Commonwealth v. Guardado

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SJC-13315
COMMONWEALTH vs. CARLOS GUARDADO.
Middlesex. December 5, 2022. - April 13, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Firearms. Search and Seizure, Motor vehicle, Probable cause.
Constitutional Law, Search and seizure, Probable cause,
Right to bear arms, Burden of proof, Retroactivity of
judicial holding. Due Process of Law, Elements of criminal
offense, Burden of proof. Probable Cause. Motor Vehicle,
Firearms. License. Practice, Criminal, Motion to
suppress, Instructions to jury, Presumptions and burden of
proof, Retroactivity of judicial holding. Retroactivity of
Judicial Holding.
Indictments found and returned in the Superior Court
Department on June 26, 2019.
A pretrial motion to suppress evidence was heard by C.
William Barrett, J., and the cases were tried before Paul D.
Wilson, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Elaine Fronhofer for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
2
Patrick Levin, Committee for Public Counsel Services, &
Chauncey B. Wood, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
GAZIANO, J. In 2019, Boston police officers searched the
defendant's vehicle without a warrant after having received a
tip from a confidential informant, and discovered in the glove
compartment a loaded firearm and a large capacity magazine. At
the time of the search, the vehicle was parked in the parking
lot of the business at which the defendant was employed.
Following a jury trial, the defendant was convicted of
unlawfully carrying a firearm, unlawfully carrying a loaded
firearm, unlawfully carrying ammunition, and unlawfully carrying
a large capacity feeding device. The statute under which the
defendant was convicted, G. L. c 269, § 10, contains two
exemptions that are relevant here. First, it exempts anyone
who, while in possession of a firearm, is present in or on his
or her place of business. Second, the statute exempts someone
who has been issued a firearms license. At the defendant's
trial, the judge did not instruct the jury on either of these
exemptions.
In this appeal, the defendant argues that there was no
probable cause to search the glove compartment of his vehicle
and that the judge erred in not instructing the jury on the two
statutory exemptions. We conclude that there was probable cause
3
to search the glove compartment, because the search was in
response to a tip that was provided by an informant who had
demonstrated reliability and who had personal knowledge of the
firearm. We also conclude that there was no error in the
judge's decision not to instruct on the place of business
exemption, because the evidence was insufficient to establish
that the parking lot where the vehicle was found was under the
exclusive control of the business where the defendant worked.
We agree, however, that the judge erred in not instructing
the jury on the licensure exemption. In the wake of the United
States Supreme Court's decision in New York State Rifle & Pistol
Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022), in which the Court
held that the Second Amendment to the United States Constitution
protects an individual's right to carry a firearm in public, our
existing precedent that licensure is an affirmative defense, and
not an element of the offense the Commonwealth is required to
prove, must be revisited. See Commonwealth v. Gouse, 461 Mass.
787, 807 (2012). Because possession of a firearm in public is
constitutionally protected conduct, in order to convict a
defendant of unlawful possession of a firearm, due process
requires the Commonwealth prove beyond a reasonable doubt that a
defendant did not have a valid firearms license. Accordingly,
the defendant's convictions of unlawful possession of a firearm,
unlawful possession of a loaded firearm, and unlawful possession
4
of ammunition cannot stand. Because there is no constitutional
right to possess a large capacity magazine, we affirm the
defendant's conviction of unlawful possession of a large
capacity feeding device. See Commonwealth v. Cassidy, 479 Mass.
527, 540, cert. denied, 139 S. Ct. 276 (2018), quoting District
of Columbia v. Heller, 554 U.S. 570, 625 (2008) (right to bear
arms "does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes").1
1. Background. a. Motion to suppress. We recite the
facts from the motion judge's findings, supplemented by other
evidence in the record that supports the judge's conclusion and
that was either explicitly or implicitly credited by the judge.
See Commonwealth v. Jones-Pannell, 472 Mass. 429, 437-438
(2015).
On January 25, 2019, Lieutenant Mathew Pieroway of the
Boston police department received information from a
confidential informant, known as "Z," that an individual with
the defendant's name was in possession of an unlicensed gun. At
that point in time, Z was a "card-carrying" informant, which
meant that Z had assisted Boston police in an investigation
within the previous six months. In the prior year, information
1 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the Massachusetts Association of
Criminal Defense Lawyers in support of the defendant.
5
provided by Z in one instance had resulted in the seizure of
narcotics and an arrest for a drug-related offense, and in a
separate matter, Z had provided information that led to the
recovery of a firearm that was stored near a playground.
Z informed Pieroway that the individual was in possession
of a silver firearm and that the firearm was being stored in a
black backpack in his vehicle. Pieroway was aware, from prior
conversations with Z, that the individual operated a green Honda
Accord with a Maine registration plate. Pieroway also knew the
plate number. Z told Pieroway that the individual would be
driving in the area of Watertown, in such a vehicle, later that
day. Z also reported that the individual worked at a particular
auto parts store, hereinafter referred to as "the Store."
While driving toward Watertown, Pieroway contacted other
members of his unit, as well as Watertown police Detective Mark
Lewis, whom Pieroway knew from prior investigations and
prosecutions. Pieroway informed these officers that he had
received information from a reliable informant that the
defendant had a gun in his possession and that he would be in
the Watertown area shortly.
Within an hour of speaking to the informant, Pieroway
located the defendant a short distance from a mall in Watertown.
Pieroway watched the defendant pull into the parking lot of the
Store, get out of the green Honda with the Maine license plate,
6
and enter the Store, where he appeared to be an employee. Other
officers, including Lewis, arrived soon thereafter and set up
surveillance around the car and the Store. While en route to
Watertown, Lewis had had a license check conducted through
Criminal Justice Information Services, which had revealed that
the defendant did not have a license to carry a firearm, as well
as a Criminal Offender Record Information check, which had
indicated that the defendant had a prior firearm "incident" on
his record.2
At roughly 6:45 P.M., Pieroway observed the defendant leave
the Store and walk towards his vehicle. As the defendant was
beginning to get into the vehicle, officers approached him,
identified themselves, and asked him to move away from it. They
also gave the defendant the Miranda warnings. Lewis searched
the vehicle while the defendant stood with an officer to the
rear of it. Lewis was unable to locate either a gun or a black
backpack in the vehicle. The glove compartment, which was the
only part of the interior that was not searched at that time,
was locked. Lewis then conducted a patfrisk of the defendant
and found nothing other than the keys to the vehicle. Lewis
used the keys to open the glove compartment. Inside was a
2 By the time of the hearing on the defendant's motion to
suppress, Lewis could not recall anything about the nature of
the incident or whether it had resulted in a conviction.
7
silver Smith & Wesson nine millimeter firearm that was loaded
with a fifteen-round magazine containing two rounds of
ammunition. Also inside was another fifteen-round magazine that
was loaded with ten rounds of ammunition.
When the defendant left the Store, Detective Sergeant John
Claflin, one of the officers who had been surveilling the scene,
was told to go into the Store to find out whether the defendant
had left any personal belongings, in particular a black
backpack, behind. After entering the Store and having been
directed to an employee storage area, Claflin saw a black
backpack that was identified by a Store employee as belonging to
the defendant. Claflin picked up the backpack and could feel
what he believed, on the basis of his experience and training,
to be a gun storage box. Claflin opened the backpack and found
an empty gun storage box. Claflin left the Store and saw the
green Honda being searched; at that point, the defendant had not
yet been pat frisked.3
Once the gun and magazine were found, the defendant was
placed under arrest. Shortly thereafter, he said, "You got me
3 John Claflin testified at the hearing that he did not
think that the gun in the glove compartment had been found when
he left the Store. The defendant contests this statement and
argues that it was not established at the hearing on his motion
to suppress whether the backpack was searched prior to the
discovery of the firearm. This question of timing is not
pertinent to our analysis.
8
for the gun. It's a [nine millimeter] and there shouldn't be
one in the chamber." At the police station, the defendant again
was given the Miranda warnings. He agreed to talk to police and
told them that he had purchased the firearm for $650 from
someone in Quincy and that he had been in possession of the gun
for "awhile."
In June 2019, a grand jury issued indictments charging the
defendant with one count of illegal possession of a firearm,
G. L. c. 269, § 10 (a); two counts of illegal possession of a
large capacity feeding device, G. L. c. 269, § 10 (m); one count
of illegal possession of ammunition, G. L. c. 269, § 10 (h); and
one count of illegal possession of a loaded firearm, G. L.
c. 269, § 10 (n).4
In December 2019, the defendant filed a motion to suppress
any evidence seized as a result of the search and seizure of his
vehicle and person, on the grounds that he did not consent to a
search of his person or of his automobile and the searches and
seizure were in violation of his rights under the Fourth and
Fourteenth Amendments to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights.
4 Illegal possession of a loaded firearm, under G. L.
c. 269, § 10 (n), is not an independent charge but, rather,
"constitute[s] further punishment of a defendant who also [has]
been convicted under G. L. c. 269, § 10 (a)." See Commonwealth
v. Tate, 490 Mass. 501, 520 (2022).
9
At an evidentiary hearing on the motion to suppress,
testimony was presented concerning the basis of Z's knowledge of
the firearm. The prosecutor asked Pieroway whether "Z had
actually seen [the] silver firearm that he or she described to
you?" Pieroway responded that "Z had." Defense counsel
objected and asked, "Was the officer there when Z saw the
firearm? Did Z say he saw the firearm?." The motion judge, who
was not the trial judge, commented, "That's fair," and asked
whether Pieroway had learned that Z had seen the firearm
"through a conversation." The prosecutor then asked Pieroway,
"And how were you made aware that Z had seen the firearm?"
Pieroway answered, "I had asked Z is the firearm real." The
prosecutor inquired, "And what was Z's response?" Pieroway
said, "Yes." The judge ultimately denied the defendant's motion
to suppress.
b. Trial. A jury trial took place before a different
Superior Court judge in June of 2021. At trial, witnesses were
questioned repeatedly regarding the nature of the parking lot in
which the defendant's vehicle had been parked. On cross-
examination of Lewis, defense counsel asked whether Lewis had
seen the defendant assisting a customer in the parking lot.
Lewis responded that other investigators had observed the
defendant doing so. At another point, defense counsel asked
Lewis to confirm that the green Honda was not parked in the
10
parking lot of a nearby business across the street from the
Store. Lewis responded, "Well, it's not across the street, it's
connected to that parking lot. . . . There's no street
that . . . intersect[s] . . . . It's one park -- it's a parking
complex." Counsel then asked whether the vehicle was parked at
"the [Store] parking spot." Lewis responded, "Yes." Similarly,
during cross-examination of Pieroway, counsel asked whether the
defendant had pulled into "a [Store] parking spot." Pieroway
responded that that was correct. Boston police Officer Jason
Nunez, another officer who had been at the scene, testified that
the defendant's vehicle was parked in "the parking lot of the
[Store]." When the prosecutor asked Nunez whether it was a
large parking lot, Nunez responded, "I'm not sure the exact
amount of spaces but it's definitely -- [twenty] plus vehicles
maybe."
