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Commonwealth v. Brown

Appeals Court of Massachusetts, Worcester

March 31, 2017

COMMONWEALTH
v.
TYRIEK BROWN.

          Heard: February 6, 2017.

         Indictments found and returned in the Superior Court Department on December 13, 2013.

         The cases were tried before William F. Sullivan, J.

          Deborah Bates Riordan for the defendant.

          Michelle R. King, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Milkey, & Neyman, JJ.

          MILKEY, J.

         During an inventory search of the car that the defendant had been driving, a State trooper discovered a loaded handgun. Based on this, the defendant was indicted on two related counts: unlawful possession of a firearm, and unlawful possession of a loaded firearm. See G. L. c. 269, § 10 (a.) & (n). A Superior Court jury convicted him of those charges.[1] His appeal primarily focuses on a question of law that the Supreme Judicial Court flagged without answering: "whether, to be convicted of unlawful possession of a loaded firearm, a defendant must know that the firearm he possessed was loaded." Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7 (2012). The Commonwealth maintains that proof of such knowledge is not required. Although we are not unsympathetic to the textual arguments on which the Commonwealth relies, existing case law requires us to conclude that the Commonwealth must prove that the defendant knew that the gun was loaded. We further conclude that the evidence here was legally insufficient to establish such knowledge, and that the defendant therefore is entitled to a judgment of acquittal on the indictment for unlawfully possessing a loaded firearm. We otherwise affirm.

         Background.

         On July 4, 2013, a State trooper stopped the car that the defendant was driving because of an inoperable tail light. After learning that the defendant's driver's license had been suspended, the trooper placed him in custody. Although the defendant had two passengers with him, neither possessed a valid license, and the trooper therefore determined that the car needed to be towed. During an inventory search of the car, the trooper discovered a handgun in the console between the rear passenger seats. There were five bullets in the gun's magazine.

         While the defendant was being transported to the police station by a second trooper, he made various statements regarding the gun.[2] He initially stated his belief that the passenger who had been seated in the front seat of the car possessed a license for it (something that was never substantiated). The defendant then stated that he had obtained the gun during an incident at his former girl friend's house prior to the stop. According to him, the former girl friend's sister was waving the gun around during an argument she was having with an unknown man. The defendant stated that he disarmed the sister, and, upon returning to the car, handed the gun to the rear seat passenger (intending to dispose of it later).

         Meanwhile, the rear seat passenger was giving a different story to the police. She stated that the gun was hers and that she owned it in order to protect herself (having recently been the victim of a violent crime). She had placed the gun in the car's rear console, she claimed, because it made her purse heavy. The woman did not testify at the defendant's trial, but her statements about the gun were admitted as statements against penal interest.

         At the charge colloquy, the judge indicated that he intended to use the model jury instructions, which did not include an instruction that the Commonwealth had to prove that the defendant knew the gun was loaded. The defendant raised no objection. During their deliberations, the jury themselves honed in on the knowledge issue, asking the judge: "Does the defendant have to know whether the firearm was loaded, or just that he possessed it and it was loaded?" After discussing the matter with counsel, [3] the judge did not answer the jury's question directly, but he reiterated the elements that the Commonwealth had to prove without including among them knowledge that the gun was loaded.[4] The jury found the defendant guilty of unlawful possession of a firearm and of unlawful possession of a loaded firearm.[5]

         Discussion.

         The defendant primarily focuses on the loaded firearm charge. He makes two related arguments: (1) the Commonwealth presented legally insufficient evidence that he knew the gun was loaded, and (2) in any event, the judge's failure to instruct the jury that the Commonwealth had to prove such knowledge created a substantial risk of a miscarriage of justice (entitling him to a new trial). Both arguments depend on whether proof is required that the defendant knew the gun was loaded. We turn to that question, examining first the language of the statute, the principal source of legislative intent. Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct. for the County of Worcester, 446 Mass. 123, 124 (2006) .

         1. Whether knowledge is required.

         Subsections (a.) and (n) of G. L. c. 269, § 10, operate in tandem. Subsection 10 (a.) makes it a crime to "knowingly" possess a firearm outside one's home or place of work without the requisite authority.[6] For purposes of § 10 (a.), standing alone, it is beside the point whether the firearm was "loaded or unloaded." A violation of that subsection is subject to various sanctions, including a mandatory minimum term of incarceration. If the firearm that was knowingly and unlawfully possessed was loaded, then the defendant is subject to additional jail time under § 10(n).[7] See Commonwealthv. Dancy,90 Mass.App.Ct. 703, 705 (2016). Thus, ยง 10(n) does not set forth ...


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