Commonwealth v. Harris

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12607
COMMONWEALTH vs. BRIAN K. HARRIS.
Middlesex. November 5, 2018. - March 29, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
JJ.
Firearms. License. Constitutional Law, Right to bear arms,
Right to travel. Practice, Criminal, Instructions to jury,
Conduct of prosecutor.
Complaint received and sworn to in the Lowell Division of
the District Court Department on May 1, 2017.
A motion to dismiss was heard by Barbara Savitt Pearson,
J., and the cases were tried before James W. Coffey, J.
The Supreme Judicial Court granted an application for
direct appellate review.
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.
GAZIANO, J. This case concerns challenges to the firearms
2
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
1 Initially, the defendant also was charged with unlawful
possession of a large capacity weapon or large capacity feeding
device, in violation of G. L. c. 269, § 10 (m). The
Commonwealth did not proceed to trial on that charge. In
addition, the Commonwealth entered nolle prosequi with respect
to the charge of unlawful possession of a firearm in violation
3
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.
of G. L. c. 269, § 10 (h) (1). The conviction of unlawful
possession of ammunition in violation of G. L. c. 269,
§ 10 (h) (1), was placed on file, and the defendant was
sentenced to the mandatory minimum sentence of eighteen months'
incarceration for unlawful possession of a firearm in violation
of G. L. c. 269, § 10 (a).
2 The defendant did not appeal from his other convictions.
3 We acknowledge the amicus brief submitted by the Attorney
General.
4 A pseudonym.
4
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
5
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"
6
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
7
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, 135
S. Ct. 2443, 2449 (2015). "Facial challenges are disfavored"
5 Often, as here, those who do not apply for a Massachusetts
firearm license are not entitled to assert as-applied challenges
to the licensing laws because they cannot demonstrate that they
sought, and were denied, a Massachusetts firearm license. See
Commonwealth v. Johnson, 461 Mass. 44, 58 (2011). The defendant
gave no indication that he had applied for a Massachusetts
firearm license. Nor has he argued that applying for a license
would have been futile. See Hamilton v. Pallozzi, 848 F.3d 614,
620-621 (4th Cir.), cert. denied, 138 S. Ct. 500 (2017).
Therefore, he would not have been able to proceed on an as-
applied challenge. See Commonwealth v. Cassidy, 479 Mass. 527,
539 n.10, cert. denied, 139 S. Ct. 276 (2018); Commonwealth v.
Allen, 474 Mass. 162, 174 (2016); Commonwealth v. Powell, 459
Mass. 572, 590 (2011), cert. denied, 565 U.S. 1262 (2012).
8
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
(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.
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
9
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 of a license" is an element of G. L. c. 269,
§ 10 (a), rather than an affirmative defense to the offense. On
this basis, the defendant asks this court to reverse the denial
of his motion to dismiss and, accordingly, his conviction under
G. L. c. 269, § 10 (a).
This court previously has rejected similar arguments. We
have long held that possession of a Massachusetts firearm
license is an affirmative defense to G. L. c. 269, § 10 (a), and
not an element of that offense. See Commonwealth v. Allen, 474
Mass. 162, 174 (2016); Commonwealth v. Gouse, 461 Mass. 787,
6 See G. L. c. 140, §§ 121, 129C (a)-(u), 131, 131F, 131G;
G. L. c. 269, § 10 (a) (1)-(4).
10
803-805 (2012); Commonwealth v. Powell, 459 Mass. 572, 582
(2011), cert. denied, 565 U.S. 1262 (2012). Because it is an
affirmative defense, a defendant has the initial burden of
production as to possession of a Massachusetts firearm license.
See Gouse, supra at 802. "If such evidence is presented,
however, the burden is on the prosecution to persuade the trier
of facts beyond a reasonable doubt that the defense does not
exist" (citation omitted). Id. See G. L. c. 278, § 7.7 This
system comports with due process, Commonwealth v. Jefferson, 461
Mass. 821, 834-835 (2012), and the Second Amendment. See
Commonwealth v. Eberhart, 461 Mass. 809, 813 (2012); Gouse,
supra at 801; Commonwealth v. Loadholt, 460 Mass. 723, 727
(2011).