After the Commonwealth rested, the defendant moved for a
required finding of not guilty on each of the charges. On the
first charge, illegal possession of a firearm, the defendant
argued that the statute under which he had been charged
contained an exemption for possession while "being present in or
on his residence or place of business," G. L. c. 269,
§ 10 (a) (1), and that the Commonwealth had proved only that he
had possessed a firearm while "working at his place of business
and on the property (i.e.[,] parking lot) of his place of
11
business."5 The prosecutor responded that the defendant did not
have the firearm on his person while he was working, but,
rather, it was in his vehicle, which "was not in the [Store]
area, [nor was it] in [a Store] employee-only spot. . . .
[S]everal witnesses testified it was a fairly large parking lot
for lots of businesses." The judge noted that he found the
prosecutor's argument "persuasive," and denied the defendant's
motion.
In his closing argument, defense counsel said, "In terms of
the first indictment, one of the things that [the prosecutor
has] to prove is that [the firearm possession] was outside
somebody's home or place of business." During a sidebar
following closing arguments, the prosecutor argued that defense
counsel had misstated the law. The judge agreed, stating, "I
made a ruling on the [motion for a required finding of not
guilty] that I don't think one can reasonably interpret the law
to cover this factual situation, because the law about being on
or in your business was not meant to apply under these facts."
The prosecutor, however, did not object to the closing argument.
After further discussion at sidebar, defense counsel told
the judge that he had just re-read the model jury instructions
on possession of a firearm without a license outside an
5 The defendant's arguments with respect to the remaining
charges are not relevant to any issue on appeal.
12
individual's home or business and that the instruction provided
states that "if there is evidence that [the possession occurred
in] the defendant's residence or place of business," then the
judge should instruct the jury that an additional element of the
crime is that "the [d]efendant possessed the firearm outside of
his place of business." Counsel said that he "did offer
evidence that [the firearm possession] was [at the defendant's]
place of business." Accordingly, counsel argued that an
instruction should be given to the jury. The judge denied the
request on the ground that it was untimely, because the jury
were about to enter the court room to hear the final charge.
The judge also noted that the statute did "not cover the factual
situation before this jury, because the Legislature, in putting
those words into the statute, did not intend to cover this
situation of a . . . firearm in a locked glove box of a car
parked in a parking lot, not in the business itself." Defense
counsel responded, "I just want to make clear that I did offer
evidence through cross-examination that this was strictly [a
Store] parking lot, and I think it was thoroughly covered that
[the vehicle was in the defendant's] possession . . . . It was
in the glove box, for which the keys were found . . . [in] his
possession. That's his place of business. I want to make that
clear." The judge stated, "Fair enough. Noted." In his final
charge, the judge instructed:
13
"Indictment Number 1 charges [the defendant] with knowingly
possessing a firearm unlawfully. In order to prove the
Defendant guilty of this offense the Commonwealth must
prove the following three things beyond a reasonable doubt.
First, that the Defendant possessed a firearm or that he
had a firearm under his control in a vehicle. Second, that
what the Defendant possessed or had under his control in a
vehicle met the legal definition of a firearm. And third,
that the Defendant knew he possessed a firearm or had a
firearm under his control in a vehicle."
Soon after the jury began deliberations, they submitted a
note asking:
"In their closing arguments, the Defense lawyer mentioned
that firearm possession, Indictment Number 1, must meet the
criteria of being 'outside a home or business.' This is
not indicated in your written instructions to us. Can you
please clarify if we need to consider this in our
deliberations."
Following a discussion, the attorneys and the judge came to an
agreement on how the judge would respond to the question. The
judge had the jury return to the court room and explained,
"Yes, the statute has an exemption in it . . . for having a
weapon at home or at work. However, earlier in this case,
outside of your hearing, as a matter of law, I ruled that
that exemption does not apply in this case. It's not
available to [the defendant]. And therefore that's why I
didn't include anything about it in the instructions."
The jury found the defendant not guilty of one count of illegal
possession of a large capacity feeding device and guilty of all
other counts. The defendant filed a timely notice of appeal,
and we transferred the case to this court on our own motion.
2. Discussion. The defendant argues that police did not
have probable cause to search the glove compartment of his
14
vehicle and, thus, the motion judge erred in denying his motion
to suppress evidence seized as a result of the warrantless
search of his vehicle and person. The defendant also argues
that the trial judge erred in not instructing the jury on the
place of business exemption. In addition, the defendant
maintains that the trial judge erred by not instructing the jury
that the Commonwealth was required to prove beyond a reasonable
doubt that the defendant did not have a firearms license when
the firearm and magazine were discovered.
a. Motion to suppress. "In reviewing the denial of a
motion to suppress, we accept the judge's findings of fact
absent clear error" (citation omitted). Commonwealth v. Mubdi,
456 Mass. 385, 388 (2010). In particular, we accord deference
to "findings drawn partly or wholly from testimonial evidence."
Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018). "We then
conduct an independent review of [the judge's] ultimate findings
and conclusions of law" (quotation and citation omitted).
Mubdi, supra.A warrantless search is presumed to be unreasonable under
the Fourth Amendment and art. 14 of the Massachusetts
Declaration of Rights. Commonwealth v. Ortiz, 487 Mass. 602,
606 (2021). This presumption, however, may be surmounted "if
the circumstances of the search fall within an established
exception to the warrant requirement" (citation omitted). Id.15
"One of those exceptions, commonly known as 'the automobile
exception,' applies to situations where the police have probable
cause to believe that a motor vehicle parked in a public place
and apparently capable of being moved contains contraband or
evidence of a crime" (citation omitted). Commonwealth v. Dame,
473 Mass. 524, 536, cert. denied, 580 U.S. 857 (2016). This
exception exists because "the inherent mobility of automobiles
creates an exigency that they, and the contraband there is
probable cause to believe they contain, can quickly be moved
away while a warrant is being sought." Ortiz, supra, quoting
Commonwealth v. Motta, 424 Mass. 117, 123 (1997).
To establish that a search falls within the automobile
exception, "[t]he Commonwealth bears the burden of proving the
existence of . . . probable cause to believe that the automobile
contained contraband" (quotation and citation omitted).
Commonwealth v. Garden, 451 Mass. 43, 47 (2008). To meet this
burden, the Commonwealth must establish that "the information
possessed by police, at the time of the proposed warrantless
search, provide[d] a substantial basis for the belief that there
[was] a timely nexus or connection between criminal activity, a
particular person or place to be searched, and particular
evidence to be seized" (citation omitted). Dame, 473 Mass.
at 536-537. Probable cause does not require an absence of
uncertainty; rather, we ask whether a "reasonable and prudent"
16
person could have acted on such a belief. See Commonwealth v.
Agogo, 481 Mass. 633, 637 (2019), quoting Commonwealth v. Cast,
407 Mass. 891, 895-896 (1990).
i. Aguilar-Spinelli test. The defendant contends that the
motion judge erred in allowing the confidential informant's tip
to be used to establish probable cause. An informant's tip may
be used to establish probable cause only if the Commonwealth
satisfies the Aguilar-Spinelli test. Commonwealth v. Tapia, 463
Mass. 721, 729 (2012). See Spinelli v. United States, 393 U.S.
410, 415 (1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964).
This test requires the Commonwealth to "demonstrate some of the
underlying circumstances from which (a) the informant gleaned
his information (the 'basis of knowledge' test), and (b) the law
enforcement officials could have concluded the informant was
credible or reliable (the 'veracity' test)" (citation omitted).
Tapia, supra. "Both prongs must be separately considered and
satisfied" (quotation and citation omitted). Id. According to
the defendant, the Commonwealth failed to satisfy either prong
of the Aguilar-Spinelli test. The Commonwealth maintains that
both prongs were satisfied.
The Commonwealth can satisfy the basis of knowledge prong
by showing that "the information provided [by an informant]
springs from [the] informant's firsthand observations or
knowledge." Commonwealth v. Arias, 481 Mass. 604, 618 (2019).
17
Here, the motion judge found that Z had told Pieroway that he
had seen the firearm in the black backpack, and that that was
the basis for his knowledge of the location of the firearm.
This finding would be sufficient to satisfy the basis of
knowledge prong, as it establishes that "the informant was
reporting his own observation of the gun[] in question." See
Commonwealth v. Alfonso A., 438 Mass. 372, 374 (2003). The
defendant argues, however, that the judge's finding was clearly
erroneous.
According to the defendant, a reasonable fact finder could
not have found, on the basis of Pieroway's testimony, that Z had
had firsthand knowledge of the firearm in the backpack. This is
so, the defendant maintains, because Pieroway's later statement
that Z told him the firearm was "real" supplanted Pieroway's
earlier statement that Z had said he had seen the firearm. The
defendant argues, therefore, that the Commonwealth did not
demonstrate how "the informant gleaned [the] information" that
he reported to Pieroway. See Tapia, 463 Mass. at 729.
"A judge's finding is clearly erroneous only where there is
no evidence to support it or where the reviewing court is left
with the definite and firm conviction that a mistake has been
committed" (quotation and citation omitted). Commonwealth v.
Colon, 449 Mass. 207, 215, cert. denied, 552 U.S. 1079 (2007).
In reviewing the judge's findings, we recognize that "[t]he
18
determination of the weight and credibility of the testimony is
the function and responsibility of the [motion] judge who saw
the witnesses, and not this court" (citation omitted).
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008). Accordingly, a motion judge is "not required
to discard testimony that appears to contain internal
inconsistences, but may credit parts of a witness's testimony
and disregard other potentially contradictory portions." United
States v. González-Vélez, 587 F.3d 494, 504 (1st Cir. 2009),
quoting United States v. Lara, 181 F.3d 183, 204 (1st Cir.),
cert. denied, 528 U.S. 979 (1999). "The burden is on the
appellant to show that a finding is clearly erroneous." Pointer
v. Castellani, 455 Mass. 537, 539 (2009).
We conclude that the motion judge's findings here were not
clearly erroneous. Pieroway testified that after he was asked
to clarify how he knew that Z had seen the firearm, Z had said
the firearm was "real." In this context, it was reasonable for
the judge to infer that Z knew the firearm to be real because he
had seen the firearm. See Commonwealth v. Carr, 458 Mass.
295, 303 (2010) ("Where there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous" [citation omitted]). There was no clear error in the
judge's decision to draw such an inference. See Colon, 449
Mass. at 224 (no clear error where factual findings "were
19
supported by the evidence admitted or based on logical
inferences drawn therefrom").
The defendant also argues that, even if there were a basis
of knowledge for the informant's tip, that basis was negated
once police failed to find a backpack in the defendant's
vehicle, at which point the informant's tip was proved
inaccurate by the absence of a backpack. See Mubdi, 456 Mass.
at 397. This argument misses the mark. The Commonwealth can
establish a basis of knowledge under the Aguilar-Spinelli test
through two independent means. First, an informant's basis of
knowledge can be inferred if there was sufficient "independent
police corroboration of the details of the informant's tip."
