Com. v. Stallions

• Decision Date: 09 January 1980
• Citation: 9 Mass.App.Ct. 23,398 N.E.2d 738
• Parties: COMMONWEALTH v. James E. STALLIONS.
• Court: Appeals Court of Massachusetts

Page 738

398 N.E.2d 738

9 Mass.App.Ct. 23

COMMONWEALTH v. James E. STALLIONS.

Appeals Court of Massachusetts, Worcester.

Argued Nov. 13, 1979.

Decided Jan. 9, 1980.

Thomas C. Cameron, Boston, for defendant.

Joseph LoStracco, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GOODMAN and GRANT, JJ.

HALE, Chief Justice.

The defendant appeals from his convictions on complaints charging (1) the carrying of a firearm without a license or permit to do so (G.L. c. 269, § 10(A ), as amended through St.1975, c. 585, § 1) and (2) refusing to obey the command of a police officer to depart from an unlawful assembly (G.L. c. 269, § 2). ¹ On the evidence the jury could have found that at about 10:00 P.M. on August 5, 1978, several Westborough police officers responded to calls from an apartment complex. A "beef and beer" party, attended by 150-200 people, was taking place in the recreation building and common area of the complex. One officer, Otten, had responded to three calls between 8:00 P.M. and 10:00 P.M. On the third call four officers arrived and told the group to disperse. People were slowly moving away when the sound of a firecracker was heard from a section near a post and rail fence where six people, including the defendant, were standing. Officers Otten and Allen saw the defendant remove a gun from the vest of one Littlefield, place it into the front of his own trousers, and walk a distance of fifteen to twenty feet by the fence. He then transferred the gun to the rear of his trousers and walked back to Littlefield, replacing the gun in Littlefield's vest. The defendant's walk by the fence lasted between one and two minutes. All the officers pulled out their revolvers and approached the group of six, telling them to lie on the ground. Everyone but Littlefield did so. He was asked for the weapon and stated he had a permit. The weapon, a .38 caliber revolver with five cartridges in its chamber, was taken by Officer Otten. ²

1. The defendant argues that his motion for a directed verdict on the firearms charge was improperly denied as the evidence of his temporary possession of the firearm would not permit a finding that he "carried" it within the meaning of G.L. c. 269, § 10(A ). There was no error.

In Commonwealth v. Seay, --- Mass. ---, --- ^A, 383 N.E.2d 828 (1978), the Supreme Judicial Court synthesized its earlier decisions construing "carrying" under the statute into a simple rule: " '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." The possession of the firearm for the time it took the defendant to remove the revolver from Littlefield's person, place it under his belt, walk fifteen or twenty feet, shift the weapon to his belt in the back of his trousers, retrace his steps fifteen to twenty feet, and return the revolver to Littlefield was far more than momentary. The firearm was obviously moved from one place to another. Contrast Commonwealth v. Atencio, 345 Mass. 627, 631, 189 N.E.2d 223 (1963); Commonwealth v. Osborne, 5 Mass.App. 657, --- - --- ^B, 368 N.E.2d 1219 (1977).

2. By means of an uncertified copy of a transcript of testimony at a District Court trial, the defendant sought to impeach the testimony of Officers Otten and Allen that two minutes passed between the time he removed the revolver from Littlefield's vest and the time he returned it. There was testimony recorded in the District Court transcript that the elapsed time was "approximately one minute" or "a minute or so." We need not consider whether it was error or an abuse of discretion to deny the defendant the opportunity to reopen the defense, after the prosecutor had completed his rebuttal, in order to produce the District Court stenographer who, according to the offer of proof, would have produced the District Court testimony. We regard any inconsistency in the testimony as too trivial to have had any effect upon the jury.

3. No evidence was introduced that the revolver had been tested and found operable. We have examined the revolver, a .38 caliber Smith & Wesson. Both the revolver and five cartridges taken from it were before the jury as exhibits, together with testimony concerning them. The jury could find without the aid of expert testimony that the revolver was "capable of discharging a bullet." Commonwealth v. Fancy, 349 Mass. 196, 204, 207 N.E.2d 276 (1965). See Commonwealth v. Sperrazza, 372 Mass. 667, 670, 363 N.E.2d 673 (1977). Contrary to the defendant's claim, the amendment of § 10(A ) which provides a mandatory...