Commonwealth v. Brown, 16-P-67

CourtAppeals Court of Massachusetts
Writing for the CourtMILKEY, J.
Citation91 Mass.App.Ct. 286,74 N.E.3d 293
Docket NumberNo. 16-P-67,16-P-67
Decision Date31 March 2017

91 Mass.App.Ct. 286
74 N.E.3d 293

Tyriek BROWN.

No. 16-P-67

Appeals Court of Massachusetts, Worcester..

Argued February 6, 2017
Decided March 31, 2017

Deborah Bates Riordan, Quincy, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Present: Cypher, Milkey, & Neyman, JJ.


91 Mass.App.Ct. 286

During an inventory search of the car that the defendant had been driving, a State trooper discovered a loaded handgun. Based on this, the defendant was indicted on two related counts: unlawful possession of a firearm, and unlawful possession of a loaded firearm. See G. L. c. 269, § 10(a ) & (n ). A Superior Court jury convicted him of those charges.1 His appeal primarily focuses on a question of law that the Supreme Judicial

91 Mass.App.Ct. 287

Court flagged without answering: "whether, to be convicted of unlawful possession of a loaded firearm, a defendant must know that the firearm he possessed was loaded." Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7, 965 N.E.2d 800 (2012). The Commonwealth maintains that proof of such knowledge is not required. Although we are not unsympathetic to the textual arguments on which the Commonwealth relies, existing case law requires us to conclude that the Commonwealth must prove that the defendant knew that the gun was loaded. We further conclude that the evidence here was legally insufficient to establish such knowledge, and that the defendant therefore is entitled to a judgment of acquittal on the indictment for unlawfully possessing a loaded firearm. We otherwise affirm.

Background. On July 4, 2013, a State trooper stopped the car that the defendant was driving because of an inoperable tail light. After learning that the defendant's driver's license had been suspended, the trooper placed him in custody. Although the defendant had two passengers with him, neither possessed a valid license, and the trooper therefore determined that the car needed to be towed. During an inventory search of the car, the trooper discovered a handgun in the console between the rear passenger seats. There were five bullets in the gun's magazine.

While the defendant was being transported to the police station by a second trooper, he made various statements regarding the gun.2 He initially stated his belief that the passenger who had been seated in the front seat of the car possessed a license for it (something that was

74 N.E.3d 295

never substantiated). The defendant then stated that he had obtained the gun during an incident at his former girl friend's house prior to the stop. According to him, the former girl friend's sister was waving the gun around during an argument she was having with an unknown man. The defendant stated that he disarmed the sister, and, upon returning to the car, handed the gun to the rear seat passenger (intending to dispose of it later).

Meanwhile, the rear seat passenger was giving a different story to the police. She stated that the gun was hers and that she owned it in order to protect herself (having recently been the victim of a violent crime). She had placed the gun in the car's rear console, she claimed, because it made her purse heavy. The woman did not

91 Mass.App.Ct. 288

testify at the defendant's trial, but her statements about the gun were admitted as statements against penal interest.

At the charge colloquy, the judge indicated that he intended to use the model jury instructions, which did not include an instruction that the Commonwealth had to prove that the defendant knew the gun was loaded. The defendant raised no objection. During their deliberations, the jury themselves honed in on the knowledge issue, asking the judge: "Does the defendant have to know whether the firearm was loaded, or just that he possessed it and it was loaded?" After discussing the matter with counsel,3 the judge did not answer the jury's question directly, but he reiterated the elements that the Commonwealth had to prove without including among them knowledge that the gun was loaded.4 The jury found the defendant guilty of unlawful possession of a firearm and of unlawful possession of a loaded firearm.5

Discussion. The defendant primarily focuses on the loaded firearm charge. He makes two related arguments: (1) the Commonwealth presented legally insufficient evidence that he knew

91 Mass.App.Ct. 289

the gun was loaded, and (2) in any event, the judge's failure to instruct the jury that the Commonwealth had to prove such knowledge created a substantial risk of a miscarriage of justice (entitling him to a new trial). Both arguments depend on whether proof

74 N.E.3d 296

is required that the defendant knew the gun was loaded. We turn to that question, examining first the language of the statute, the principal source of legislative intent. Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct. for the County of Worcester, 446 Mass. 123, 124, 842 N.E.2d 926 (2006).

