Com. v. Seay

• Decision Date: 04 December 1978
• Citation: 383 N.E.2d 828,376 Mass. 735
• Parties: COMMONWEALTH v. Ben SEAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 828

383 N.E.2d 828

376 Mass. 735

COMMONWEALTH v. Ben SEAY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1978.

Decided Dec. 4, 1978.

Willie J. Davis, Boston, for defendant.

John W. Gibbons, Asst. Dist. Atty., Leonard A. Lucas, law student, Brighton, with him, for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

The defendant was convicted of unlawfully carrying a firearm, selling a firearm, and selling ammunition for a firearm. See G.L. c. 140, §§ 122B, 128; G.L. c. 269, § 10(A ). In this appeal he challenges the trial judge's denial of his motion for a directed verdict on the carrying charge. In addition, he raises issues stemming from the prosecutor's alleged comment on his failure to testify and from the judge's charge to the jury relative to the reasonable doubt standard. We find no error.

The facts are not in dispute and are simply stated. In April, 1976, special agents of the Bureau of Alcohol, Tobacco, and Firearms of the United States Treasury Department began an investigation of gun traffic in the Grove Hall section of Boston. About 9:30 A.M. on June 16, 1977, special agent Philip Cook, another special agent, and an informer drove to the Grove Hall apartment building where the defendant lived. They went there in order to purchase a revolver from the defendant. The defendant and another person (friend) were on the steps of the apartment building when Cook arrived. Leaving his companions in the car, Cook walked over to the defendant and, at the defendant's direction, he entered the foyer of the apartment building.

While Cook waited in the foyer, the defendant went around a corner in the building and down some stairs. After a few minutes, the defendant returned and directed Cook downstairs to the first landing. The defendant then produced a .32 caliber revolver and six rounds of ammunition for it. Cook agreed to pay $75 for the revolver and ammunition. Cook accompanied the defendant's friend outside to Cook's car and obtained $75 from the other special agent. The friend took the money, walked back to the apartment building, and gave the money to the defendant. Cook got into the car and drove away.

For his participation in these events, the defendant was indicted for unlawfully carrying a firearm, for illegally selling a firearm, and for illegally selling ammunition. A jury convicted the defendant on all three indictments. The judge imposed the mandatory one-year sentence for the carrying offense and a six-month sentence, to be served concurrently, on the ammunition-selling offense, and placed the third conviction on file. The defendant appealed, and we ordered the case transferred to this court. G.L. c. 211A, § 10(A).

1. The major issue before us on this appeal is whether the judge should have granted the defendant's motion for a directed verdict on the charge of unlawfully carrying a firearm. The sole question raised by the motion for a directed verdict is whether there was sufficient evidence of the defendant's guilt to warrant the submission of the case to the jury. The test is whether the evidence, in its light most favorable to the Commonwealth and notwithstanding the contrary evidence presented by the defendant, was sufficient to permit the jury to infer the existence of the essential elements of the crime charged. Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975).

Prior decisions of this court construing G.L. c. 269, § 10(A ), have established that "carrying" a firearm occurs when the defendant knowingly has more than momentary possession of a working firearm and moves it from one place to another. Commonwealth v. Albano, --- Mass. ---, --- - ---, 365 N.E.2d 808 (1977). ^A Commonwealth v. Morrissey, 351 Mass. 505, 512, 222 N.E.2d 755 (1967). Commonwealth v. Fancy, 349 Mass. 196, 204, 207 N.E.2d 276 (1965). Cf. Commonwealth v. Atencio, 345 Mass. 627, 631, 189 N.E.2d 223 (1963) (momentary possession during game of Russian roulette not "carrying"). But cf. Commonwealth v. Ballou, 350 Mass. 751, 756, 217 N.E.2d 187 (1966) ("carrying" found where recited facts showed only stationary possession in public place), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967). In addition, we have held that the defendant has the burden of producing evidence to show that he was licensed or otherwise permitted to carry a firearm. Commonwealth v. Jones, --- Mass. ---, --- - ---, 361 N.E.2d 1308 (1977). ^B

The judge correctly denied the defendant's motion for a directed verdict. There was evidence of the following. The defendant had possession of the revolver in the foyer and stairway area of his apartment building prior to the time he sold and delivered it to Cook. The revolver was in evidence, and the jury could determine for themselves how long the barrel was. See G.L. c. 140, § 121 (defining "firearm"). There was evidence that the revolver was capable of firing bullets. Because he sold the revolver to Cook, the defendant surely knew that he had it on his person. The defendant offered no evidence that he was licensed or otherwise permitted to carry the revolver. There was, therefore, sufficient evidence to permit the submission of the case to the jury on the charge of unlawfully "carrying" a firearm.