Moreover, the defendant's argument cannot redress his
grievance, i.e., the denial of his motion to dismiss. As noted,
he argues that "the prosecution must prove non-licensure" as an
element of G. L. c. 269, § 10 (a). It was undisputed, however,
7 In relevant part, G. L. c. 278, § 7, states that "[a]
defendant in a criminal prosecution, relying for his
justification upon a license . . . shall prove the same; and,
until so proved, the presumption shall be that he is not so
authorized." This court has said that "[a]lthough the language
of § 7 suggests that the defendant must shoulder the entire
burden of proof (i.e., the burden of production and the burden
of persuasion) as discussed, we have interpreted it only to
impose the burden of production on the defendant, maintaining
the ultimate burden of disproving a properly raised affirmative
defense on the prosecution." Commonwealth v. Gouse, 461 Mass.
787, 807 (2012).
11
that the defendant lacked a Massachusetts firearm license. He
told police that he did not have a Massachusetts firearm
license, and agreed in his memorandum in support of his motion
to dismiss, as well as at the hearing on that motion, that he
lacked such a license. In his appellate brief, the defendant
asserts that he "did not have a Massachusetts firearms license."
Therefore, even if licensure were an element of G. L. c. 269,
§ 10 (a), there was no doubt that the defendant lacked a
Massachusetts firearm license. The judge did not err in denying
the motion to dismiss.
c. Traveling in or through the Commonwealth. General Laws
c. 140, § 129C (h), establishes a statutory exemption that may
be raised as an affirmative defense to an alleged violation of
G. L. c. 269, § 10. See G. L. c. 269, § 10 (a) (4). Under
G. L. c. 140, § 129C (h), nonresidents may travel "in or through
the commonwealth" while in "[p]ossession of rifles and shotguns
and ammunition," provided that the "rifles or shotguns are
unloaded and enclosed in a case."
In his memorandum in support of his motion to dismiss, and
at the motion hearing, the defendant argued that he was a
resident of New Hampshire who "fit[] precisely within the class
of exempted persons . . . set forth" in G. L. c. 140,
§ 129C (h). The judge determined, however, that there was no
probable cause to believe that the defendant was traveling in or
12
through the Commonwealth. Rather, she found probable cause to
believe that the defendant was living in the Commonwealth with
his girlfriend.8
On appeal, the defendant adopts a new and different
argument. He contends that G. L. c. 269, § 10 (a), and G. L.
c. 140, § 129C (h), are facially unconstitutional because, taken
together, they violate the right to interstate travel, the right
to equal protection, and rights guaranteed by the Second
Amendment, as they prohibit a nonresident from traveling in or
through the Commonwealth with a handgun, unless the nonresident
first obtains a Massachusetts firearm license. Therefore, the
defendant argues, the judge erred in denying the motion to
dismiss.
The defendant's arguments are unavailing. On appeal, he
does not explain how G. L. c. 269, § 10 (a), and G. L. c. 140,
§ 129C (h), act together to prohibit nonresidents from traveling
with handguns in or through the Commonwealth. As indicated, he
provided no such explanation below. Nor does he address on
appeal the language of G. L. c. 140, § 131G, under which a
nonresident of Massachusetts, who is a resident of the United
8 As discussed, G. L. c. 140, § 129C (h), exempts
nonresidents who are traveling in or through the Commonwealth
with rifles and shotguns. There is no indication that the
defendant ever possessed a rifle or a shotgun in the
Commonwealth. Accordingly, G. L. c. 140, § 129C (h), is
inapplicable to these facts.
13
States, and who possesses a firearm permit or license issued by
a jurisdiction that prohibits licensure of felons and those
convicted of certain narcotics offenses, "may carry a pistol or
revolver in or through" Massachusetts for a number of purposes.
In any event, because the defendant did not raise this argument
below, it is waived. See Mass. R. Crim. P. 13 (a) (2), as
appearing in 442 Mass. 1516 (2004). See also Commonwealth v.