Commonwealth v. Bakoian, 412 Mass. 295, 298 (1992). Second, the
informant's basis of knowledge can be established where it is
"apparent that the informant was reporting his own observation."
Alfonso A., 438 Mass. at 374. Here, we rely on the motion
judge's finding that the informant personally had observed the
firearm in the defendant's backpack. The basis of knowledge
test therefore survives the police failure to corroborate
certain details in the informant's tip. See Tapia, 463 Mass.
at 729 ("First-hand receipt of information through personal
observation satisfies the basis of knowledge prong . . ."
[citation omitted]).
20
The defendant also contends that the Commonwealth failed to
satisfy the veracity prong of the Aguilar-Spinelli test. "To
satisfy the veracity test, the Commonwealth needs to show either
that the [informant] had a demonstrated history of
reliability, . . . or the existence of circumstances assuring
trustworthiness on the particular occasion of the information's
being furnished" (quotation and citation omitted). Commonwealth
v. Pinto, 476 Mass. 361, 365 (2017). A history of reliability
can be demonstrated by a showing that "the informant provided
accurate information in the past as to seizures, pending cases,
convictions, or other such information which would indicate
reliability." Commonwealth v. Warren, 418 Mass. 86, 89 (1994).
We conclude that the Commonwealth satisfied the veracity
prong. Z's reliability was established by a previous instance
in which Z supplied "information [that] led to the confiscation
of illegal narcotics." See Commonwealth v. Mendes, 463 Mass.
353, 365 (2012). The defendant argues that one such occasion is
insufficient to satisfy the veracity test.6 To support this
6 The motion judge found that the information Z provided to
Boston police had resulted in two separate arrests. The
defendant argues that this was clear error because, in his
testimony, Pieroway referred to only one arrest that was made on
the basis of information provided by Z. We agree. Accordingly,
we base our analysis on Pieroway's testimony in which he stated
that Z's information led to a drug-related arrest, along with
the seizure of narcotics and, separately, the recovery of a
firearm near a playground. The defendant further contends that
21
proposition, he points to Commonwealth v. Melendez, 407 Mass.
53, 59 (1990), in which we stated that "[t]he fact that the
informant gave information on one occasion in the past which led
to the arrest of two individuals is insufficient to satisfy the
veracity test." In Melendez, however, the issue was not that
the informant had only provided information on one occasion.
Rather, the veracity test failed in that case because the fact
of the arrests, without more, did not establish the accuracy of
the information that had caused police to make those arrests.
See Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991) ("a
clerk-magistrate [is] not entitled to infer from . . . a
statement [that a prior tip led to arrests] that [the] prior tip
had proved to be accurate"). Here, Z supplied information that
led not only to an arrest for a drug-related offense, but also
to the seizure of narcotics. The seizure was sufficient proof
that Z had "provided information in the past which has proved to
be accurate." See id. at 45.
ii. Probable cause to search the glove compartment. The
defendant argues that, even if Z's tip satisfied the Aguilar-
Spinelli test, it did not establish probable cause to search the
the discovery of the firearm near the playground did not bolster
Z's reliability, because no testimony was given as to whether
the firearm was an instrument of unlawful activity. Because we
conclude that veracity is established here on the basis of the
seizure of narcotics, we do not address this argument.
22
glove compartment of his vehicle. According to the defendant,
it would not have been reasonable for police to expect to find
his backpack in the glove compartment.
Where there is probable cause to search a vehicle, "the
permissible scope of the search [is] not limitless." Garden,
451 Mass. at 50. Rather, "a valid search is limited to 'any
area, place, or container reasonably capable of containing the
object of the search.'" Id. at 51, quoting Commonwealth v.
Signorine, 404 Mass. 400, 405 (1989). Hence, in determining
whether the warrantless search of a vehicle was lawful, we ask
whether the search was restricted to the "part[s] of the vehicle
where there [was] probable cause to believe the object may be
found." See Commonwealth v. Davis, 481 Mass. 210, 220 (2019).
We begin by considering whether Lewis had probable cause to
conduct his initial search of the vehicle. Lewis was made
aware, on the basis of a tip from a reliable informant with
firsthand knowledge, that the defendant was in possession of a
firearm that day. See Cast, 407 Mass. at 897, 900-901.
Contrast Commonwealth v. Hart, 95 Mass. App. Ct. 165, 167-168
(2019) (no timely nexus between informant's observation of
firearm and location to be searched because firearm was observed
two months before search warrant application). The informant
had asserted that the firearm would be in the defendant's
vehicle and had identified the make, model, and registration
23
plate of the vehicle. See Cast, supra at 901-902, quoting
United States v. Ross, 456 U.S. 798, 813 (1982) ("the police
must have probable cause to believe a particular automobile
contains contraband, not just probable cause regarding a
specific container whose relationship to an automobile is
'purely coincidental'"). Moreover, based on the license check
he conducted prior to encountering the defendant, Lewis had
reason to believe that the defendant did not have a license to
carry a firearm. Contrast Commonwealth v. Alvarado, 423 Mass.
266, 269 (1996), quoting Commonwealth v. Toole, 389 Mass. 159,
163-164 (1983) ("mere possession of a handgun [is] not
sufficient to give rise to a reasonable suspicion that the
defendant was illegally carrying that gun"). Lewis therefore
had sufficient basis to "warrant a prudent [person] in believing
that the defendant had committed, or was committing, an offense"
and that evidence of that offense would be found in the
identified vehicle (citation omitted). See Commonwealth v.
Hernandez, 473 Mass. 379, 383 (2015).
Once Lewis failed to find the firearm during his initial
search of the vehicle, there existed probable cause to search
the glove compartment, where a firearm readily could be
concealed. "[I]f probable cause justifies the search of a
lawfully stopped vehicle, it justifies the search of every part
of the vehicle and its contents that may conceal the object of
24
the search." See Commonwealth v. Moses, 408 Mass. 136, 145
(1990), quoting Ross, 456 U.S. at 825. Up to an hour had
elapsed between the time that Z informed police of the existence
of the firearm and when they located the defendant driving in
Watertown. The defendant therefore had had ample time to move
any firearm in his possession to the glove compartment of his
vehicle. See Cast, 407 Mass. at 902 (probable cause existed to
search entire vehicle because, after watching defendant place
contraband in trunk of vehicle, agents "lost the defendant from
their sight . . . for some six hours before he reappeared in
view[,] . . . at any point during which [contraband] could have
been placed elsewhere in the car"). Moreover, the defendant had
parked his vehicle in a public lot outside his workplace. Under
such circumstances, it would have been reasonable to suspect
that the defendant might have secured an unlawfully possessed
firearm in a locked glove compartment in order to avoid its
detection by passersby. Contrast Garden, 451 Mass. at 51 ("The
search of the [defendant's] trunk . . . exceeded the permissible
scope of the search because [the officer] could not reasonably
have believed that the source of the smell of burnt marijuana
would be found in the trunk").
The defendant maintains that, when officers are apprised
that a precise location within a vehicle contains contraband,
they must limit their search of the vehicle to that location.
25
Because the informant's tip specified a particular location --
the defendant's backpack -- in which the firearm would be found,
the defendant contends that the scope of a lawful search was
limited to areas in which the backpack reasonably could be
stored and that it would not have been reasonable to suspect
that the backpack would be stored in the glove compartment.
This argument, however, misconstrues our jurisprudence. Where
an informant's tip specifies a particular location within a
vehicle in which contraband may be stored, that does not
necessarily preclude the possibility that there is probable
cause to search for the contraband in another part of the
vehicle. See Commonwealth v. Wunder, 407 Mass. 909, 913 (1990).
Here, Lewis reasonably could have believed that the object
of his search -- the silver firearm described by Z -- was
located in the glove compartment. See Cast, 407 Mass. at 896,
quoting Commonwealth v. Alessio, 377 Mass. 76, 82 (1979) ("in
determining whether probable cause exists . . . , '[r]easonable
inferences and common knowledge are appropriate
considerations'"). As discussed, there was probable cause to
believe that the firearm was in the defendant's vehicle. See
Bostock, 450 Mass. 616, 624 (2008), quoting Cast, supra at 908("As a general matter, . . . the 'lawful warrantless search of a
motor vehicle . . . extends to all containers, open or closed,
found within"). The defendant had had ample opportunity to
26
transfer the firearm to the glove compartment, and reason to do
so given the public location of the vehicle. See Garden, 451
Mass. at 50 (officer had probable cause to search glove
compartment of vehicle because "any contraband hidden on the
passengers' person[s] easily could have been transferred to a
location in the passenger compartment when they were ordered to
get out"). Accordingly, we conclude that Lewis had probable
cause to search the glove compartment of the defendant's
vehicle.
iii. Patfrisk. The defendant argues that, even if there
was probable cause to search the glove compartment, the firearm
and magazine should have been excluded at trial because their
discovery resulted from an unconstitutional patfrisk of his
person. We conclude that Lewis's search of the defendant's
person was a lawful patfrisk and that, thus, the exclusionary
rule did not prohibit the introduction of the firearm and
magazine. See Commonwealth v. Long, 476 Mass. 526, 535-536
(2017).
A patfrisk is a "'carefully limited search of the outer
clothing of [a] person[] . . . to discover weapons' for safety
purposes." Commonwealth v. Torres-Pagan, 484 Mass. 34, 36
(2020), quoting Terry v. Ohio, 392 U.S. 1, 30 (1968). "The only
legitimate reason for an officer to subject a suspect to a
patfrisk is to determine whether he or she has concealed weapons
27
on his or her person." Torres-Pagan, supra at 39. For this
reason, a "patfrisk is permissible only where an officer has a
'reasonable suspicion,' based on specific articulable facts,
'that the suspect is [both] armed and dangerous.'" Commonwealth
v. Garner, 490 Mass. 90, 92 (2022), quoting Torres-Pagan, supra
at 36.
The motion judge found that Lewis conducted a patfrisk of
the defendant because he was "in fear for his safety due to the
potential presence of a gun." The defendant points out that
there was no testimony suggesting that Lewis feared for his
safety when he conducted the patfrisk. If an officer has
reasonable suspicion that a person is carrying an illegal
firearm, however, that is a sufficient basis upon which to
conclude that the person is armed and dangerous so as to justify
a patfrisk. See Commonwealth v. DePeiza, 449 Mass. 367, 371
(2007).
The defendant also argues that there was no basis to
believe that he was carrying an unlicensed firearm on his
person, because Z's tip indicated only that a firearm would be
found in his vehicle. See DePeiza, 449 Mass. at 374.
Reasonable suspicion, however, may be grounded in "reasonable
inferences" drawn from "specific, articulable facts" (citation
omitted). Id. at 371. As discussed, Lewis had probable cause
to believe that the defendant was in unlawful possession of a
28
firearm. Just as Lewis reasonably could have inferred, upon
failing to find the firearm elsewhere in the vehicle, that it
was in the glove compartment, he also reasonably could have
inferred that the firearm instead was located on the defendant's
person. See Gouse, 461 Mass. at 793 ("When the firearm [that
the police had been warned the defendant likely carried] was not
found on the defendant's person, police appropriately concluded
that it was likely located in the automobile").
