Commonwealth v. Paul

• Decision Date: 17 October 2019
• Docket Number: No. 18-P-720,18-P-720
• Citation: 96 Mass.App.Ct. 263,132 N.E.3d 544
• Parties: COMMONWEALTH v. James R. PAUL.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 263

132 N.E.3d 544

COMMONWEALTH

v.James R. PAUL.

No. 18-P-720

Appeals Court of Massachusetts, Essex..

Argued April 5, 2019

Decided October 17, 2019

Alison R. Bancroft, for the defendant.

Kayla M. Johnson, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Maldonado, & Sacks, JJ.

AGNES, J.

The principal issue in this case is whether the law that exempts a "new resident moving into the commonwealth" from the requirement of a license to possess a firearm "for 60 days after such ... entry into the commonwealth," G. L. c. 140, § 129C (j ), applies to the circumstances of this case. The defendant, James R. Paul, appeals from his convictions of possession of a firearm without a license, in violation of G. L. c. 269, § 10 (a ) ; possession of ammunition without a firearm identification card (FID), in violation of G. L. c. 269, § 10 (h ) (1) ; and possession of a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n ).¹ For the following reasons, we conclude that the exemption does not apply. Thus, we affirm the convictions, except for the loaded firearm conviction, which we vacate on a separate ground and remand.

On August 5, 2015, at approximately 6:58 A.M. , Trooper Michael O'Brien responded to a radio broadcast of a pedestrian, the defendant, walking southbound on Interstate Highway 93 approximately six miles south of the New Hampshire border. The trooper located the defendant walking between the guardrail and the tree line. The trooper pulled over into an emergency cutout in the road ahead of him and told the defendant that he could not walk on the highway. In the ensuing conversation, the defendant told the trooper that he was coming from New Hampshire and trying to get to a gasoline (gas) station a few exits south of Interstate Highway 495 to meet a friend. The defendant stated that he was homeless and that, although he "still travels the country," "his end goal was to get to Michigan." He appeared to the trooper as if he had camped the night before because he looked disheveled, wore unclean clothes, and "hadn't bathed in a couple of days." The trooper offered to drive the defendant to the gas station he was walking to, and the defendant accepted the invitation.

The trooper asked the defendant if he had any weapons, to which the defendant replied in the affirmative, pointing to his backpack, stating that "his uniform" was in it and that he worked for Homeland Security. The trooper repeated his question, and the defendant "stated that there was a firearm in the bag." The defendant complied with the trooper's instruction to step back. The defendant directed the trooper to where in the backpack the firearm was located. The trooper located a Ruger SR9 semiautomatic pistol in its holster, loaded with five rounds of ammunition, and a second fully loaded magazine, and secured the weapon. Other items in the bag included an active New Hampshire license to carry a firearm, a New Hampshire driver's license, the defendant's passport, a water purification kit, and other items indicative of someone camping. The defendant did not produce any law enforcement credentials or a Massachusetts license to carry a firearm.

Trooper O'Brien advised the defendant of his Miranda rights. The defendant stated that he could not speak with the trooper about his clearance but would speak with the trooper's supervisor. The defendant was taken into custody and driven to the Andover State police barracks, where he spoke with the station commander. The defendant reiterated that he worked for "Homeland" but declined to speak further. At booking, Trooper O'Brien advised the defendant of the charges against him, and the defendant replied that "the firearm was for life and property."

Prior to trial, the defendant filed a motion to dismiss the charges, which, following a hearing on the motion, the court denied on February 10, 2016. Also prior to trial, the defendant filed a "Notice of Intent to Rely Upon Exemption," referring in particular to G. L. c. 140, § 129C (j ), which provides in part that "any new resident moving into the commonwealth" is exempt from the firearm licensing laws for sixty days after such person enters into the Commonwealth.

A two-day jury trial commenced on July 27, 2017. As to the defendant's request to present the § 129C (j ) exemption as a defense, the judge indicated that, based on the defendant's proffer, she was not yet persuaded that there was sufficient evidence for her to instruct the jury on that defense. Following the close of evidence, the defendant filed a motion for a required finding of not guilty, which, after a hearing, was denied. The court also denied the defendant's request to instruct the jury on the new resident exemption, to which the defendant objected. The jury found the defendant guilty on all counts.