Alexis, 481 Mass. 91, 101 (2018); Commonwealth v. Bettencourt,
447 Mass. 631, 633 (2006).
d. New Hampshire firearm license. The defendant argues
that, at the time police took the Glock for "safekeeping," he
possessed a valid New Hampshire firearm license that allowed him
to carry firearms in the Commonwealth notwithstanding any
Massachusetts firearms provisions. The United States Supreme
Court has said, however, that the full faith and credit clause9
"does not compel a state to substitute the statutes of other
states for its own statutes dealing with a subject matter
concerning which it is competent to legislate" (quotation and
citation omitted). Baker v. General Motors Corp., 522 U.S. 222,
232 (1998). In our Federal system, "each state is permitted to
9 Article IV, § 1, of the United States Constitution states,
"Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof."
14
create its own laws so long as they do not run afoul of the
Constitution, federal laws, and treaties." Hamilton v.
Pallozzi, 848 F.3d 614, 628 (4th Cir.), cert. denied, 138 S. Ct.
500 (2017). See art. VI, cl. 2, of the United States
Constitution.
At the time police discovered the defendant's firearm, a
New Hampshire statute allowed a New Hampshire licensee to "carry
a loaded pistol or revolver in [that] state."10 See N.H. Rev.
Stat. Ann. § 159:6. Although the Commonwealth afforded
exceptions to nonresidents who possessed certain firearm and
hunting licenses issued by other jurisdictions, see G. L.
c. 140, §§ 129C (f), 131G, and allowed nonresidents to obtain
temporary firearm licenses, see G. L. c. 140, § 131F, no statute
in the Commonwealth granted full reciprocity to holders of New
Hampshire firearm licenses. Similarly, when New Hampshire's
licensing requirement was in effect, the statute did not provide
reciprocity to holders of Massachusetts firearm licenses. See
N.H. Rev. Stat. Ann. § 159:6-d.
The privilege to conceal and carry a loaded pistol or
revolver that was conferred by New Hampshire's firearm licensing
10In 2017, New Hampshire repealed its licensure
requirement, see 2017 N.H. Laws § 1:1, effective Feb. 22, 2017;
this allowed its residents to conceal and carry loaded pistols
and revolvers in New Hampshire without a license. See N.H. Rev.
Stat. Ann. § 159:6.III.
15
statute, N.H. Rev. Stat. Ann. § 159:6, is conferred in the
Commonwealth through a "Class A" license, the issuance of which
is subject to limitations for certain classes of persons, such
as convicted felons, substance abusers, and the mentally ill.
See G. L. c. 140, § 131 (a), (d).11 See, e.g., Chief of Police
of Worcester v. Holden, 470 Mass. 845, 853 (2015); Jefferson,
461 Mass. at 830; Loadholt, 460 Mass. at 726 & n.6. A New
Hampshire firearm license was available to any "suitable
person." See N.H. Rev. Stat. Ann. § 159:6(I)(a).
Ultimately, this matter concerns different jurisdictions
making differing determinations about firearm licensing and
regulation. See Hamilton, 848 F.3d at 628 & n.15. The
Commonwealth is not required to substitute its statutes for
those of New Hampshire. See Pacific Employers Ins. Co. v.
Industrial Acc. Comm'n of Cal., 306 U.S. 493, 502 (1939) ("the
conclusion is unavoidable that the full faith and credit clause
does not require one state to substitute for its own statute,
applicable to persons and events within it, the conflicting
11We note that Federal law contemplates similar
restrictions on the possession and transport of firearms. See
18 U.S.C. § 922(g) ("It shall be unlawful for" felons,
fugitives, users or addicts of controlled substances, those with
mental illness, aliens, dishonorably discharged service members,
those subject to protection orders, and those convicted of
domestic violence to "possess" or "transport" interstate "any
firearm or ammunition"). See also District of Columbia v.
Heller, 554 U.S. 570, 626-627 (2008).
16
statute of another state").
The judge who denied the defendant's motion to dismiss
found probable cause to believe that the defendant had been
living in Massachusetts when police became aware of his firearm.
The facts available indicated that, at that point, the defendant
had been a resident of Massachusetts for several months.