The defendant argues, however, that he dealt with the revolver in such close proximity to his own dwelling that the Legislature could never have intended imposition of the mandatory one-year jail sentence added to G.L. c. 269, § 10(A ), by St.1974, c. 649, § 2. He would therefore have us construe the verb "carry" to apply only to conduct occurring on a public street. The Commonwealth argues, on the other hand, that "carrying" a firearm within the meaning of the statute may occur within the common areas of an apartment building such as the foyer and stairway involved in this case. We agree with the Commonwealth's position on this issue.

It is helpful in approaching this question of statutory construction to briefly summarize the Massachusetts scheme for handgun control. The revolver involved here is encompassed by the statutory word of art "firearm." G.L. c. 140, § 121. Except as provided in the firearm licensing laws, anyone who "carries (a firearm) on his person, or carries (one) on his person or under his control in a vehicle" is subject to a one-year jail sentence without possibility of parole or other release except for rigidly prescribed purposes. G.L. c. 269, § 10(A ). ¹ In addition, anyone who "owns (or) possesses" a firearm commits a criminal offense unless he first complies with the licensing laws. G.L. c. 269, § 10(H ). A qualified individual may obtain a "firearm identification card" under G.L. c. 140, § 129B, that allows him to possess a firearm legally. G.L. c. 140, § 129C. G.L. c. 269, § 10(H ). To lawfully "carry" a firearm within the Commonwealth, however, a person must either obtain a license to do so under G.L. c. 140, § 131, or be exempt from the normal licensing requirements under G.L. c. 140, §§ 129C, 131F, or 131G, none of which is applicable to this case. ² The statutes governing the possessing and carrying of firearms make no distinction among places that might help us resolve the issue before us. ³

Notwithstanding the silence of directly relevant statutes, other portions of the licensing laws do contain an implicit exemption from criminal liability for one who has a firearm identification card and carries a firearm within his residence or place of business. Any person who is neither an alien, a felon, nor a drug offender and who can demonstrate a "proper purpose" may obtain a license to purchase, rent, or lease a firearm under G.L. c. 140, § 131A. ⁴ Together with a firearm identification card, this permit makes it legal for a Massachusetts resident to obtain, and for a licensed dealer to sell or lease, a firearm. G.L. c. 140, §§ 123, Eighth, 131E. A licensed dealer may not, however, Deliver a firearm so purchased or rented except to a purchaser licensed to carry a firearm or to an unlicensed purchaser at his "residence or place of business." G.L. c. 140, § 123, Seventh. It is therefore possible for a person not licensed to carry a firearm to obtain possession of one within his "residence or place of business" without violating the law.

The provision allowing a licensed dealer to deliver a firearm to the residence or place of business of a person not licensed to carry a firearm was added by St.1957, c. 688, § 7, apparently in response to a study by the Department of Public Safety commissioned by the Legislature the previous year. See Res.1956, c. 64. Prior to the 1957 amendments, it was at least unclear whether an unlicensed person could carry a firearm within his residence or place of business. ⁵ The department's report noted, however, that "there are many citizens throughout the State who will wish to purchase a firearm for the protection of their homes, but who will not desire a license to carry the weapon." 1957 House Doc. No. 3705, at 50. To accommodate such citizens and simultaneously ensure that only persons licensed to carry firearms could leave a dealer's store with a firearm, the department recommended the amendments that allow a dealer to deliver the firearm to the home or business of an unlicensed purchaser. See Id. at 28.

We think it clear that the Legislature intended in 1957 to exempt persons who would keep a firearm only in their homes or places of business for self- protection from the requirement of obtaining a license to carry. It is plainly unreasonable to suppose that the Legislature intended a lawful possessor to be penalized for carrying a firearm within the very place to which a dealer may lawfully deliver it. There is no indication whatever that the Legislature intended St.1974, c. 649, which added the mandatory jail sentence to the carrying offense, to modify or repeal this exemption. Accordingly, we conclude that carrying a...