at 2892. A weapon is "an instrument of offensive or defensive combat; ... anything used, or designed to be used, in destroying, defeating, or injuring, an enemy" (emphasis added). Id. The distinction between instruments that are weapons by design and those that become weapons because they are used as such was explained recently in Commonwealth v. Appleby, --- Mass. ---, --- - --- ^a, 402 N.E.2d 1051 (1980), involving a prosecution for assault and battery by means of a dangerous weapon. In Appleby, we classified as weapons "dangerous per se" (i. e., dangerous by design) those "instrumentalit(ies) designed and constructed to produce death or great bodily harm," such as "firearms, daggers, stilettos and brass knuckles, (which) are ... designed for the purpose of bodily assault or defense." Id. at --- - --- ^b, 402 N.E.2d 1051. An instrument that is not a weapon by design may nonetheless become one by the manner in which it is used. ("(R)azors, hammers, wrenches and cutting tools," all of which have legitimate, ordinary uses, may be classified as dangerous weapons when used as such. Id.) See, e. g., Commonwealth v. Farrell, 322 Mass. 606, 614-615, 78 N.E.2d 697 (1948) (lighted cigarette is dangerous weapon when used to burn human flesh).

The flare device at issue here is not a weapon by design. The purpose of the device is to enable boat operators to send visual distress signals to expedite rescue efforts. Devices suited for such a purpose, including hand-held red flare distress signals, are required by the United States Coast Guard on certain classes of boats. See Navigation and Navigable Waters, 33 C.F.R. §§ 175.110, 175.130 (1980); 45 Fed.Reg. 45,269 (1980) (to be codified in 33 C.F.R. § 175.130). The signal device thus has a legitimate, noncombative design and purpose. ⁶ Granted, as is true with many objects that are not weapons by design, the device could be characterized as a weapon if it were so used. In the case before us, however, the device was not used at all, either as a weapon or otherwise; the offense charged is simply one of carrying, not using.

The Commonwealth makes much of Sampson's allusions to his potential use of the device for protection. ⁷ The question before us then becomes: Should a device that is neither designed nor actually used as a weapon be deemed a weapon that must be licensed because its owner intends to use it as a weapon at some time in the future? We think not. In a licensing scheme that depends on obtaining legal permits in advance, the definition of the object subject to licensing should be construed, as much as is feasible, in a manner that does not require looking into the subjective intent of the potential licensee. We do not believe that the Legislature intended an object's character as a "weapon" under c. 140, § 121, to turn on its intended use as a weapon. Rather, the focus in the legislative regulatory scheme seems to be on those instruments and materials that are designed to injure or incapacitate. The same statute that regulates the carrying of firearms forbids the carrying of instruments such as stilettos, blackjacks, and metallic knuckles, all of which are dangerous by design. G.L. c. 269, § 10(b ). See Commonwealth v. Appleby, supra, --- Mass. at --- ^c, 402 N.E.2d 1051. The same section that defines firearm defines ammunition to mean not only conventional ammunition, such as bullets, "designed for use in any firearm, rifle or shotgun," but also "tear gas cartridges, chemical mace, or any device or instrument which...