Moreover, Lewis was justified in removing the set of keys
from the defendant's person and using them to unlock the glove
compartment. In order to "dispel reasonable suspicions that the
stopped suspect may be armed with a weapon," an officer may
retrieve from the suspect any "hard object" that could be a
"potential weapon." See Commonwealth v. Pagan, 440 Mass. 62,
68-69 (2003). We previously have held that it is "self-evident"
that keys constitute a hard object that may be seized as a
potential weapon. See Commonwealth v. Blevines, 438 Mass. 604,
608 (2003). Lewis therefore was justified in retrieving the
defendant's keys as a means of disarming him. See Commonwealth
v. Wilson, 441 Mass. 390, 396 (2004). In addition, because
there was probable cause to believe that the firearm was in the
glove compartment, Lewis also was justified in using the keys,
once retrieved, to gain access to the interior of the glove
compartment. Contrast Blevines, supra at 609-610 (police were
29
not permitted to use keys seized from defendant during patfrisk
to unlock his vehicle because there "was no evidence that the
police had any basis for suspecting that any contraband . . .
would be found in the automobile").
b. Instruction on place of business exemption. The
defendant contends that the trial judge should have instructed
the jury that, to convict the defendant, the Commonwealth had to
prove that he was not in or on his place of business when the
firearm and magazine were discovered. This is because, the
defendant argues, whether he was in or on his place of business
at the time the firearm was seized was a question for the jury.
"Trial judges have considerable discretion in framing jury
instructions . . ." (quotation and citation omitted). See
Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). "Instructions
that convey the proper legal standard, particularly when
tracking model jury instructions, are deemed correct." Green,
petitioner, 475 Mass. 624, 629 (2016).
General Laws c. 269, § 10 (a), "makes it an offense to
'knowingly' possess a firearm outside of one's residence or
place of business without also having a license to carry a
firearm." Commonwealth v. Powell, 459 Mass. 572, 588 (2011),
cert. denied, 565 U.S. 1262 (2012). We have held that this
language exempts an individual from the requirement of obtaining
a firearms license if the location of the individual's firearm
30
is restricted to his or her residence or place of business. See
Commonwealth v. Harris, 481 Mass. 767, 780 (2019). "We treat
the existence of a statutory exemption as equivalent to an
affirmative defense." Commonwealth v. Kelly, 484 Mass. 53, 67
(2020).
While the Commonwealth carries the burden of proving each
element of a charged crime, it "has no burden of disproving an
affirmative defense unless and until there is evidence
supporting such defense." Commonwealth v. Cabral, 443 Mass.
171, 179 (2005). If a defendant raises a defense that is
"supported by sufficient evidence," however, the defendant is
"entitled to have a jury instruction" on that defense. Id.Where a judge does not instruct the jury on an affirmative
defense, the judge errs "if the evidence, viewed in the light
most favorable to the defendant, provided support for the
affirmative defense." Kelly, 484 Mass. at 67.
The defendant does not ask us to upend our established
precedent that the place of business exemption is an affirmative
defense, and we discern no compelling reason to do so. Here,
therefore, the judge erred in not instructing on the place of
business exemption only if sufficient evidence was introduced
that the defendant was in or on his place of business when the
firearm was discovered. See Commonwealth v. Dunphy, 377 Mass.
453, 459-460 (1979) (if no evidence is provided that defendant
31
was "within the limits of his property or residence at the time
of the alleged offense . . . , it should be presumed that none
existed").7
To determine whether sufficient evidence was introduced
that the defendant was in or on his place of business, we first
must delineate the extent of the "place of business" exemption,
which we have not yet been required to address. We start by
examining the related exemption for place of residence, which we
previously have addressed. See Commonwealth v. Anderson, 445
Mass. 195, 214 (2005). We have understood the residence
exemption in accordance with the Legislature's intent to balance
an individual's interest in self-defense and the public's
interest in crime deterrence and public safety. See
Commonwealth v. Seay, 376 Mass. 735, 741-743 (1978). With these
differing interests in mind, we have reasoned that "[t]he
interest of an apartment dweller in defending him[- or
her]self . . . is clearly attenuated when he [or she] passes his
[or her] doorway to enter a common area offering easy retreat."
7 The model jury instructions on possession of a firearm
without a license outside an individual's home or business state
that, "[i]f there is evidence that [the firearm possession] was
in the defendant's residence or place of business," the judge
should instruct that one element of illegal possession of a
firearm is that "the defendant possessed the firearm outside of
his (her) residence or place of business." See Instruction
7.600 of the Criminal Model Jury Instructions for Use in the
District Court (rev. Jan. 2013).
32
Id. at 742-743. Accordingly, "[w]e have defined the term
'residence' to include" only those areas "over which the
[individual] retains exclusive control." Commonwealth v. Coren,
437 Mass. 723, 734 (2002). The residence exemption, therefore,
does not apply where a defendant possesses or controls a firearm
in the "[p]ublic streets, sidewalks, [or] common areas [of an
apartment building] to which occupants of multiple dwellings
have access." Id. Moreover, if a defendant's firearm is stored
within his or her vehicle, the residence exemption applies only
if the vehicle is located within or on the defendant's
residence. See Harris, 481 Mass. at 780.
This reasoning "applies with equal force to the exemption
for a person's place of business." See Commonwealth v. Belding,
42 Mass. App. Ct. 435, 438 (1997). An individual has an
interest in protecting his or her place of business, but that
interest is attenuated when the individual enters an area that
is not within the exclusive control of that business. See id.See also Prince George's County v. Blue, 206 Md. App. 608, 621
(2012), aff'd, 434 Md. 681 (2013) ("The display of a weapon by a
security guard indoors could halt violence by unarmed patrons
inside the establishment. However, drawing a handgun to chase a
malefactor across a parking lot, where he or she may have a
weapon hidden in a car, invites possible battlefield-type
carnage"). Accordingly, given the Legislature's intent to
33
"protect the public from the potential danger incident to the
unlawful possession of [firearms]," a firearm located within a
parking lot falls within the place of business exemption only if
the parking lot is within the exclusive control of the business.
See Commonwealth v. Lindsey, 396 Mass. 840, 842-843 (1986). See
also Sherrod v. State, 484 So. 2d 1279, 1281 (Fla. Dist. Ct.
App. 1986) (residence exception to firearm statute was
inapplicable to individual who carried concealed weapon in "the
parking lot of a multiple unit apartment dwelling"); Blue, supra
at 623 (place of business exemption is limited to "the interior
of the business establishment"); Bryant v. State, 508 S.W.2d
103, 104 (Tex. Crim. App. 1974) (residence exception in firearm
statute was inapplicable to resident "with a pistol in his hand
in a parking lot shared by other occupants of the apartment
complex").
Applying the exclusive control standard here, we conclude
that the defendant did not introduce sufficient evidence at
trial to support an affirmative defense that the firearm was in
or on his place of business. See Anderson, 445 Mass. at 214.
Although officers testified that the vehicle was located in the
parking lot of the Store, none of this testimony supports a
determination that this parking lot was under the Store's
34
exclusive control.8 See Bryant, 508 S.W.2d at 104 (parking lot
was not within defendant's premises because "parking spaces were
not assigned to tenants and a tenant used whatever space was
available"). To the contrary, testimony was introduced that
suggested the parking lot was not within the exclusive control
of the defendant's employer. During cross-examination of Lewis,
he indicated that the parking lot in front of the Store was part
of a larger parking complex. No evidence was presented to
indicate that the Store's section of the parking complex was
cordoned off, marked with signage, or under the Store's control
in any sense. See Sherrod, 484 So. 2d at 1281 (quoting Florida
Attorney General's advisory opinion stating that exception did
not apply to "a large parking lot which serves an entire
shopping area").
The defendant also argues that, because Pieroway testified
that he had observed the defendant carrying out his job duties
while in the parking lot, the parking lot was his "place of
business." "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 (2018). "Where the plain language [of a statute]
8 Given this, we need not reach the defendant's argument
that the "residence or place of business" exemption also extends
to G. L. c. 269, § 10 (m) and (n).
35
is unclear or ambiguous, we strive to discern the legislative
intent in enacting [it] 'from all its parts and from the subject
matter to which it relates, and must interpret the statute so as
to render the legislation effective, consonant with sound reason
and common sense.'" Commonwealth v. Newberry, 483 Mass. 186,
192 (2019), quoting Seideman v. Newton, 452 Mass. 472, 477
(2008). Here, the Legislature cannot have intended that one's
"place of business" be anywhere that one conducts business
activities. The residence or place of business exemption
restricts an individual's unlicensed possession of a firearm to
areas where the firearm poses a lesser degree of risk to the
public. See Seay, 376 Mass. at 742. "[T]he rule for which
[the] defendant contends," however, "would permit one to wander
[armed with a firearm] about [public areas] inhabited by
hundreds of persons simply because" one is engaged in a business
activity (citation omitted). See id. Moreover, G. L. c. 269,
§ 10 (a) (4), and G. L. c. 140, § 129C (l), (o), provide that
certain individuals are exempt from firearms licensure
requirements if they possess a firearm in the course of
particular business activities. The defendant's reading of the
statutory language would render this provision entirely
superfluous, as it would exempt any individuals who are engaged
in business activities, contrary to our long-standing canon of
statutory construction that a statute "must be construed so that
36
effect is given to all its provisions, so that no part will be
inoperative or superfluous" (quotation and citation omitted).
Commonwealth v. Keefner, 461 Mass. 507, 511 (2012).
Because no evidence was introduced at trial to support a
determination that the firearm was located in or on the
defendant's place of business, the defendant was not entitled to
an instruction on the place of business exemption.9
c. Instruction on exemption for possession of license.
The defendant also argues that his convictions should be
reversed because the jury were not instructed that, to find him
guilty of unlawful possession of a firearm, the Commonwealth had
to prove that he did not have a firearms license. Although he
did not seek such an instruction at trial, the defendant now
contends that the absence of one violated his rights to due
process and his rights under the Second Amendment.
"We do not normally consider on appeal issues that were not
fairly raised below . . . ." Commonwealth v. Hilton, 443 Mass.
597, 618 n.12 (2005), S.C., 450 Mass. 173 (2007). This rule,
however, "is not without qualification. We have excused the
failure to raise a constitutional issue at trial . . . when the
constitutional theory on which the defendant has relied was not
9 Because we conclude that there was no error, we need not
reach the Commonwealth's argument that the place of business
exemption is applicable only where the individual is the owner
or proprietor of the business.
37
sufficiently developed at the time of trial . . . to afford the
defendant a genuine opportunity to raise his claim."
Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). This
is known as the "clairvoyance exception." See Commonwealth v.
