Commonwealth v. Marrero

• Decision Date: 06 December 2019
• Docket Number: SJC-12782
• Citation: 484 Mass. 341,141 N.E.3d 420
• Parties: COMMONWEALTH v. Francisco MARRERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 341

141 N.E.3d 420

COMMONWEALTH

v.Francisco MARRERO.

SJC-12782

Supreme Judicial Court of Massachusetts, Middlesex..

December 6, 2019.

March 20, 2020.

Jon R. Maddox, N. Waltham, for the defendant.

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

David Rassoul Rangaviz, Committee for Public Counsel Services, & Michelle Huynh, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

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

GAZIANO, J.

The defendant discharged a firearm twice into the air. Police were unable to find the weapon or any projectiles. A Superior Court jury convicted the defendant of unlawful possession of a firearm, unlawful possession of a loaded firearm, and discharging a firearm within 500 feet of a building. The defendant argues that there was insufficient evidence that he had knowledge of the physical characteristics of the firearm that subjected it to regulation, and accordingly, the convictions must be vacated.¹ We conclude that, in order to establish unlawful possession of a firearm, the Commonwealth must prove only that the defendant knew the weapon was a firearm in the conventional sense of the word. The defendant need not have had knowledge of the specific physical characteristics that made the weapon a firearm according to statute.

The defendant argues further that there was insufficient evidence to establish that the weapon did in fact meet the statutory definition of a firearm, and that two out-of-court identifications were impermissibly suggestive. We conclude otherwise. The evidence was sufficient for the jury to find that the weapon met the statutory definition of a firearm, and the identification procedures were not impermissibly suggestive.²

Background. We recite the facts the jury could have found in the light most favorable to the Commonwealth, reserving some details for later discussion. See Commonwealth v. Palermo, 482 Mass. 620, 621, 125 N.E.3d 733 (2019).

Nathaniel Perez, David Semprit, Vanessa Dubey, and Ricky Alcantara attended a party and left together in Perez's automobile. They drove to a hotel, where another party was underway. Outside the hotel, they encountered the defendant, who got into the vehicle. The group then drove to the home of a friend of Dubey's, and some or all of the vehicle's occupants got out. The defendant took a firearm that belonged to Perez from the vehicle and discharged it twice into the air.

Police officers responded to a report of shots fired in the area. They did not recover the weapon or any projectiles, but they did find two shell casings imprinted with the characters "9-M-M." An officer testified that the casings were "consistent with shell casings that would be left behind after a piece of ammunition had been fired."

Police obtained a surveillance video recording of the intersection where the incident took place. The recording showed a man getting out of a vehicle, raising an object in the air, and two flashes of light emitting from the object. Based on the recording, police interviewed Dubey, Perez, Semprit, and Alcantara. An officer showed Dubey an array of eight photographs, one of which was the defendant. She identified the defendant as "the guy with the gun." Police later interviewed Semprit and showed him the same photographic array. He identified the defendant as the person who had discharged the weapon.

Semprit and Perez each testified at trial that the defendant had discharged the weapon. Additionally, the surveillance video recording was introduced in evidence. Dubey identified the man who appeared to discharge a firearm as the defendant.³ A Superior Court jury convicted the defendant of unlawful possession of a firearm, unlawful possession of a loaded firearm, and discharging a firearm within 500 feet of a building. The defendant appealed from his convictions, and we transferred the case from the Appeals Court on our own motion.

Discussion. 1. Unlawful possession of a firearm. General Laws c. 269, § 10(a ), states that "[w]hoever, except as provided or exempted by statute, knowingly has in his possession ... a firearm, loaded or unloaded, as defined in [ G. L. c. 140, § 121,] ... shall be punished ...." A firearm is defined as a "weapon ... from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than [sixteen] inches." G. L. c. 140, § 121.

The defendant argues that his conviction of unlawful possession of a firearm required proof that he knew the facts that caused the weapon to meet the statutory definition of a firearm, and that the evidence of such knowledge in this case was insufficient.

Our objective in interpreting a statute "is to ascertain and effectuate the intent of the Legislature." Commonwealth v. Newberry, 483 Mass. 186, 192, 131 N.E.3d 230 (2019), citing Commonwealth v. Curran, 478 Mass. 630, 633, 88 N.E.3d 862 (2018). To do so, "we look to the words of the statute, ‘construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.’ " Commonwealth v. J.A., 478 Mass. 385, 387, 85 N.E.3d 684 (2017), quoting Boston Police Patrolmen's Ass'n, Inc. v. Boston, 435 Mass. 718, 720, 761 N.E.2d 479 (2002).

