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Commonwealth v. Kang

Appeals Court of Massachusetts, Middlesex

March 16, 2017

COMMONWEALTH
v.
BYUNG-JIN KANG.

          Heard: November 7, 2016.

         Firearms. Evidence, Firearm. Practice, Criminal, Instructions to jury. Complaints received and sworn to in the Newton Division of the District Court Department on February 15, 2013, and June 9, 2014.

         The cases were tried before Dyanne J. Klein, J.

          Robert L. Sheketoff for the defendant.

          Susan Leigh Harris, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Massing, & Sacks, JJ.

          CYPHER, J.

         The defendant, Byung-jin Kang, was convicted of carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(n), and carrying a firearm without a license in violation of G. L. c. 269, § 10 (a.) . On appeal, the defendant claims that he was improperly denied the opportunity to present the affirmative defense of the "antique" firearm exemption from licensure requirements, arguing that (1) evidence related to his defense was excluded; and (2) the judge improperly denied his request for a jury instruction on the antique firearm exemption. We affirm.

         Facts.[1]

         The incident in question arises from a roadside confrontation between the defendant and another driver.[2] During this confrontation, the second driver seized a firearm from the defendant and contacted police after the defendant left the scene in his vehicle. Police recovered this firearm, a small silver revolver, from the pavement near the other driver, and located the defendant a short distance from the scene. Officers discovered the firearm to be loaded, and later ballistic testing revealed it was capable of firing.

         At trial, the defendant did not contest possession. He testified that the firearm was his, and that he was aware that it was loaded. The defendant claimed, however, that the Commonwealth had failed to meet its burden to prove operability, arguing that the chain of custody evidence was insufficient, as were the qualifications of the police officer conducting the test-firing.

         Discussion.

         1. Exclusion of antique firearm evidence.

         Prior to trial, the defendant indicated his intent to rely on the defense of exemption from the firearm licensure requirements for an antique firearm manufactured prior to 1900.[3] See Commonwealthv.Jefferson, 461 Mass. 821 (2012). In support of his defense, the defendant wanted to testify that he had purchased the firearm from "the online [Internet] store, antiqueguns.com, " from "a section of the store entitled Pre-1898 manufactured firearms." He sought also to testify that he was interested in and had researched antique firearm ownership, and that he "specifically ...


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