Commonwealth v. Kelly

• Decision Date: 30 January 2020
• Docket Number: SJC-12710
• Citation: 138 N.E.3d 364,484 Mass. 53
• Parties: COMMONWEALTH v. Michael R. KELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 53

138 N.E.3d 364

COMMONWEALTH

v.Michael R. KELLY.

SJC-12710

Supreme Judicial Court of Massachusetts, Middlesex..

Argued October 2, 2019.

Decided January 30, 2020.

Edward R. Molari, Boston, for the defendant.

Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

Keith G. Langer, for Commonwealth Second Amendment, Inc., amicus curiae, submitted a brief.

Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

While showing a firearm to one of his friends as a potential purchaser of the weapon, the defendant accidently discharged it in a bedroom, shooting his friend through the hand. The defendant challenges his convictions of discharging a firearm within 500 feet of a building, in violation of G. L. c. 269, § 12E, and unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (h ). In a matter of first impression, the defendant argues that G. L. c. 269, § 12E, includes a mens rea requirement for the element of discharge. The defendant also argues that the trial judge erred in declining to instruct the jury on G. L. c. 140, § 129C (m ), which exempts from licensing requirements the "temporary holding, handling or firing of a firearm for examination, trial or instruction in the presence of a holder of a license to carry firearms." We conclude that G. L. c. 269, § 12E, does not require any mens rea as to the element of discharge. Because the evidence in this case did not support a finding that the defendant's possession was temporary and in the presence of a holder of a license to carry, we conclude as well that the judge did not abuse his discretion in declining to instruct on an exemption for temporarily holding a firearm.¹

1. Background. We summarize the facts the jury could have found, reserving some details for later discussion. In January of 2013, the defendant was living, at least part of the time, at his father's home in Massachusetts. The defendant also spent part of his time in Maine, where he had a driver's license. The defendant owned a Springfield XD .40 caliber semiautomatic handgun; when in his father's house, the firearm was kept inside a case in a hallway closet. The defendant's father had a license to carry a firearm in Massachusetts, but the defendant did not have a license to carry in Massachusetts or a firearm identification card; he did meet the minimal requirements for possession of a firearm in Maine, where a license to own a firearm is not required.

At some point on January 20, 2013, the defendant took the case, with the firearm in it, out of the hallway closet and brought it into a bedroom. He unlocked and opened the case. Later that day, the victim and several other of the defendant's friends came to the house to watch a football game on television. The defendant hoped to sell the firearm to the victim, who a short time previously had acquired a license to carry a firearm in the Commonwealth.

The two men went into the bedroom, where the defendant demonstrated various features of the firearm. He handed the firearm to the victim, who soon handed it back. The defendant and a police lieutenant both testified that the design of the firearm required the user to depress the trigger to disassemble the weapon. Believing that the chamber was empty, the defendant depressed the trigger in order to disassemble the firearm; this discharged a bullet, which struck the victim in the hand.

The defendant was charged with unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (h ) ; possession of a high capacity feeding device, in violation of G. L. 269, § 10 (m ) ; discharging a firearm within 500 feet of a building, in violation of G. L. c. 269, § 12E ; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b ) ; and two counts of witness intimidation (of the victim and the investigating officer), in violation of G. L. c. 268, § 13B.² At trial, the defendant requested the jury be instructed on the statutory licensing exemption set forth in G. L. c. 140, § 129C (m ), which permits "[t]he temporary holding, handling or firing of a firearm for examination, trial or instruction in the presence of a holder of a license to carry firearms, or the temporary holding, handling or firing of a rifle or shotgun for examination, trial or instruction in the presence of a holder of a firearm identification card, or where such holding, handling or firing is for a lawful purpose." The judge declined to give such an instruction. The defendant's motion for a required finding of not guilty at the close of the Commonwealth's case was denied. A District Court jury convicted the defendant of unlawful possession of a firearm, discharging a firearm within 500 feet of a building, and one count of witness intimidation (the investigating officer). The jury acquitted him of assault and battery by means of a dangerous weapon and the other count of witness intimidation (the victim). The defendant renewed his motion for a required finding of not guilty; the judge again denied the motion.