Prior to 1974, the crime of unlawful possession of a firearm did not contain a mandatory minimum punishment for individuals who previously had not been convicted of a felony. See G. L. c. 269, § 10(a ), as amended through St. 1973, c. 588. Nor did it contain a mens rea requirement. See id. In 1974, the Legislature enacted the so-called Bartley-Fox legislation, which amended the statute to mandate a minimum punishment of one year of imprisonment. See Commonwealth v. Lemay, 11 Mass. App. Ct. 992, 992, 418 N.E.2d 633 (1981), citing G. L. c. 269, § 10, as amended by St. 1974, c. 649, § 2. In response to the change, and "mindful of ... the need to avoid possible constitutional doubts," (citation omitted), we interpreted the statute to contain an implied requirement that a defendant knew he or she possessed a firearm. See Commonwealth v. Jackson, 369 Mass. 904, 916, 344 N.E.2d 166 (1976). We later clarified the contours of this knowledge requirement, and held that the Commonwealth must prove the defendant knew that the weapon was a firearm "within the generally accepted meaning of that term." See Commonwealth v. Sampson, 383 Mass. 750, 762, 422 N.E.2d 450 (1981), and cases cited. See also Commonwealth v. Bacon, 374 Mass. 358, 361, 372 N.E.2d 780 (1978) ("the characteristics of a gun are obvious. Therefore, in gun cases, all an accused need know is that he [or she] is carrying a gun"); Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988, 459 N.E.2d 128 (1984), citing Sampson, supra at 762-763 & n.16, 422 N.E.2d 450 (where "a conventional firearm with its obvious dangers is involved, the Commonwealth need not prove that a defendant knows the exact capabilities or characteristics of the gun which make it subject to regulation").

In 1990, the Legislature added the word "knowingly" to the statute. See St. 1990, c. 511, § 2; Commonwealth v. Cornelius, 78 Mass. App. Ct. 413, 416 & n.3, 938 N.E.2d 892 (2010). The defendant argues that this insertion abrogated our holding in Sampson, 383 Mass. at 762, 422 N.E.2d 450. He bases his argument on Commonwealth v. Cassidy, 479 Mass. 527, 532, 96 N.E.3d 691 (2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 276, 202 L.Ed.2d 136 (2018), in which we examined the mens rea requirements for a violation of G. L. c. 269, § 10(m ). That statute provides for punishment of anyone who, without a license, "knowingly has in his [or her] possession ... a large capacity weapon" (as defined in G. L. c. 140, § 121 ). See G. L. c. 269, § 10(m ). We stated that "courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element." Cassidy, supra at 534, 96 N.E.3d 691, quoting Flores–Figueroa v. United States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). We therefore concluded that the Commonwealth must prove that the defendant was aware of the facts that caused the weapon to meet the statutory definition of a large capacity weapon. Cassidy, supra at 536, 96 N.E.3d 691.

The defendant argues that this principle of statutory interpretation also should be applied to G. L. c. 269, § 10(a ), which is worded similarly: "Whoever ... knowingly has in his possession ... a firearm, loaded or unloaded, as defined in [ G. L. c. 140, § 121,] ... shall be punished. ..." But the situation here is distinguishable for several reasons. First, the history of G. L. c. 269, § 10(a ), demonstrates that the Legislature did not intend to require knowledge that the weapon met the statutory definition. From 1984 through the present,⁴ the Criminal Model Jury Instructions for Use in the District Court have stated that a defendant need know only that the weapon is a firearm within the common meaning of the word.⁵ Since 1990, the Legislature repeatedly has amended G. L. c. 269, § 10, and has not demonstrated a clear intent to change the rule articulated in Sampson, 383 Mass. at 762, 422 N.E.2d 450. See Commonwealth v. Callahan, 440 Mass. 436, 441-442, 799 N.E.2d 113 (2003) (we presume that Legislature is aware of decisions of this court and previous legislation and would enact changes if it disagreed with our interpretation of its intent); St. 1996, c. 20; St. 1996, c. 151, §§ 487, 488; St. 1998, c. 180, §§ 68-70; St. 2006, c. 48, §§ 5-7; St. 2014, c. 284, §§ 89, 90, 92.

Moreover, the rule suggested by the defendant would be unworkable and counterproductive. See Ciani v. MacGrath, 481 Mass. 174, 178, 114 N.E.3d 52 (2019) ("we will not adopt a literal construction of a statute if the consequences of doing so are absurd or unreasonable" [quotation and citation omitted]...