Connolly, 454 Mass. 808, 830 (2009). Here, the defendant's
argument depends upon the United States Supreme Court's holding
in Bruen, 142 S. Ct. at 2122, in which the Court established the
right to possess a firearm outside the home. The defendant's
trial took place in 2021, prior to the release of this decision.
The defendant, therefore, did not have an adequate opportunity
at the time of his trial to raise the present issue. See
Commonwealth v. Johnson, 461 Mass. 44, 54 n.13 (2011). We
therefore "conclude that the defendant is entitled" to our
review of this issue. See Commonwealth v. Hinckley, 422 Mass.
261, 266-267 (1996).
For each of the crimes of which the defendant was
convicted -- illegal possession of a firearm, illegal possession
of a large capacity feeding device, illegal possession of
ammunition, and illegal possession of a loaded firearm -- the
defendant would not have been in violation of the law if he had
obtained a proper license to engage in the proscribed activity.
See Cassidy, 479 Mass. at 532 (G. L. c. 269, § 10 [m]); Johnson,
461 Mass. at 58 (G. L. c. 269, § 10 [a], [h], [n]). Under the
current statutory regime, however, "licensure is an affirmative
38
defense, not an element of the crime." Commonwealth v. Allen,
474 Mass. 162, 174 (2016), quoting Commonwealth v. Norris, 462
Mass. 131, 145 (2012). General Laws c. 278, § 7, provides that
"[a] defendant in a criminal prosecution, relying for his [or
her] justification upon a license . . . shall prove the same;
and, until so proved, the presumption shall be that [the
defendant] is not authorized." Accordingly, this court has held
that, to convict a defendant under G. L. c. 269, § 10, "the
Commonwealth does not need to present evidence to show that the
defendant did not have a license or firearm identification
card." Colon, 449 Mass. at 226. Rather, as is the case for the
place of business exemption, "the burden [has been] on the
defendant to come forward with . . . evidence" that he or she
has a license to possess a firearm (quotation and citation
omitted). Id. Once the defendant does so, the burden then
shifts to the Commonwealth "to persuade the trier of facts
beyond a reasonable doubt that the [license] does not exist."
Commonwealth v. Humphries, 465 Mass. 762, 769 (2013), quoting
Gouse, 461 Mass. at 802.
As discussed, States may place "on defendants the burden of
proving affirmative defenses." Gouse, 461 Mass. at 804, quoting
Gilmore v. Taylor, 508 U.S. 333, 341 (1993). The due process
clause of the Fourteenth Amendment, however, "requires the
Commonwealth to prove every essential element of the offense
39
beyond a reasonable doubt." Commonwealth v. Brown, 477 Mass.
805, 815 (2017), cert. denied, 139 S. Ct. 54 (2018), quoting In
re Winship, 397 U.S. 358, 364 (1970). "Instructions to the jury
that would lead them to believe otherwise are constitutional
error." Commonwealth v. Cruz, 456 Mass. 741, 752 (2010).
Hence, while an affirmative defense may "excuse[] conduct that
would otherwise be punishable," it may not "controvert any of
the elements of the offense itself." Smith v. United States,
568 U.S. 106, 110 (2013), quoting Dixon v. United States, 548
U.S. 1, 6 (2006). Otherwise put, "an affirmative defense may
not, in operation, negate an element of the crime which the
government is required to prove." United States v. Johnson, 968
F.2d 208, 213 (2d Cir.), cert. denied, 506 U.S. 964 (1992).
Thus, to address the defendant's argument, we must
determine whether, since the United States Supreme Court's
decision in Bruen, 142 S. Ct. at 2122, the failure to obtain a
valid firearms license is now an essential element of unlawful
possession of a firearm. If so, the defendant's rights to due
process were violated when the judge placed upon him the onus of
presenting evidence of licensure, and we must reverse his
convictions. See Walton v. Arizona, 497 U.S. 639, 650 (1990)
(State cannot allocate burden of proof in way that "lessen[s]
the State's burden to prove every element of the offense
charged"); Commonwealth v. Mills, 436 Mass. 387, 398 (2002) ("A
40
criminal conviction cannot be affirmed on appeal where the jury
were not instructed on the elements of the theory of the
crime").
In answering this question, we cannot simply look to the
plain statutory language. If, through amending statutory
language, the Legislature were able to determine which elements
of a crime the Commonwealth would be required to prove, it
"could undermine [due process] without effecting any substantive
change in its law." See Mullaney v. Wilbur, 421 U.S. 684, 698
(1975). Rather, we must engage in "an analysis that looks to
the 'operation and effect of the law as applied and enforced by
the [Commonwealth],' . . . and to the interests of both the
[Commonwealth] and the defendant as affected by the allocation
of the burden of proof." Id. at 699, quoting St. Louis S.W. Ry.
v. Arkansas, 235 U.S. 350, 362 (1914).
For instance, in Commonwealth v. Munoz, 384 Mass. 503, 503
(1981), the defendant was convicted of operating an uninsured
motor vehicle. The judge had instructed the jury that "the
defendant has the responsibility and the obligation of showing
that, as a matter of fact, [the vehicle he was operating] was
insured." Id. at 505. The Commonwealth argued that this
instruction was correct, "because G. L. c. 278, § 7, which
places the burden on the defendant to produce evidence of
license or authority," implied that the defendant bore the
41
"burden of producing some evidence of automobile insurance."
Id. at 506. We concluded that G. L. c. 278, § 7, did not apply
to the crime of operating an uninsured vehicle, as "noninsurance
is an element, in fact, the central element of [such] a
prosecution." Id. at 507. Accordingly, because "insurance is
an element of the crime charged, not a mere license or
authority[,] . . . the issue of insurance cannot be viewed as an
affirmative defense and, [therefore], it cannot be removed from
jury consideration." Id. at 507. Thus, obtaining a conviction
required the Commonwealth to prove beyond a reasonable doubt
that the vehicle was uninsured. Id. at 508. See Cabral, 443
Mass. at 179 ("Because the absence of lawful authority or
justification is an element of each of the crimes charged, the
Commonwealth must prove beyond a reasonable doubt that each
defendant acted without lawful authority or justification").
In Gouse, 461 Mass. at 801-802, we held that licensure is
not an essential element of unlawful possession of a firearm.
We reasoned, rather, that under G. L. c. 269, § 10 (a), and
G. L. c. 278, § 7, the "holding of a valid license brings the
defendant within an exception to the general prohibition against
carrying a firearm." Id. at 802, quoting Commonwealth v. Jones,
372 Mass. 403, 406 (1977). That decision followed two United
States Supreme Court decisions in which the Court ruled on the
extent of the protections provided by the Second Amendment. In
42
Heller, 554 U.S. at 635, the Court held that the Second
Amendment protects the right to possess an operable firearm in
the home. Then, in McDonald v. Chicago, 561 U.S. 742, 750
(2010), the Court held that the "Second Amendment Right is fully
applicable to the States." The defendant in Gouse, supra at
801, argued that "the allocation of burdens under [G. L. c. 278,
§ 7,] contravenes the [United States Supreme Court's] holdings
[in] McDonald and Heller by permitting a presumption of
criminality from constitutionally protected conduct -- the
possession of a firearm." We concluded that Heller and McDonald
established only a "right 'to possess a handgun in the home for
the purpose[] of self-defense.'" Gouse, supra at 801, quoting
McDonald, supra at 791. The prohibition against possessing a
firearm outside the home therefore "[did] not implicate this
right." Gouse, supra at 802. Therefore, requiring that a
defendant who was charged with unlawful possession outside the
home "produce some evidence of a license at trial -- and
recognizing a consequent presumption of unauthorized possession
where [the defendant] fails to do so -- [did] not infringe on
constitutionally protected conduct." Id.Since our decision in Gouse, 461 Mass. at 807-808, the
United States Supreme Court has determined that the Second
Amendment right to possess a firearm applies outside the home.
See Bruen, 142 S. Ct. at 2134. In Bruen, supra at 2122, 2134,
43
the Court concluded that the Second Amendment's protection of
"the individual right to possess and carry weapons in case of
confrontation" requires that one have a "right to carry handguns
publicly" (citation omitted). The Court reasoned that "the
Second Amendment guarantees an 'individual right to possess and
carry weapons in case of confrontation,' and confrontation can
surely take place outside the home." Id. at 2135, quoting
Heller, 554 U.S. at 592.
In the wake of Bruen, this court's reasoning in Gouse, 461
Mass. at 802, is no longer valid. It is now incontrovertible
that a general prohibition against carrying a firearm outside
the home is unconstitutional. See Bruen, 142 S. Ct. at 2134.
Because possession of a firearm outside the home is
constitutionally protected conduct, it cannot, absent some
extenuating factor, such as failure to comply with licensing
requirements, be punished by the Commonwealth. See id. at 2122-
2123. Accordingly, the absence of a license is necessary to
render a defendant's possession of a firearm "punishable." See
Smith, 568 U.S. at 110, quoting Dixon, 548 U.S. at 6.
(affirmative defense does not negate element of crime where it
"excuse[s] conduct that would otherwise be punishable"). It
follows, then, that failure to obtain a license is a "fact
necessary to constitute" the crime of unlawful possession of a
44
firearm. See Smith, supra, quoting In re Winship, 397 U.S.
at 364.
We therefore conclude that the absence of a license is an
essential element of the offense of unlawful possession of a
firearm pursuant to G. L. c. 269, § 10 (a). General Laws
c. 278, § 7, which provides that licensure is an affirmative
defense, is no longer applicable to G. L. c. 269, § 10 (a). See
Munoz, 384 Mass. at 506, quoting Jones, 372 Mass. at 405 (G. L.
c. 278, § 7, applies only "to situations where '[a]s [a] matter
of statutory construction, the prohibition is general, the
license is exceptional'"). Rather, to convict a defendant of
unlawful possession of a firearm, the Commonwealth must prove
"as an element of the crime charged" that the defendant in fact
failed to comply with the licensure requirements for possessing
a firearm. See Munoz, supra at 507.
The District of Columbia Court of Appeals employed similar
reasoning in Herrington v. United States, 6 A.3d 1237, 1239-1240
(D.C. 2010), a case that was cited with approval in Gouse, 461
Mass. at 802. In that case, the defendant's conviction of
unlawful possession of ammunition "was based solely on evidence
that he possessed handgun ammunition in his home." Herrington,
supra at 1239. Under the relevant statute, the defendant had
the burden of establishing that he had complied with "valid
registration and licensing requirements." Id. at 1241-1242.
45
The court determined that the statute was unconstitutional under
the due process clause and the Second Amendment, because
"[w]here the Constitution -- in this case, the Second
Amendment -- imposes substantive limits on what conduct may be
defined as a crime, a [L]egislature may not circumvent those
limits by enacting a statute that presumes criminality from
constitutionally-protected conduct and puts the burden of
persuasion on the accused to prove facts necessary to establish
innocence." Id. at 1244.
Here, as stated, the jury convicted the defendant of
unlawful possession of a firearm without being instructed that,
to do so, they must have determined that the defendant did not
have a firearms license. See Neder v. United States, 527 U.S.
