Heard: February 6, 2017.
found and returned in the Superior Court Department on
December 13, 2013.
cases were tried before William F. Sullivan, J.
Deborah Bates Riordan for the defendant.
Michelle R. King, Assistant District Attorney, for the
Present: Cypher, Milkey, & Neyman, JJ.
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. 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.
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
the defendant was being transported to the police station by
a second trooper, he made various statements regarding the
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).
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.
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,  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. The jury found
the defendant guilty of unlawful possession of a firearm and
of unlawful possession of a loaded firearm.
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) .
Whether knowledge is required.
(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. 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). See Commonwealthv.
Dancy,90 Mass.App.Ct. 703, 705 (2016). Thus, §
10(n) does not set forth ...