The defendant filed a postconviction motion for a required finding of not guilty on the charges of discharging a firearm and witness intimidation. See Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). The Commonwealth conceded that, under Commonwealth v. Muckle, 478 Mass. 1001, 1003, 82 N.E.3d 1021 (2017), which had been decided while the defendant's appeal was pending, the District Court lacked jurisdiction over the charge of witness intimidation and agreed to dismiss that charge. The defendant argued that G. L. c. 269, § 12E, includes a requirement that the discharge be done knowingly, and that there was insufficient evidence to show knowledge. The judge denied the motion because he concluded that G. L. c. 269, § 12E, does not contain any mens rea requirement for the act of discharge.

The defendant appealed from the denial of the motion for a required finding and from his convictions. We transferred the consolidated appeal from the Appeals Court on our own motion.

2. Discussion. a. Mens rea for discharging a firearm with 500 feet of a building. The defendant argues that G. L. c. 269, § 12E, requires proof that he discharged the firearm knowingly. He maintains that the evidence was insufficient to establish that he knowingly discharged the firearm and that the judge therefore erred in denying his motion for a required finding.

In a claim challenging the sufficiency of the evidence, we review the facts in the light most favorable to the Commonwealth. Commonwealth v. Brown, 479 Mass. 600, 608, 97 N.E.3d 349 (2018), citing Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). The undisputed evidence in this case established that the defendant discharged the weapon, but that he did not do so knowingly or intentionally. Therefore, the question before us is whether G. L. c. 269, § 12E, contains the requirement that the discharge of the firearm be knowing.³

In the mid-Nineteenth Century, legislatures in the United States began imposing strict liability for certain offenses in the areas of public health and safety. See Morissette v. United States, 342 U.S. 246, 256-257, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (collecting cases from Nineteenth and Twentieth Centuries); Commonwealth v. Mixer, 207 Mass. 141, 142–143, 93 N.E. 249 (1910) (same). These offenses came to be known as "public welfare offenses." See Morissette, supra at 255, 72 S.Ct. 240. Public welfare statutes "[t]ypically ... regulate potentially harmful or injurious items." Staples v. United States, 511 U.S. 600, 607, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Rather than criminalizing conduct that already has resulted in harm, these statutes criminalize behavior that "create[s] the danger or probability of it which the law seeks to minimize." Morissette, supra at 255–256, 72 S.Ct. 240.

This court repeatedly upheld strict liability statutes in early cases involving the sale of intoxicating liquor, see, e.g., Commonwealth v. Goodman, 97 Mass. 117, 119 (1867) ; the sale of adulterated food, see, e.g., Commonwealth v. Smith, 103 Mass. 444, 445 (1869) ; and violations of motor vehicle laws, see, e.g., Commonwealth v. Pentz, 247 Mass. 500, 509, 143 N.E. 322 (1924). In more recent years, we have continued to uphold the power of the Legislature to create strict liability, public welfare offenses. See, e.g., Commonwealth v. Tart, 408 Mass. 249, 265, 557 N.E.2d 1123 (1990) (landing raw fish for sale without permit).

We first address the question of statutory interpretation: whether G. L. c. 269, § 12E, contains an implied mens rea requirement for the element of discharge. We then turn to a consideration of whether imposing strict liability for the element of discharge would infringe on constitutional protections.

i. Statutory interpretation. "Our primary duty in interpreting a statute is to effectuate the intent of the Legislature in enacting it" (quotation and citation omitted). Commonwealth v. Curran, 478 Mass. 630, 633, 88 N.E.3d 862 (2018). "[W]here the language of a statute is plain and unambiguous, it is conclusive as to the legislative intent" (citation omitted). Commonwealth v. Wassilie, 482 Mass. 562, 573, 125 N.E.3d 682 (2019). When, as here, the language is unclear, we "must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense." See Commonwealth v. Morgan, 476 Mass. 768, 777, 73 N.E.3d 762 (2017), quoting Seideman v. Newton, 452 Mass. 472, 477, 895 N.E.2d 439 (2008). We examine the "cause of [the statute's] enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Wallace W. v. Commonwealth, 482 Mass. 789, 793, 128 N.E.3d 581 (2019), quoting Adoption of Daisy, 460 Mass. 72, 76–77, 948 N.E.2d 1239 (2011).

We generally presume that criminal liability will not be imposed without some level of mens rea. See ...