Heard: November 7, 2016.
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
cases were tried before Dyanne J. Klein, J.
L. Sheketoff for the defendant.
Leigh Harris, Assistant District Attorney, for the
Present: Cypher, Massing, & Sacks, JJ.
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.
incident in question arises from a roadside confrontation
between the defendant and another driver. 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.
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
Exclusion of antique firearm evidence.
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. 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