Commonwealth v. Harris, SJC-12607

• Decision Date: 29 March 2019
• Docket Number: SJC-12607
• Citation: 481 Mass. 767,119 N.E.3d 1158
• Parties: COMMONWEALTH v. Brian K. HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 767

119 N.E.3d 1158

COMMONWEALTH

v.Brian K. HARRIS.

SJC-12607

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 5, 2018

Decided March 29, 2019

Christopher DeMayo for the defendant.

Ashlee R. Mastrangelo, Assistant District Attorney (Melissa Weisgold Johnsen, Assistant District Attorney, also present) for the Commonwealth.

Maura Healey, Attorney General, & Thomas E. Bocian, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

This case concerns challenges to the firearms licensing statute by the defendant, a firearm owner licensed to carry firearms in New Hampshire, who moved to the Commonwealth and did not obtain a Massachusetts firearm license within the sixty-day statutory time period for new residents.

Upon his return from a brief visit to New Hampshire, the defendant, who was intoxicated, got into a confrontation with his girlfriend in the early morning hours of September 12, 2015; she fled the apartment and called police. Officers returned with her to the apartment and spoke with the defendant, who agreed that he owned a Glock 43 pistol, and told them that it was in the trunk of his vehicle. Officers retrieved the weapon for "safekeeping" and kept the defendant overnight at the police station for his own safety after they determined he was too intoxicated to drive.

The defendant was not arrested, but two criminal complaints subsequently issued from the District Court charging him with unlawful possession of a firearm in violation of G. L. c. 269, § 10 (h ) (1) ; unlawful possession of ammunition in violation of G. L. c. 269, § 10 (h ) (1) ; and unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a ).¹ A District Court jury convicted the defendant on all charges. He appealed, and we allowed his application for direct appellate review.

The defendant challenges the denial of his motion to dismiss the complaint charging unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a ), on constitutional grounds.² In the alternative, he requests a new trial on the grounds of asserted errors in the jury instructions and purported prejudice as a result of assertedly improper questioning of a witness by the prosecutor. We affirm.³

Discussion. 1. Motion to dismiss. a. Factual background. The limited facts before the judge were drawn predominantly from a police report submitted as an exhibit to the defendant's motion to dismiss.

In January 2015, Patty⁴ and the defendant started dating. At the time, Patty was living in an apartment in Tewksbury. In late May 2015, the defendant moved into Patty's apartment.

On June 4, 2015, Patty and the defendant removed some of her belongings from the apartment to make room for the defendant's belongings. That night, the defendant woke Patty by yelling. He pushed her across the room and pinned her to a wall. The defendant had found a photograph of Patty's former boyfriend. The defendant said that he would "mutilate" the former boyfriend "in front of [Patty] ... or worse." He also said that he would "assassinate anyone [he] want[ed] anytime [he] want[ed]," and told Patty that he was "the most brutal person [she] will meet." The defendant counted rounds of ammunition and identified jackets he would wear at his victims' funerals.

On September 11, 2015, the defendant and Patty were in the Tewksbury apartment. They had a verbal argument about Patty's work schedule, during which the defendant was verbally abusive. He went to the bedroom closet, where he retrieved a weapon that Patty identified as his "Glock." There was no indication that the firearm was loaded, but Patty also saw ammunition.

The defendant removed articles of his clothing from the closet; packed them, with the Glock, in a backpack; and left the apartment. The defendant planned to "stay in New Hampshire for the night." The defendant did not end up staying in New Hampshire. Rather, at approximately 1 A.M. on September 12, 2015, "after drinking," he came home to Tewksbury. He was intoxicated. Patty was asleep and did not hear the defendant enter the apartment.

The defendant "threw on the lights and pulled the blankets off" Patty. He became enraged when she told him that "he was drunk" and that she "wanted nothing to do with him in [that] state." He began throwing items around and "trashing the apartment," while yelling at Patty and using obscene language.

Thinking about the Glock and the defendant's earlier actions, Patty became fearful for her safety. In an attempt to calm the defendant, Patty called his father, but this resulted in the defendant becoming yet more enraged. Patty grabbed her dog and keys, and called police as she fled the apartment; the defendant ran after her. After Patty got into her vehicle, the defendant "banged on" its exterior. Patty drove to a prearranged location, where she waited for the police.