1, 10 (1999) ("improperly omitting an element from the
jury . . . precludes the jury from making a finding on the
actual element of the offense" [emphasis in original]). As a
result, the defendant was convicted of a crime solely on the
ground that he had engaged in the constitutionally protected
conduct of possessing a firearm in public. This violated the
defendant's rights to due process and rights under the Second
Amendment. See Montana v. Egelhoff, 518 U.S. 37, 54 (1996),
citing In re Winship, 397 U.S. at 364.
The Commonwealth argues that the defendant's due process
rights were not violated because the Second Amendment does not
46
prevent the States from imposing licensing requirements on the
possession of firearms. See Bruen, 142 S. Ct. at 2157 (Alito,
J., concurring) ("Our holding decides nothing about who may
lawfully possess a firearm or the requirements that must be met
to buy a gun"). The Second Amendment certainly does not
"imperil every law regulating firearms." See Powell, 459 Mass.
at 586, quoting McDonald, 561 U.S. at 786. The issue we
confront here, however, is the burden of proof that must
accompany such laws. The Commonwealth may impose licensing
requirements upon the possession of firearms, but in enforcing
those requirements, it must prove beyond a reasonable doubt that
a defendant failed to comply with them. See Herrington, 6 A.3d
at 1245.
The Commonwealth also points to our language in
Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011), where we
said that "[n]othing in the McDonald and Heller decisions has
altered or abrogated the state of the law concerning the
statutory presumption set forth in G. L. c. 278, § 7." The
Commonwealth asserts that, if McDonald and Heller did not alter
the state of the law concerning the burden of proof regarding
proper licensure, then Bruen does not either. In Loadholt,
supra at 726-727, however, we stated that we would "not address
the defendant's claims that . . . G. L. c. 278, § 7, creates an
unconstitutional presumption," because "[t]he defendant did not
47
raise these arguments at trial or in his original brief on
direct appeal" (footnote omitted). See Commonwealth v. Mathews,
450 Mass. 858, 871 (2008) (discounting dicta as precedent).
In addition, we cannot abandon the requirement that the
Commonwealth prove each essential element of a crime simply
because obtaining a conviction would be "a heavy burden for the
prosecution to satisfy." See Mullaney, 421 U.S. at 701. In
Gouse, 461 Mass. at 806, we noted that it would be a "daunting
task" for the Commonwealth to prove beyond a reasonable doubt
that a defendant had no such license. We reasoned that, "[o]n
the other hand, placing the onus on the defendant to produce
some evidence at trial that he was licensed to carry a firearm
would involve the very simple task of produc[ing] that slip of
paper indicating [such authorization]" (quotations and citations
omitted). Id. As we indicated, however, this reasoning is not
applicable where the Second Amendment requires that licensure is
an essential element of the crime. See id. at 801-802. The
Commonwealth's burden of proving the essential element of a
crime "cannot be altered because of any difficulty the
Commonwealth may have in proving [the element] as compared to
the relative ease with which the defendant could prove [its
negative]." See Munoz, 384 Mass. at 509-510.
The defendant argues that licensure is also an essential
element of the crime of unlawful possession of ammunition under
48
G. L. c. 269, § 10 (h). We agree. In Heller, 554 U.S. at 630,
the United States Supreme Court concluded that a requirement
that firearms kept in the home "be rendered and kept inoperable
at all times" violated the Second Amendment, because the
requirement made it "impossible for citizens to use [their
firearms] for the core lawful purpose of self-defense." A
general prohibition on ammunition similarly would render it
impossible for citizens to use their firearms for purposes of
self-defense; in the absence of ammunition, a firearm is
effectively inoperable. See United States v. Miller, 307 U.S.
174, 179-180 (1939) (citing Seventeenth Century commentary on
gun use in America that "[t]he possession of arms also implied
the possession of ammunition"). See, e.g., Association of N.J.
Rifle & Pistol Clubs v. Attorney Gen. N.J., 910 F.3d 106, 116
(3d Cir. 2018), quoting Jackson v. City & County of San
Francisco, 746 F.3d 953, 967 (9th Cir. 2014), cert. denied, 576
U.S. 1013 (2015) ("Regulations that eliminate 'a person's
ability to obtain or use ammunition could thereby make it
impossible to use firearms for their core purpose'"); Jackson,
supra, quoting Ezell v. Chicago, 651 F.3d 684, 704 (7th Cir.
2011) ("'the right to possess firearms for protection implies a
corresponding right' to obtain the bullets necessary to use
them"); Herrington 6 A.3d at 1243 ("from the Court's reasoning
[in Heller], it logically follows that the right to keep and
49
bear arms extends to the possession of handgun ammunition").
Because a general prohibition on ammunition would violate the
Second Amendment, the reasoning that we have applied to G. L.
c. 269, § 10 (a), must apply as well to G. L. c. 269, § 10 (h).
Accordingly, we conclude that the defendant's rights under the
Second Amendment and his rights to due process were violated
when he was convicted of unlawfully possessing ammunition
although the jury were not instructed that licensure is an
essential element of the crime.
Nonetheless, we decline the defendant's suggestion that we
extend this holding to the crime of unlawful possession of a
large capacity feeding device. See G. L. c. 269, § 10 (m). We
previously have held that G. L. c. 140, § 131M, a statute that
proscribes possession of large capacity feeding devices, "is not
prohibited by the Second Amendment, because the right [to bear
arms] 'does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes.'" Cassidy, 479 Mass.
at 540, quoting Heller, 554 U.S. at 625. See Worman v. Healey,
922 F.3d 26, 30, 40 (1st Cir. 2019), cert. denied, 141 S. Ct.
109 (2020) ("Massachusetts law proscribing the sale, transfer,
and possession of certain semiautomatic assault weapons and
large-capacity magazines" does not violate Second Amendment).
Accordingly, we conclude that the defendant was not entitled to
50
an instruction that licensure is an essential element of
unlawful possession of a large capacity feeding device.
Finally, we conclude that our holding here should not be
applied retroactively to convictions that became final prior to
the United States Supreme Court's decision in Bruen, 142 S. Ct.
at 2122. "The retroactivity of a constitutional rule of
criminal procedure turns on whether the rule is 'new' or 'old.'"
See Commonwealth v. Perry, 489 Mass. 436, 463 (2022), quoting
Commonwealth v. Ashford, 486 Mass. 450, 457 (2020). A case
"announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became
final" (emphasis in original). Commonwealth v. Bray, 407 Mass.
296, 301 (1990), quoting Teague v. Lane, 489 U.S. 288, 301
(1989). The rule we announce today is dictated by the Court's
decision in Bruen. Accordingly, our holding applies
prospectively and to those cases that were active or pending on
direct review as of the date of the issuance of that decision.
See Perry, supra at 464.
3. Conclusion. The defendant's convictions on the
indictments charging unlawful possession of a firearm, unlawful
possession of ammunition, and unlawful possession of a loaded
firearm are vacated and set aside, and the matter is remanded to
the Superior Court for entry of judgments of not guilty on those
indictments. The defendant's conviction on the indictment
51
charging unlawful possession of a large capacity feeding device
is affirmed.
So ordered.
LOWY, J. (concurring, with whom Georges, J., joins). I
agree with the court's reasoning and its conclusion that, in
light of the United States Supreme Court's decision in New York
State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), a
defendant's lack of a valid firearms license must be treated as
an essential element of the offense of unlawful possession of a
firearm pursuant to G. L. c. 269, § 10 (a), which the
Commonwealth must prove beyond a reasonable doubt as part of its
case-in-chief.
I write separately to address certain evidentiary issues
concerning the admissibility of firearms licensing records that
will likely arise in pending and future cases as a result of
this ruling. I recognize that the issues I discuss here have
not been directly addressed in the record or the arguments in
this case; nor have the issues been vetted by the full court.
Accordingly, everything that I suggest will need to be tested
and refined in the crucible of future litigation or rulemaking.
Nevertheless, given the high volume of cases involving charges
for unlicensed possession of a firearm or ammunition that are
handled by our courts,1 I venture these suggestions to offer some
guidance.
1 According to data published by the Trial Court's
Department of Research and Planning, in fiscal year 2022, over
6,000 charges for carrying a firearm without a license, carrying
2
In general, as I explain in further detail infra, properly
authenticated firearms licensing records that have been made and
kept in the normal course of an agency's affairs should
ordinarily be admissible under the official records and business
records exceptions to the rule against hearsay. The admission
of these records should not ordinarily violate a defendant's
rights under confrontation clause2 of the Sixth Amendment to the
United States Constitution because such records were not "made
with the primary purpose of creating an out-of-court substitute
for trial testimony" (quotation and citation omitted).
Commonwealth v. Rand, 487 Mass. 811, 815 (2021). Indeed,
depending on how the records are kept, and the witness's level
of familiarity with the records, it may well be that the absence
of the defendant's name from such records would constitute prima
facie evidence of a lack of a license.
a loaded firearm without a license, and possession of a firearm
or ammunition without a firearm identification card, in
violation of G. L. c. 269, § 10, were filed in the District
Court and Boston Municipal Court, and over 2,400 such
indictments were returned in the Superior Court. See https:
//public.tableau.com/app/profile/drap4687/viz/MassachusettsTrial
CourtChargesDashboard/AllCharges [https://perma.cc/25AT-JY2V].
2 See Sixth Amendment to the United States Constitution ("In
all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . .");
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (Sixth
Amendment applies to States via Fourteenth Amendment of United
States Constitution). See also art. 12 of the Massachusetts
Declaration of Rights ("every subject shall have a right . . .
to meet the witnesses against him face to face").
3
Agency certificates or affidavits stating that there is no
record of a firearms license issued to a defendant, unlike
agency lists, are more problematic. Although such certificates
of the nonexistence of an official record are admissible under
an exception to the rule against hearsay, their admission at
trial without a testifying witness from the agency responsible
for keeping such records, and who is familiar with how the
records are kept, made, and stored, will likely be deemed a
violation of a defendant's rights under the confrontation
clause.
1. Records of firearms licensing. "In Massachusetts,
local police departments are responsible for the issuance of
firearms licenses to individuals who reside or have a place of
business within the jurisdiction." Commonwealth v. Adams, 482
Mass. 514, 531 (2019).3 Local police departments are required to
3 "Most licenses are issued by municipal police departments.
The State Police issues Gun Club Licenses and is also
responsible for Licenses to Carry for active and retired
troopers. The Firearms Records Bureau issues non-resident
licenses and resident alien permits." Executive Office of
Public Safety and Security, Data About Firearms Licensing and
Transactions, https://www.mass.gov/info-details/data-about-
firearms-licensing-and-transactions [https://perma.cc/L7SE
-FFJK]. See G. L. c. 140, § 121 (defining "licensing authority"
as "the chief of police or the board or officer having control
of the police in a city or town, or persons authorized by
them"); G. L. c. 140, § 129B (1) ("Any person residing or having
a place of business within the jurisdiction of the licensing
authority . . . may submit to the licensing authority an
application for a firearm identification card, or renewal of the
4
make certain records regarding firearms licenses and to forward
copies of applications, issued licenses, and notices of
revocation and suspension to the Department of Criminal Justice
Information Services, where those records are collected by the
firearms records bureau.4
same . . ."); G. L. c. 140, § 131 (d) ("A person residing or
having a place of business within the jurisdiction of the
licensing authority . . . may submit to the licensing authority
or the colonel of state police an application for a license to
carry firearms, or renewal of the same").