Under Massachusetts requirements, a "new resident moving
into the commonwealth, with respect to any firearm . . . then in
his [or her] possession," may lawfully possess such firearms
"for [sixty] days," G. L. c. 140, § 129C (j), after which he or
she must obtain a Massachusetts firearm license in order to
possess the firearm outside the home or place of business.12 See
12In Commonwealth v. Wood, 398 Mass. 135, 137 (1986), this
court addressed whether G. L. c. 140, § 129C (j), served as an
exemption to the version of G. L. c. 269, § 10 (a), that was
then in effect. At that time, G. L. c. 269, § 10 (a), punished
those who "carrie[d]" firearms, and G. L. c. 140, § 129C (j),
exempted those who "possesse[d]" firearms. See Wood, supra; St.
1990, c. 511, §§ 2, 3. Therefore, this court concluded that
G. L. c. 140, § 129C (j), did not serve as an exemption to G. L.
c. 269, § 10 (a). See Wood, supra. General Laws c. 269,
§ 10 (a), was amended in 1990, however, to prohibit the unlawful
"possession" of a firearm. See St. 1990, c. 511, §§ 2, 3. The
purpose of the amendment was to "regulate the possession of
firearms . . . for the immediate preservation of the public
welfare." See St. 1990, c. 511. The amendment remains
applicable today. See G. L. c. 269, § 10 (a). Therefore, G. L.
c. 140, § 129C (j), which applies to the possession of firearms,
now serves as an exemption to G. L. c. 269, § 10 (a), which
prohibits the unlawful possession of firearms. See Commonwealth
v. Cornelius, 78 Mass. App. Ct. 413, 419 (2010) ("by satisfying
the exception set out in G. L. c. 140, § 129C[j], new
residents . . . satisfy the firearm exemption set out in G. L.
c. 269, § 10[a][4], for a limited period of time, without also
17
G. L. c. 140, § 131 (a), (b); G. L. c. 269, § 10 (a) (2). The
defendant could have applied for a Massachusetts firearm license
within the sixty-day period following his arrival in the
Commonwealth, but during more than three months of residency, he
chose not to do so. There was no error in the denial of the
motion to dismiss.
2. New trial. In the alternative, the defendant seeks a
new trial on the grounds of purportedly improper jury
instructions13 and the prosecutor's questioning of one of the
witnesses.
a. Jury instructions. The defendant argues that a new
trial is required because the judge denied his request for an
instruction on 18 U.S.C. § 926A, as well as because the judge
assertedly did not instruct on G. L. c. 269, § 10 (a) (1). This
latter instruction was not requested at trial, but in fact was
complying with the provisions of G. L. c. 140, § 131G").
13The defendant also contends that the Commonwealth
"misconstrued" the firearm-licensing statute during closing
argument by addressing a statutory exemption that was available
to a nonresident "passing through [the Commonwealth] with his
firearm." The defendant did not object at trial. Thus, we
review for a substantial risk of a miscarriage of justice. See
Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
General Laws c. 140, §§ 131F and 131G, allow nonresidents of the
Commonwealth to travel in or through Massachusetts with a pistol
or revolver, provided several conditions are met. The judge
instructed the jury as to both G. L. c. 140, §§ 131F and 131G.
The Commonwealth's closing argument did not misconstrue the
applicable statutory provisions. Therefore, the defendant's
argument is without merit.
18
given by the judge. The defendant contends further that the
instructions deprived him of an affirmative defense under G. L.
c. 140, § 129C (j), and potentially confused the jury. The
defendant did not object to the instructions at trial.
We evaluate the instructions provided to a jury "as a
whole, looking for the interpretation a reasonable juror would
place on the judge's words," and not in a hypermechanical manner
(citation omitted). See Commonwealth v. Vargas, 475 Mass. 338,
349 (2016).
i. Interstate transportation of firearms. Because the
defendant requested an instruction with respect to
18 U.S.C. § 926A, and objected when the request was denied, we
review for prejudicial error.14 See Commonwealth v. Okoro, 471
Mass. 51, 67 (2015). Under that analysis, we determine, first,
whether there was error and, if so, whether the error was
prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591
(2005). An error is not prejudicial when we can say with
confidence that it "did not influence the jury, or had but very
slight effect" (citation omitted). Commonwealth v. Brown, 456
Mass. 708, 725 (2010). On the other hand, if we are unable to
say "with fair assurance," and "after pondering all that
14The defendant argues also that 18 U.S.C. § 926A preempts
the Massachusetts firearms statutes. As the judge properly
denied the request for an instruction on 18 U.S.C. § 926A, we
need not reach this issue. See 18 U.S.C. § 927.