1. Whether knowledge is required. Subsections (a ) and (n ) of G. L. c. 269, § 10, operate in tandem. Subsection 10(a ) makes it a crime to "knowingly" possess a firearm outside one's home or place of work without the requisite authority.6 For purposes of § 10(a ), standing alone, it is beside the point whether the firearm was "loaded or unloaded." A violation of that subsection is subject to various sanctions, including a mandatory minimum term of incarceration. If the firearm that was knowingly and unlawfully possessed was loaded, then the defendant is subject to additional jail time under § 10(n ).7 See Commonwealth v. Dancy, 90 Mass.App.Ct. 703, 705, 63 N.E.3d 1128 (2016). Thus, § 10(n ) does not set forth a stand-alone crime, but serves as a sentencing enhancement provision that applies when someone violates § 10(a ) "by means of a loaded firearm."8

In arguing that it can make use of the sentencing enhancement provisions of G. L. c. 269, § 10(n ), without proving knowledge

91 Mass.App.Ct. 290

that the firearm was loaded, the Commonwealth relies on the fact that § 10(n ) does not include any express knowledge requirement, while G. L. c. 269, § 10(a ), does. However, as noted, § 10(n ) is not a stand-alone provision, and its import turns on how it interacts with § 10(a ). The operative question is what it means to violate § 10(a ) "by means of a loaded firearm." The Commonwealth asserts that all this means is that the firearm that a defendant knowingly possesses was loaded. Certainly, that interpretation is a plausible one, and it may be the most natural reading of the statutory language. Adding further support to the Commonwealth's position is the fact that because proving knowledge that a firearm was loaded will often be quite difficult, requiring such knowledge could render § 10(n ) to little effect.9

At the same time, a different reading of the statutory text is at least possible. Because

74 N.E.3d 297

G. L. c. 269, § 10(a ), on its own already requires that a defendant "knowingly has in his possession ... a firearm," and G. L. c. 269, § 10(n ), serves to incorporate the additional requirement that the firearm be "loaded," the subsections together can be read as requiring that a defendant knowingly has in his possession a loaded firearm.10 In turn, it is not a leap at all to say that one cannot knowingly possess a loaded firearm without knowing that the firearm is loaded. See Commonwealth v. Lawson, 46 Mass.App.Ct. 627, 629-630, 708 N.E.2d 148 (1999), quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 273, 57 N.E.2d 921 (1944) (" ‘[k]nowingly’ when used in a criminal statute ‘commonly imports a perception of the facts requisite to make up the crime’ ").11 If that reading of the statutory text is plausible, then it must be accepted under the rule of lenity. See

91 Mass.App.Ct. 291

Commonwealth v. Williamson, 462 Mass. 676, 679, 971 N.E.2d 250 (2012).

In the end, we need not decide whether such a reading of the statutory text is of sufficient plausibility to invoke the rule of lenity, because, as discussed below, that interpretation is otherwise required by existing case law. Specifically, we conclude that the defendant's proffered interpretation is compelled by the Supreme Judicial Court's decision in Commonwealth v. Johnson, 461 Mass. 44, 958 N.E.2d 25 (2011). A full understanding of that case cannot be gleaned without examining it against the backdrop of prior judicial interpretations of G. L. c. 269, § 10. We therefore turn next to reviewing that history.

In Commonwealth v. Boone, 356 Mass. 85, 248 N.E.2d 279 (1969), the Supreme Judicial Court examined an earlier version of G. L. c. 269, § 10, before that section was broken into subsections. The language at issue there, unlike the language in the current § 10(a ), did not require the defendant to have "knowingly" possessed the firearm. Nevertheless,...

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5 cases
  • Commonwealth v. Taylor
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 17 Diciembre 2020
    ...Court previously have referred to it as a sentencing enhancement. See Brown, 479 Mass. at 604, 97 N.E.3d 349 ; Commonwealth v. Brown, 91 Mass. App. Ct. 286, 289, 74 N.E.3d 293 (2017), S.C., 479 Mass. 600, 97 N.E.3d 349 (2018). See also Dancy, 90 Mass. App. Ct. at 705, 63 N.E.3d 1128 (refere......
  • Commonwealth v. Mitchell
    • United States
    • Appeals Court of Massachusetts
    • 5 Junio 2019
    ...trigger.4 The Supreme Judicial Court decided Brown after granting further appellate review of our decision in Commonwealth v. Brown, 91 Mass. App. Ct. 286, 74 N.E.3d 293 (2017), which also held that knowledge was an essential element of the offense. Id. at 293, 74 N.E.3d 293. Our decision i......
  • Com. v. Brown
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 22 Mayo 2018
    ...c. 269, § 10 (n ), requires the Commonwealth to prove a defendant's knowledge that the firearm was loaded. See Commonwealth v. Brown, 91 Mass. App. Ct. 286, 287, 293, 74 N.E.3d 293 (2017). Because the defendant "could not have discerned whether the gun was loaded merely by looking at it," a......
  • Commonwealth v. Galarza, 17-P-728
    • United States
    • Appeals Court of Massachusetts
    • 15 Agosto 2018
    ...that the defendant knew it was loaded," the evidence was insufficient. Id. at 605, 97 N.E.3d 349, quoting from Commonwealth v. Brown, 91 Mass. App. Ct. 286, 293, 74 N.E.3d 293 (2017).Possession of ammunition without a firearm identification card is a lesser included offense of unlawful poss......
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