4 See Commonwealth v. Gouse, 461 Mass. 787, 805 (2012)
(local police departments required to record all issued licenses
and notify Department of Criminal Justice Information Services);
G. L. c. 140, § 129B (4) ("Notices of revocation and suspension
shall be forwarded to the commissioner of the department of
criminal justice information services and the commissioner of
probation and shall be included in the criminal justice
information system"); G. L. c. 140, § 129B (13) ("Upon issuance
of a firearm identification card under this section, the
licensing authority shall forward a copy of such approved
application and card to the executive director of the criminal
history systems board . . ."); G. L. c. 140, § 131 (f) ("Notices
of revocation and suspension shall be forwarded to the
commissioner of the department of criminal justice information
services and the commissioner of probation and shall be included
in the criminal justice information system"); G. L. c. 140,
§ 131 (n) ("Upon issuance of a license to carry or possess
firearms under this section, the licensing authority shall
forward a copy of such approved application and license to the
commissioner of the department of criminal justice information
services . . ."); Municipal Records Retention Schedule (updated
Sept. 1, 2022), at 89, https://www.sec.state.ma.us/arc/arcpdf
/Municipal_Retention_Schedule_20220901.pdf [https://perma.cc
/C9TT-7N53] (providing for retention by municipalities of
firearm identification cards and license to carry applications
until superseded); Executive Office of Public Safety and
Security, Data about Firearms Licensing and Transactions,
https://www.mass.gov/info-details/data-about-firearms-licensing-
and-transactions#license-applications-&-active-licenses
5
2. Admissibility under exceptions to the rule against
hearsay. If properly authenticated, firearms licensing records
like those described supra would likely qualify for admission
under the "official records" exception to the rule against
hearsay. See G. L. c. 233, § 76; Mass. R. Crim. P. 40 (a), 378
Mass. 917 (1979); Mass. G. Evid. § 803(8)(A) (2022). The
Reporter's Notes to Mass. R. Crim. P. 40 (a) define "official
records" as "including records of any governmental entity, . . .
and more particularly as 'all documents prepared by public
officials pursuant to a duty imposed by law or required by the
nature of their offices'" (citation omitted).
Firearms licensing records may also be admissible under the
business records exception to the rule against hearsay, where
the records have been made in good faith in the regular course
of business before the beginning of the proceeding in which they
are offered and it was the regular course of the agency to make
such records at the time of the transaction or within a
reasonable time thereafter. See G. L. c. 233, § 78;
[https://perma.cc/MS43-M2XW] ("The Firearms Records Bureau is
the Commonwealth's repository for all firearms license and
transaction data. . . . Massachusetts's electronic license
check system . . . is updated by police departments, which
process license applications and update license statuses, and by
firearms dealers, who enter records of their transactions");
Firearms Records Bur. v. Simkin, 466 Mass. 168, 168 n.2 (2013)
(firearms records bureau is part of Department of Criminal
Justice Information Services).
6
Commonwealth v. Fulgiam, 477 Mass. 20, 39-42, cert. denied, 138
S. Ct. 330 (2017) (ten-print fingerprint cards made by police
were properly admissible under business records exception); id.
at 47 (Lowy, J., concurring); Mass. G. Evid. § 803(6)(A).
The exceptions to the rule against hearsay and the rules of
criminal procedure also permit the absence of a firearms license
in the defendant's name to be shown by an authenticated written
statement from the legal custodian of the firearms licensing
records, or a deputy, that after diligent search, no record
could be found of a valid firearms license issued in the name of
the defendant at the time of the offense. See Mass. R. Crim. P.
40 (b), 378 Mass. 917 (1979) (properly authenticated "written
statement that after diligent search no record or entry of a
specified tenor is found to exist in the records designated by
the statement . . . is admissible as evidence that the records
contain no such record or entry"); Mass. G. Evid. § 803(10)
("certification under [§] 902 . . . that a diligent search
failed to disclose a public record or statement is admissible in
evidence if the testimony or certification is offered to prove
that [A] the record or statement does not exist, or [B] a matter
did not occur or exist, if a public office regularly kept a
record or statement for a matter of that kind"); Mass. G. Evid.
§ 902(b) ("An official record kept within the Commonwealth, or
an entry therein, when admissible for any purpose, may be
7
evidenced . . . by a copy attested by the officer having legal
custody of the record, or by that officer's deputy").5
Finally, I note that under the exceptions to the rule
against hearsay, witness testimony may also suffice to show the
absence of an official record, such as the record of a firearms
license, as provided in Mass. G. Evid. § 803(10). Care should
be taken in relying on such testimony alone for at least two
reasons: (1) there must be an adequate foundation for the
witness's testimony explaining his or her sufficient familiarity
with how the record was created, maintained, and accessed; and
(2) insofar as the witness testifies as to the contents of
computer-stored records, those records may constitute hearsay.
See Commonwealth v. Royal, 89 Mass. App. Ct. 168, 169-173 (2016)
(State police trooper's testimony that he checked motor vehicle
5 Technically, a statement as to the nonexistence of an
agency record is not hearsay, because it does not involve an
out-of-court assertion:
"As a general rule, silence is not classified as hearsay.
Logically, therefore, the absence of an entry in a public
record should not be considered hearsay when offered for
that purpose, and should be admissible over a hearsay
objection as a basis to infer that the event did not occur
or the condition did not exist."
5 C.S. Fishman & A. Toomey McKenna, Jones on Evidence § 34:54
(7th ed. 2023). Nevertheless, to avoid any confusion, the
drafters of the Federal Rules of Evidence treated testimony or
certifications concerning the nonexistence of a public record as
an exception to the rule against hearsay, see id., and the
Massachusetts Guide to Evidence has taken the same approach.
8
registry database and defendant's license was listed as
suspended was inadmissible hearsay because such records were
computer-stored, but "the Commonwealth could have proved the
element of license suspension without implicating the rule
against hearsay if it had introduced a properly certified copy
of a registry driving history record showing that the
defendant's license had been suspended").
3. Admissibility under confrontation clause. The fact
that a firearms licensing record, or a certificate attesting to
the nonexistence of such a record, may be admissible under
exceptions to the rule against hearsay does not suffice to show
that the record or certificate of its nonexistence can also meet
the distinct requirements of the confrontation clause in a
criminal case. See Commonwealth v. Greineder, 464 Mass. 580,
585 n.4, cert. denied, 571 U.S. 865 (2013) ("There is an
important distinction between satisfying the mandates of common-
law evidentiary rules and satisfying the mandates of the
confrontation clauses of the Federal and State Constitutions.
In criminal cases, out-of-court statements are only admissible
if they satisfy both; failure to satisfy either the applicable
rules of evidence or the Federal and State Constitutions will
result in the exclusion of evidence").
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the
United States Supreme Court held that the petitioner's rights
9
under the confrontation clause were violated where sworn written
certificates from State laboratory analysts, describing the
substance seized from the petitioner as cocaine, were admitted
in lieu of live testimony at the petitioner's trial on charges
of cocaine distribution and trafficking. See id. at 308-311,
329. In reaching this conclusion, the Court reasoned:
"Business and public records are generally admissible
absent confrontation not because they qualify under an
exception to the hearsay rules, but because -- having been
created for the administration of an entity's affairs and
not for the purpose of establishing or proving some fact at
trial -- they are not testimonial. Whether or not they
qualify as business or official records, the analysts'
statements here -- prepared specifically for use at
petitioner's trial -- were testimony against petitioner,
and the analysts were subject to confrontation under the
Sixth Amendment."
Id. at 324. Thus, the critical question, for purposes of
determining whether admission of an agency record violates the
confrontation clause, is whether the record was created in the
normal course of the agency's affairs, or whether it is
"testimonial," that is, whether it was created for the purpose
of proving some fact at trial.
It is also noteworthy that the Melendez-Diaz Court cited a
line of cases where "the prosecution sought to admit in[]
evidence a clerk's certificate attesting to the fact that the
clerk had searched for a particular relevant record and failed
to find it." Id. at 323. In those cases, the Court indicated,
the clerk's statement was testimonial in effect because it
10
"would serve as substantive evidence against the defendant whose
guilt depended on the nonexistence of the record for which the
clerk searched," and consequently "the clerk was . . . subject
to confrontation." Id.6
In accord with Melendez-Diaz, this court has held that the
admission of documents at trial that were made contemporaneously
with the underlying event in the regular course of a business's
or an agency's affairs does not violate the confrontation clause
because such documents are not testimonial. See, e.g., Fulgiam,
477 Mass. at 43 (admission of ten-print fingerprint cards made
by State police did not violate confrontation clause);
Commonwealth v. Siny Van Tran, 460 Mass. 535, 552 (2011)
(admission of passenger manifest and ticket inquiry made by
airline did not violate confrontation clause).
But where a document is subsequently created by an agency
to establish a fact at trial, this court has held that it is
testimonial and its admission violates the confrontation clause,
even though the document is based on preexisting agency records.
For example, in Commonwealth v. Parenteau, 460 Mass. 1 (2011),
6 Later that year, the Supreme Court also vacated a decision
of the United States Court of Appeals for the Ninth Circuit,
which had held that a clerk's certificate as to the nonexistence
of a record was not testimonial, and remanded the case "for
further consideration in light of Melendez-Diaz." See United
States v. Norwood, 555 F.3d 1061, 1066 (9th Cir.), vacated and
remanded, 558 U.S. 983 (2009). See also United States v.
Norwood, 595 F.3d 1025, 1030 (9th Cir. 2010) (on remand).
11
where the defendant had been charged with driving after his
license had been revoked, this court held that the admission of
a certificate from the registry of motor vehicles created after
the defendant's arrest and attesting that a notice of license
revocation had been mailed to the defendant violated the
confrontation clause where it was presented at the defendant's
trial to prove that he had received notice of the revocation
without any other testimony from the registry. See id. at 2-3.
The court noted that the actual notice of the defendant's
license revocation constituted a business record that had been
made and kept in the ordinary course of the registry's affairs,
but it did not show that the notice actually had been mailed on
the date when it was created. See id. at 10. If the registry
had made a contemporaneous record of the mailing as part of the
administration of its regular business affairs, then it would
have been properly admissible at the defendant's trial. But the
registry certificate that was presented at trial was dated two
years later, three months before the trial. The court therefore
concluded that it had been created for the purpose of
establishing an essential fact at trial and did not constitute a
nontestimonial business record. See id.