19
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error,"
then the error was prejudicial (citation omitted). See Allen,
474 Mass. at 168.
Pursuant to 18 U.S.C. § 926A, any person who is not
prohibited under Federal law from transporting, shipping, or
receiving a firearm
"shall be entitled to transport a firearm for any
lawful purpose from any place where he may lawfully
possess and carry such firearm to any other place
where he may lawfully possess and carry such firearm
if, during such transportation the firearm is
unloaded, and neither the firearm nor any ammunition
being transported is readily accessible or is directly
accessible from the passenger compartment of such
transporting vehicle."
The defendant maintains that 18 U.S.C. § 926A is applicable
here because, at the time his firearm was discovered by
Tewksbury police, he was a nonresident "in the midst of a trip"
from Londonderry, New Hampshire, to Atkinson, New Hampshire, "by
way of Tewksbury." The defendant points to no authority
supporting his interpretation of 18 U.S.C. § 926A, nor are we
aware of any.
This provision consistently has been construed to "allow[]
a person to transport a firearm and ammunition from one state
through a second state to a third state, without regard to the
second state's gun laws, provided that the traveler is licensed
to carry a firearm in both the state of origin and the state of
20
destination and that the firearm is not readily accessible
during the transportation." Revell v. Port Auth. of N.Y. &
N.J., 598 F.3d 128, 132 (3d Cir. 2010), cert. denied, 562 U.S.
1178 (2011). See 18 U.S.C. § 926A; Torraco v. Port Auth. of
N.Y. & N.J., 615 F.3d 129, 132 (2d Cir. 2010) (18 U.S.C. § 926A
"allows individuals to transport firearms from one state in
which they are legal, through another state in which they are
illegal, to a third state in which they are legal, provided that
several conditions are met"). See also Bieder v. United States,
662 A.2d 185, 188-189 (D.C. 1995) (where possession of firearm
is lawful in Virginia and New York, 18 U.S.C. § 926A warrants
instruction for defendant arrested in District of Columbia while
driving from Virginia to New York).
We decline to depart from the accepted understanding of
18 U.S.C. § 926A. Therefore, we consider whether an instruction
concerning that statute was warranted given the facts at trial.
From the time he moved to Tewksbury in late May 2015, until
September 12, 2015, the defendant possessed at least one handgun
in the Tewksbury apartment. As a new resident of the
Commonwealth, he was afforded sixty days in which to obtain a
Massachusetts FID card or firearm license. See G. L. c. 140,
§ 129C (j); G. L. c. 269, § 10 (a) (4). There is no indication
that the defendant did so, or attempted to do so, during this
period.
21
On September 11, 2015, the defendant placed a handgun in a
backpack and transported it from Tewksbury to a shooting range
in New Hampshire. He spent several hours at the range, and
thereafter "had a couple beers." After several hours of
drinking beer, the defendant drove to Londonderry, New
Hampshire, to deposit multiple firearms in a storage unit. He
then drove to Manchester, New Hampshire, where he dropped off a
friend. He returned to Tewksbury between 11:30 P.M. on
September 11 and 1 A.M. on September 12. Officers responded to
the scene at approximately 1:30 A.M. on September 12 and later
discovered the Glock in the trunk of the defendant's vehicle.
In sum, on the evening of September 11, 2015, the defendant
began his journey in the Commonwealth, he sojourned in New
Hampshire, and he returned to Massachusetts sometime late in the
evening on September 11 or in the early morning hours of
September 12. He did not transport a firearm "from one state
through a second state to a third state." Revell, 598 F.3d at
132. See Torraco, 615 F.3d at 132. Moreover, because he had
not obtained a Massachusetts FID card or firearm license within
sixty days of moving to the Commonwealth, he was unable lawfully
to possess firearms in the Commonwealth, and therefore was
unable to transport firearms lawfully into or from the
Commonwealth pursuant to 18 U.S.C. § 926A. See Torraco, supra
at 138 (because petitioners "began the pertinent legs of their
22
travels in New Jersey," under 18 U.S.C. § 926A, "possession and
carriage of the firearms in that state needed to be lawful" in
order for that statute to apply).
