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Commonwealth v. Ferguson

Appeals Court of Massachusetts

June 25, 2015

Commonwealth
v.
Duncan Ferguson

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals fro his convictions of unlawful possession of a rifle and ammunition without a firearm identification (FID) card, both in violation of G. L. c. 269, § 10( h ), and unlawful possession of a large capacity feeding device in violation of G. L. c. 269, § 10( m ). He argues that he lawfully possessed the rifle and ammunition because the ninety-day period for seeking judicial review of the denial of his application for an FID card had not elapsed at the time he was charged with unlawful possession. He also claims that the trial judge erred by refusing his request to ask potential jurors a specific individual voir dire question and that the prosecutor's references to " military" weapons were prejudicial. We reject these claims and affirm the convictions.

Discussion.

1. Unlawful possession of firearms.

The defendant contends that he lawfully possessed his rifle and ammunition on the date he was arrested because his application for an FID card had been denied just eight days before his arrest, and his time for seeking judicial review of the denial had not yet expired.

Under G. L. c. 140, § 129D, as appearing in St. 1986, c. 481, § 1, a person whose application for an FID card has been " revoked, suspended or denied shall without delay deliver or surrender, to the licensing authority where he resides, all firearms, rifles, shotguns and machine guns and ammunition which he then possesses unless an appeal is pending " (emphasis supplied).[1] Although the defendant concededly did not have an appeal pending, he argues that the Legislature intended a more liberal interpretation of the " unless an appeal is pending" proviso, encompassing the ninety-day window for seeking judicial review. See G. L. c. 140, § 129B(5). Because a person cannot appeal from the denial of an FID card application until receiving notification of the denial, he argues, the literal language of the statute could apply " only in the impossible scenario where the appeal predates the decision under appeal." He argues that his interpretation of the statute is necessary to prevent the " unless an appeal is pending" clause from being superfluous, and the statute as a whole from being unconstitutionally ambiguous.

We need not address the defendant's statutory construction argument, however, because he was not authorized to possess his weapons and ammunition when he applied for his FID card.[2] See Commonwealth v. Paasche, 391 Mass. 18, 21, 459 N.E.2d 1223 (1984) (" We do not decide constitutional questions unless they must necessarily be reached" ). The defendant's FID card had expired in 2000, and his possession of an expired FID card did not immunize him from criminal liability. Under G. L. c. 140, § 129B(12), inserted by St. 1998, c. 180, § 29, " any person in possession of a non-large capacity rifle or shotgun whose firearm identification card . . . is invalid for the sole reason that it has expired . . . shall be subject to a civil fine of not less than $500 nor more than $5,000 and the provisions of said section 10 of said chapter 269 shall not apply." However, § 129B(12) further provides that this exemption from criminal punishment " shall not apply if . . . an application for renewal of such firearm identification card has been denied." G. L. c. 140, § 129B(12)(iii). As the defendant's application was denied, he cannot avail himself of this exemption.[3] Accordingly, the defendant unlawfully possessed his rifle and ammunition, and his belated and unsuccessful application for an FID card did not make his possession lawful.[4]

2. Voir dire questions.

The defendant made a written request for four individual voir dire questions on the subject of guns, including whether the jurors could be fair and impartial even though the defendant was accused of " possessing a large capacity firearm sometimes referred to as an 'assault rifle.'" The judge agreed to ask two individual voir dire questions on the subject, including whether the jurors had " any strong feelings about firearms that would impair their ability to be a fair and impartial juror." The defendant objected that the question did not specifically refer to " assault rifles," and asserts on appeal that the judge erred in denying this request.

We disagree. Apart from mandatory statutory questions and certain categories of cases where individual voir dire is required -- none of which is implicated here -- " questions to be asked during voir dire are within the broad discretion of the judge." Commonwealth v. Lopes, 440 Mass. 731, 736, 802 N.E.2d 97 (2004). The trial judge exercised this discretion to fashion individual voir dire questions probing the jurors' experience with and attitudes toward firearms. The defendant has not made " a clear showing of abuse of discretion." Commonwealth v. McCoy, 456 Mass. 838, 842, 926 N.E.2d 1143 (2010).

3. References to " military" weapons.

The evidence showed that the defendant possessed a " .50 Beowulf caliber Alexander Arms/Bush Master model Beowulf/XM15-E25S semi-automatic rifle" equipped with an advance combat optical gun sight; a " 762 by 39 millimeter caliber Stern Ruger & Company model Ruger mini 30 semi-automatic rifle" (with a " Russian military grade application live cartridge" similar to an AK47); and ammunition for both, including a detachable feeding device, or magazine, capable of holding thirty rounds.[5] These items were all introduced in evidence.

The defendant objected to the prosecutor's occasional characterizations of these weapons as " military" weapons in her opening statement, direct examination of the firearms expert, and in her closing. Of course, prosecutors are permitted to base their arguments on the evidence and the fair inferences that can be drawn from it, Commonwealth v.Kozec, 399 Mass. 514, 516, 505 N.E.2d 519 (1987), and the evidence supported the prosecutor's references. Nonetheless, the trial judge sustained the defendant's objection to the closing argument, stating that the comment was " not called for" and " [u]nnecessary." To the extent the prosecutor's references to " military" style weapons improperly played on the jury's emotions or prejudices, id. at 517, the trial judge's " prompt, direct, and forceful curative instructions[6] ...


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