Since Melendez-Diaz, this court has not had occasion to
consider whether admission of a certificate as to the
nonexistence of a record would violate the confrontation clause,
12
but a number of other courts have. Most pertinently for
purposes here, the Supreme Court of New Jersey has held that,
where a defendant was tried on various gun charges, his
confrontation right was violated by the admission of an
affidavit from a nontestifying witness attesting that a search
of the State's firearm registry database produced no evidence
that a handgun permit had been issued to the defendant. See
State v. Carrion, 249 N.J. 253, 263-264, 272-274 (2021). The
court observed that, although the underlying firearm license
database was not itself testimonial in character, the creation
of a document attesting to a search of that database for the
purpose of prosecuting the defendant was. Id. at 272. The
defendant's confrontation right was violated because, "[w]ith
only the affidavit, and with no opportunity to question the
officer knowledgeable about how the search of the database was
performed, [the defendant] could not explore whether the officer
used the correct date of birth, name, or other identifying
information such as a [S]ocial [S]ecurity number in order to
generate a correct search of the database, and what information
that search produced." Id. at 272. Other courts have similarly
held since Melendez-Diaz that the confrontation clause is
violated by the admission in a criminal trial of an affidavit
attesting to the nonexistence of a record without testimony from
13
a witness.7 This case law indicates that admission of an
affidavit stating that a diligent search of the firearms records
did not disclose any record in the name of a defendant would
likely violate the confrontation clause if presented without
testimony from a witness.
Instead, to meet the requirements of the confrontation
clause, the Commonwealth would likely have to present a witness
who actually undertook a search of the firearms licensing
records and determined that the defendant lacked a license. As
7 See, e.g., Government of Virgin Islands v. Gumbs, 426 Fed.
Appx. 90, 93–94 (3d Cir. 2011), cert. denied, 565 U.S. 1125(2012) (lower court erred in admitting certificate as to
nonexistence of gun license without affording defendant
opportunity to confront person who prepared certificate); United
States v. Orozco-Acosta, 607 F.3d 1156, 1161 n.3 (9th Cir.
2010), cert. denied, 562 U.S. 1154 (2011) (overruling prior
decisions that had held that certificates of nonexistence of
records were not testimonial because those decisions were
inconsistent with Melendez-Diaz); United States v. Martinez-
Rios, 595 F.3d 581, 586-587 (5th Cir. 2010) (admission of
certificate of nonexistence of record, which indicated that
defendant had not received consent to reenter United States,
violated defendant's confrontation right where no testimony was
presented from analyst who conducted records search); Tabaka v.
District of Columbia, 976 A.2d 173, 175-176 (D.C. 2009)
(department of motor vehicles certificate that its records
revealed no evidence of operator's permit having been issued to
appellant was testimonial and therefore inadmissible over
objection without corresponding testimony by official who had
performed search); Washington v. State, 18 So. 3d 1221, 1223-
1224 (Fla. Dist. Ct. App. 2009) (certificate of contractor's
nonlicensure was testimonial, and its admission violated his
confrontation rights); State v. Jasper, 174 Wash. 2d 96, 113-116
(2012) ("A substantial majority of courts have held since
Melendez-Diaz that clerk certifications attesting to the
nonexistence of a public record are testimonial statements
subject to confrontation"; citing cases and following suit).
14
the court pointed out in Carrion, the confrontation clause was
violated in that case because the defendant was not given an
"opportunity to question the officer knowledgeable about how the
search of the database was performed." Carrion, 249 N.J. at
272. See Bullcoming v. New Mexico, 564 U.S. 647, 661-663 (2011)
(surrogate testimony by analyst who did not actually perform
blood alcohol test did not meet requirements of confrontation
clause); Commonwealth v. Sullivan, 478 Mass. 369, 376-377 (2017)
(evidence that deoxyribonucleic acid [DNA] profile extracted
from crime scene matched defendant's DNA in national database
was improperly admitted hearsay because those responsible for
conducting database testing did not testify and were not subject
to cross-examination).8
This is not to say, however, that the testifying witness
8
must necessarily be the same person who conducted the original
search of the firearms licensing records that led to the charge
against the defendant. See United States v. Soto, 720 F.3d 51,
59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing
Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme
Court's Bullcoming opinion, joined only by Justice Scalia,
Justice Ginsburg observed that the [S]tate could have avoided a
Sixth Amendment violation when it realized that the original
scientist was unavailable to testify 'by asking [the testifying
analyst] to retest the sample, and then testify to the results
of his retest rather than to the results of a test he did not
conduct or observe.' . . . Justice Kennedy, with Chief Justice
Roberts, Justice Breyer, and Justice Alito, in dissent,
concluded that testimony from a knowledgeable lab representative
is sufficient under the Sixth Amendment. . . . Thus, it appears
that six justices would find no Sixth Amendment violation when a
second analyst retests evidence and testifies at trial about her
conclusions about her independent examination").
15
For example, testimony from a representative from the
firearms records bureau or a police officer, who is familiar
with the firearms licensing records and how they are kept, and
who undertook a search of those records and did not find a
license in the defendant's name, might well meet the
requirements of the confrontation clause. Whether such a
witness is qualified to testify about the search is a
preliminary question for the trial judge to decide. See Mass.
G. Evid. § 104(a).
On the other hand, the admission of properly authenticated
copies of preexisting firearms licensing records that were made
and kept in the ordinary course of business would not violate
the confrontation clause, because they are not testimonial.
Such records might be used, for example, to show that a
defendant's name did not appear in the record, that a
defendant's firearms license application was denied, or that the
license was suspended or revoked, or that it expired.
It is also conceivable, depending on how the records are
compiled, or may be compiled in the future in response to this
court's decision today, that a copy of an excerpted alphabetical
list of firearms licenses might reveal the absence of a license
held by a defendant. Moreover, depending on how such records
are complied, such a list may constitute prima facie evidence
that the defendant is not licensed to carry a firearm.
16
In a criminal case in the Commonwealth, "[p]rima facie
evidence means that proof of the first fact [(basic fact)]
permits, but does not require, the fact finder, in the absence
of competing evidence, to find that the second fact [(resultant
fact)] is true beyond a reasonable doubt." Mass. G. Evid.
§ 302. " Where there is contrary evidence, the first fact
continues to constitute some evidence of the fact to be proved,
remaining throughout the trial probative on issues to which it
is relevant." Id. Put another way, "[i]n criminal cases, when
evidence 'A' is prima facie evidence of fact 'B,' then, in the
absence of competing evidence, the fact finder is permitted but
not required to find 'B' beyond a reasonable doubt."
Commonwealth v. Maloney, 447 Mass. 577, 581 (2006). "The
designation of prima facie evidence in this context is
'structurally the same as' a 'permissive inference'" that
"satisfies the Commonwealth's burden of production as to one or
more elements of a crime." Commonwealth v. Littles, 477 Mass.
382, 386 (2017), quoting Commonwealth v. Pauley, 368 Mass. 286,
293-293 (1975). I recognize that most, if not all, prima facie
designations in the criminal context in the Commonwealth are a
creation of statute. See Mass. G. Evid. § 302(c) note.9 And of
9 "There are numerous statutes that designate certain
evidence as having prima facie effect. See, e.g., G. L. c. 22C,
§ 39 (certificate of chemical analysis of narcotics); G. L.
17
course, the Legislature is free to enact such a statute in the
context of firearm licenses, if it so chooses. As such, in the
context of charges relating to unlicensed firearms, it is
conceivable that, depending on how records are complied, an
excerpted alphabetical list of firearms licenses that did not
contain a defendant's name may well constitute prima facie
evidence that would "permit[] but not require[ a jury] to find
[the defendant to be unlicensed] beyond a reasonable doubt."
Maloney, supra.
4. Notice-and-demand procedure. In Melendez-Diaz, 557
U.S. at 326, the Supreme Court also noted that many States have
adopted "notice-and-demand statutes," which "require the
prosecution to provide notice to the defendant of its intent to
use an analyst's report as evidence at trial, after which the
defendant is given a period of time in which he may object to
the admission of the evidence absent the analyst's appearance
live at trial," or otherwise forfeit that right. The Court made
clear that these statutes do not violate the defendant's rights,
because "[t]he defendant always has the burden of raising his
Confrontation Clause objection," and "notice-and-demand statutes
c. 46, § 19 (birth, marriage, or death certificate); G. L.
c. 90, [§ 24 (4)] (court record of a prior conviction if
accompanied by other documentation); G. L. c. 185C, § 21 (report
of inspector in housing court); G. L. c. 233, § 79F (certificate
of public way); G. L. c. 269, § 11C (firearm with obliterated
serial number)." Mass. G. Evid. § 302(c) note.
18
simply govern the time within which he must do so" (emphases in
original). Id. at 327.
In 2013, rule 803(10) of the Federal Rules of Evidence was
amended to "incorporate[], with minor variations, a 'notice-and-
demand' procedure that was approved by the Melendez-Diaz Court."
2013 Advisory Committee Note to Fed. R. Evid. 803. The amended
rule provides that the rule against hearsay does not exclude a
certification that a diligent search failed to disclose a public
record or statement if, among other prerequisites, "in a
criminal case, a prosecutor who intends to offer a certification
provides written notice of that intent at least [fourteen] days
before trial, and the defendant does not object in writing
within [seven] days of receiving the notice -- unless the court
sets a different time for the notice or the objection." Fed. R.
Evid. 803(10)(B).
Similarly, in Carrion, the New Jersey Supreme Court adopted
a practice of requiring a defendant to inform the judge and the
prosecution of a demand to have the State produce an appropriate
witness to testify to a search of the State firearms permit
database. Failure to make such a demand waives the defendant's
confrontation right. See Carrion, 249 N.J. at 273-274. The
court said that this practice would address the State's "valid
administrative concern" that "[r]equiring in-person testimony by
the person who conducted a search of firearm registry records
19
that yielded no results under a defendant's name for a gun
permit -- in every firearm possession prosecution -- could be
burdensome and could lead to administrative inconvenience and
waste of resources." Id. at 273.
I suggest that courts handling prosecutions for possession
of a firearm without a license should consider adopting a
procedure similar to that in Fed. R. Evid. 803(10)(B) as a
discovery order and in the filing of pretrial conference
reports. This would provide an orderly and uniform procedure
for determining whether the Commonwealth may rely on a
certificate that there is no firearms license in the name of the
defendant, and give the prosecution sufficient time to secure a
testifying witness if the defendant objects.10 This procedure
might also serve to mitigate, to some extent, the burden on the
Commonwealth that would otherwise result if it were required to
produce a testifying witness in every trial involving a charge
of unlicensed possession of a firearm.
10Of course, it may well be that the Commonwealth,
nonetheless, calls witnesses who have reviewed the records, and
offers documents in which the defendant's name does not appear,
in recognition of its burden of persuasion. And it may well be
that defendants prefer admission of a certificate of the
nonexistence of a record to testimony from witnesses and
documentation better to advance their arguments as to reasonable
doubt.