There was no error in the trial judge's decision that an
instruction concerning the provisions of 18 U.S.C. § 926A was
not warranted.
ii. Residence or place of business. The defendant argues
for the first time on appeal that the judge erred in not
instructing the jury to consider whether he had possessed the
firearm outside his residence or place of business. The
defendant did not request the instruction at trial, nor did he
object. Therefore, we must determine whether there was a
substantial risk of a miscarriage of justice. See Jefferson,
461 Mass. at 836. We conclude there was not.
General Laws c. 269, § 10 (a) (1), establishes a statutory
exemption that allows an individual who has a Massachusetts FID
card lawfully to possess a firearm in his or her residence or
place of business. See Powell, 459 Mass. at 587-588 ("FID card
allows the holder to own or possess a firearm within the
holder's residence or place of business"). See also
Commonwealth v. McGowan, 464 Mass. 232, 240-241 (2013). Thus,
G. L. c. 269, § 10 (a) (1), is an affirmative defense. See,
e.g., Commonwealth v. Anderson, 445 Mass. 195, 214 (2005).
Although the defendant did not raise this defense, the judge, as
23
was proper, nonetheless instructed the jury that G. L. c. 269,
§ 10 (a) (1), "exempts a defendant . . . who was present in or
on his or her residence or place of business." The defendant is
mistaken in his argument before this court that the judge did
not instruct on this exemption.
In any event, the firearm was recovered from the
defendant's vehicle, and, at trial, he argued consistently that
he had no residence or place of business in the Commonwealth.
The defendant, therefore, provided little basis for the judge to
have instructed on G. L. c. 269, § 10 (a) (1). Moreover, there
was no indication that the defendant had applied for or obtained
an FID card. Absent such a card, the defendant could not have
been acquitted under G. L. c. 269, § 10 (a) (1). He suffered no
prejudice.
iii. Sixty-day grace period and temporary licenses. The
defendant argues that the jury instruction with respect to G. L.
c. 140, § 129C (j), deprived him of a "potential" defense under
that provision. In addition, he argues that a portion of the
instruction might have confused the jury concerning temporary
Massachusetts firearm licenses that are issued under G. L.
c. 140, § 131F. Because the defendant did not object at trial,
we review for a substantial risk of a miscarriage of justice.
See Jefferson, 461 Mass. at 836.
Because the defendant did not have a Massachusetts firearm
24
license, the central issue at trial was whether he was living in
Massachusetts on September 12, 2015, and, if so, for how long
prior to that date. The Commonwealth's theory was that the
defendant lived in Massachusetts from late May 2015 through
September 12, 2015, a period of more than sixty days. The
defendant maintained that he had never lived in Massachusetts.
A number of provisions of the Massachusetts firearm
licensing scheme create exceptions for new residents and
nonresidents. The judge properly instructed the jury on them.
As discussed, for example, G. L. c. 140, § 129C (j),
provides a sixty-day period during which a new resident of the
Commonwealth who arrives in Massachusetts with firearms may
possess those firearms without a Massachusetts FID card or
firearm license. See G. L. c. 269, § 10 (a) (4). In his
charge, the judge explained that G. L. c. 140, § 129C (j),
exempted any "new resident moving into the Commonwealth with
respect to a firearm, rifle, shotgun, or ammunition then in his
possession for [sixty] days after" moving to "the Commonwealth."
Because G. L. c. 269 does not define the term "resident,"
the judge instructed that a defendant "can only have one
domicile under the law," but "can have lots of residences[,] so
we use the [term] residence in its common everyday meaning and
understanding that a person may have more than one residence at
any one given time." The judge instructed further that, for the
25
purposes of G. L. c. 140, § 129C (j), the Commonwealth had the
burden of proving beyond a reasonable doubt that the defendant
had been a Massachusetts resident.