Discussion. 1. The G. L. c. 269, § 10 ( n ) , conviction. a. Lack of instruction on knowledge. The defendant argues, and the Commonwealth concedes, that the conviction of unlawful possession of a loaded firearm in violation of G. L. c. 269, § 10 (n ), must be reversed because the judge failed to instruct the jury that proof that the defendant was aware that the firearm was loaded is an essential element of the offense. In Commonwealth v. Brown, 479 Mass. 600, 608, 97 N.E.3d 349 (2018), the Supreme Judicial Court held that in order to convict a person of a § 10 (n ) violation the Commonwealth must prove that the defendant had knowledge that the firearm was loaded. Although Brown was decided after the trial in this case, it has application to this case because the court was interpreting a statute enacted before the conduct of the defendant that is the basis for the charge. See Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 587, 969 N.E.2d 1118 (2012) ("In general, when we construe a statute, we do not engage in an analysis whether that interpretation is given retroactive or prospective effect; the interpretation we give the statute usually reflects the court's view of its meaning since the statute's enactment"). Despite the absence of an objection by the defendant, the omission of an instruction that permits the jury to convict without finding an essential element of an offense creates a substantial risk of a miscarriage of justice unless we can fairly say that "either the element at issue can be ‘ineluctably inferred’ from the evidence such that the jury were ‘required to find’ it, Commonwealth v. Azar, 435 Mass. 675, 688, 760 N.E.2d 1224 (2002), or the jury's verdicts on the other counts on which the defendant was convicted compel the conclusion they ‘necessarily found’ the element on which they were not instructed, Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847, 109 N.E.3d 1091 (2018)." Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 412, 126 N.E.3d 118 (2019). Here, there was no direct evidence that the defendant knew the firearm contained in his backpack was loaded, and the circumstantial evidence of his knowledge did not compel such a finding.

We also consider that, following the submission of its brief, the Commonwealth filed a written "notice of withdrawal of argument." The Commonwealth explained that in light of our decision in Commonwealth v. Resende, 94 Mass. App. Ct. 194, 202-203, 113 N.E.3d 347 (2018), it could no longer argue that merely because there was sufficient evidence that the defendant knew the firearm was loaded, the omission of an instruction on such knowledge as an element could not have created a substantial risk of a miscarriage of justice. We attach significance to the Commonwealth's concession but reach the same conclusion based on our independent assessment of the evidence. See Commonwealth v. Poirier, 458 Mass. 1014, 1015, 935 N.E.2d 1273 (2010), quoting Young v. United States, 315 U.S. 257, 258-259, 62 S.Ct. 510, 86 L.Ed. 832 (1942) ("Confessions of error are, of course, entitled to and given great weight," but the court's "judicial obligations compel us to examine independently the errors confessed").

b. Sufficiency of the evidence as to the defendant's knowledge. In reviewing the sufficiency of the evidence, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Based on the evidence that the defendant was carrying the firearm in a backpack on his person, that he knew precisely where in the backpack it could be found, that he told the trooper that he possessed the firearm for "life and property," that he appeared to have been living outdoors, and that he had a fully loaded magazine in the same section of the backpack where the firearm was stored, we conclude that a reasonable jury would be warranted in finding beyond a reasonable doubt that the defendant had knowledge that his firearm was loaded. See Resende, 94 Mass. App. Ct. at 199-201, 113 N.E.3d 347.

2. The applicability of the "new resident" exemption to the licensing requirement. A person such as the defendant, who does not have a valid Massachusetts firearm license, see G. L. c. 140, § 129C (j ), and who knowingly has possession of a firearm, whether loaded or unloaded, not in his home or business, is guilty of a felony unless at least one of several exemptions is applicable. See G. L. c. 269, § 10 (a ) ; Commonwealth v. Harris, 481 Mass. 767, 772, 119 N.E.3d 1158 (2019).² The exemptions are considered "affirmative defenses," which means that the absence of an exemption is not an element of a § 10 (a ) violation. Harris, 481 Mass. at 772, 119 N.E.3d 1158. "Because it is an affirmative defense, a defendant has the initial burden of production" as to any exemption. Id. The Commonwealth assumes the burden of persuading the finder of fact that the exemption does not...