At approximately 1:30 A.M. , multiple uniformed officers responded in marked cruisers. Patty informed them that she was unsure if the defendant "had the Glock in [his] vehicle or in his possession," and consented to a protective sweep of the apartment.

The officers formed a contact team and entered the apartment building. An officer used a cellular telephone to call the defendant, and requested that he step outside. The defendant complied. He said that he "had gone out drinking" before "coming home" to Tewksbury. He also acknowledged that he did not have a Massachusetts firearm license. Instead, he produced a New Hampshire firearm license. The defendant said that he had a Glock 43 (a nine millimeter pistol) in the trunk of his vehicle. He consented to a search of the vehicle, during which officers located the firearm and ammunition.

At the scene, Patty requested an emergency protection order under G. L. c. 209A. A judge issued the order, which was served on the defendant. Pursuant to the order, officers confiscated the defendant's firearm and ammunition for safe keeping. While they were doing so, the defendant commented that he "had connections" and would regain possession of the Glock. He also said that the protection order "won't stick." The defendant was not arrested. Rather, he was placed in protective custody when, after he failed multiple sobriety tests, officers determined that he would be unable to drive safely from the scene.

As a result of the restraining order, the Atkinson, New Hampshire, police chief revoked the defendant's New Hampshire firearm license.

Criminal complaints against the defendant ultimately were filed; he moved to dismiss the complaints. At a hearing on the motion, the defendant asserted an affirmative defense predicated on his by-then-revoked New Hampshire firearm license. In addition, he maintained that he was a New Hampshire resident who had been traveling "in or through the Commonwealth" at the time of the domestic dispute. The judge noted, however, that the defendant's residency status was a disputed issue of fact that could not be decided on a motion to dismiss. The judge denied the defendant's motion and found probable cause to believe the defendant was a resident of the Commonwealth and had been living with Patty in Tewksbury while unlawfully possessing a firearm. We discern no error in the judge's decision.

b. Massachusetts firearm license. In his motion to dismiss, the defendant raised both facial and as-applied challenges to the constitutionality of G. L. c. 269, § 10 (a ). On appeal, he pursues only a facial challenge, and that only summarily.⁵

"A facial challenge is an attack on a statute itself as opposed to a particular application." Los Angeles v. Patel, ––– U.S. ––––, 135 S.Ct. 2443, 2449, 192 L.Ed.2d 435 (2015). "Facial challenges are disfavored" because they "run contrary to the fundamental principle of judicial restraint" and "threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution" (citation omitted). See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). See also Hightower v. Boston, 693 F.3d 61, 76-77 (1st Cir. 2012). A facial challenge fails when the statute at issue has a "plainly legitimate sweep" (citation omitted). Washington State Grange, supra at 449, 128 S.Ct. 1184.

General Laws c. 269, § 10 (a ), provides for punishment of any individual who, "except as provided or exempted by statute, knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm, loaded or unloaded."

The statute defines a number of categories of persons who are "exempted by statute" from punishment under G. L. c. 269, § 10 (a ). Exemptions apply to new residents of the Commonwealth, see G. L. c. 140, § 129C (j ) ; holders of a Massachusetts firearm license, see G. L. c. 140, §§ 131 (a ), (b ), 131F ; holders of certain firearm licenses issued by other jurisdictions, see G. L. c. 140, §§ 129C (u ), 131G ; those with firearm identification (FID) cards who possess firearms in their residences or places of business, see G. L. c. 269, § 10 (a ) (1) ; G. L. c. 140, § 129C ; and certain nonresidents traveling in or through the Commonwealth, see G. L. c. 140, §§ 129C (h ), 131F, 131G. In addition, exemptions exist for specific types of firearms, certain persons, and specified uses.⁶

The defendant contends that the statutory exemption for an individual who possesses a Massachusetts firearm license, see G. L. c. 140, §§ 131 (a ), (b ), 131F ; G. L. c. 269, § 10 (a ) (2), (3), on its face violates Federal due process protections and rights under the Second Amendment to the United States Constitution, because, to invoke the exemption, a defendant must proffer evidence of a Massachusetts firearm license. The defendant argues that the initial burden of production as to a license, or lack thereof, should rest on the Commonwealth because "lack...