While the defendant did not request an instruction on G. L.
c. 140, § 129C (j), the evidence suggested that he was a new
resident of the Commonwealth. Accordingly, the judge properly
instructed the jury on that provision. See Commonwealth v.
Gonzalez, 465 Mass. 672, 682 (2013). Relying on these
instructions, had the jury found that the defendant was a
resident of the Commonwealth on September 12, 2015, but that he
had resided in Massachusetts for fewer than sixty days, they
would have been required to acquit him.
In addition, the judge instructed that a nonresident who
obtains a Massachusetts temporary firearm license pursuant to
G. L. c. 140, § 131F, lawfully may carry firearms in the
Commonwealth for specific purposes. The judge also explained
that, under G. L. c. 140, § 131G, a nonresident without a
Massachusetts firearm license may carry
"a pistol or revolver in or through the Commonwealth
for the purpose of taking part in a pistol or revolver
competition or attending any meeting or exhibition of
any organized group of firearm collectors or for the
purpose of hunting provided that such person is a
resident of the United States and has a permit or
license to carry firearms issued under the laws of any
state, district, or territory which has licensing
requirements which prohibit the issuance of permits or
licenses to persons who have been convicted of a
felony or who have been convicted of unlawful use or
26
possession or sale of narcotics or harmful drugs."
Given these instructions, had the jury found that the
defendant was a nonresident when police discovered his firearm,
and that he had acquired a temporary Massachusetts firearm
license under G. L. c. 140, § 131F, or that he was traveling in
or through Massachusetts to participate in a firearm
competition, a firearm collectors' meeting or exhibition, or to
hunt, they would have been obligated to acquit him.
In sum, the instructions encompassed exemptions under which
the defendant could have been acquitted regardless of whether
the jury found that he was a resident, as the Commonwealth
asserted, or a nonresident, as he maintained. The instructions
accurately informed the jury of the elements of the offense, as
well as the affirmative defenses. They did not deprive the
defendant of an affirmative defense under G. L. c. 140,
§ 129C (j), and were not likely to confuse the jury with respect
to the exemption for nonresidents who possess Massachusetts
temporary firearm licenses. See G. L. c. 140, § 131F. We
conclude that the instructions did not create a substantial risk
of a miscarriage of justice.
b. Asserted prosecutorial misconduct. The defendant
contends that the Commonwealth caused him prejudice by asking
Patty whether he "had something against Massachusetts." Because
the defendant did not object, we review for a substantial risk
27
of a miscarriage of justice. See Commonwealth v. Ferreira, 460
Mass. 781, 788 (2011).
During cross-examination, defense counsel asked Patty
whether the defendant told "just about everybody that he had no
intention of ever living in Massachusetts," to which Patty
responded, "I can't answer that in a yes or no without
explanation." On redirect, the Commonwealth probed the same
issue; the prosecutor asked whether the defendant had told Patty
that he "never wanted to live in Massachusetts," but nonetheless
had moved into the Tewksbury apartment with her. Patty answered
in the affirmative. The prosecutor then clarified, "So he had
something against Massachusetts . . . [b]ut he found himself
here anyway?" To which Patty responded, "Correct."
Evidence "that otherwise may be inadmissible may become
admissible where the defendant opens the door to its admission."
Commonwealth v. Quinn, 469 Mass. 641, 732-733 (2014). Here,
"defense counsel invited a fuller explanation" of Patty's
testimony, see Commonwealth v. McCowen, 458 Mass. 461, 479
(2010), and the prosecutor was permitted to respond. See id.
The defendant's dislike of Massachusetts was a cornerstone
of his defense strategy. On direct examination of the
defendant's uncle, counsel asked, "[H]as [the defendant] ever
expressed any statement about living in Massachusetts?" The
uncle responded, "He dislikes Massachusetts." Later, the
28
defendant himself testified, "I'm not good with [Massachusetts]
gun laws. . . . I just don't like -- I don't like it down here
basically." Given this, the question that the prosecutor posed
to Patty did not create a substantial risk of a miscarriage of
justice.
Judgment affirmed.